Helping Hands Home Care, Inc. D/B/A at Home Healthcare, Johnny James Grice v. Home Health of Tarrant County, Inc. D/B/A Home Health Specialties

REVERSE AND RENDER IN PART; AFFiRM IN PART; Opinion flied
November21 ,2012.

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No. 05-08-01657-CV

HELPING HANDS HOME CARE, INC. DIBIA AT HOME HEALTHCARE; LAURA
DELZELL; AND JOHNNY JAMES GRICE, Appellants/Cross Appeilees

HOME HEALTH OF TARRANT COUNTY, INC. DIBIA
HOME HEALTh SPECIALTiES, Appellee/Cross Appellant

On Appeal from the 160th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 06-033514!

OPINION
Before Justices Moseley, Richter, and Myers
Opinion By Justice Moseley

Home Health of Tarrant County, Inc. d/b/a/ Home Health Specialties (Specialties) sued

Helping I-lands Home Care, Inc. d/b/a At Home Healthcare (Helping Hands), Laura Delzell, and

Johnny James Grice seeking lost profits based on claims of breach of employment contracts, breach

of fiduciary duties, and intentional interference with contracts and future business relations. The

alleged damages flow from Specialties’s loss of eleven accounts. After suit was filed and before

trial, Specialties filed for bankruptcy and, on January 1, 2008, sold its business, except for this

lawsuit. The jury found in favor of Specialties and the trial court entered judgment against
appellants for $500,000.’ However, although thejury awarded attorney’s fees to Specialties, the trial

court granted Helping Hands’s motion for judgment notwithstanding the verdict (JNOV) and

Specialties did not receive an award for attorney’s fees.

On appeal appellants complain, among other things, that the evidence is legally and factually

insufficient to support the july’s findings that they breached any duties and that any breach caused

Specialties’s claimed losses. They also claim there is no basis for awarding damages to Specialties

based on evidence oflost profits accruing after Specialties sold its business and, because ofthe sale,

the evidence is legally and factually insufficient to award damages for lost profits after the date of

sale. Specialties cross-appealed asserting the trial court erred by granting JNOV and not awarding

the attorney’s fees found by the jury.

We conclude the evidence is legally and factually sufficient to support thejury’s findings that

appellants were liable for breach of certain employment contracts and intentional interference with

agreements for Specialties to provide medical services to its clients. We also conclude the trial court

did not err by awarding damages based on lost accounts up to the time Specialties was sold.

However, we conclude the trial court erred by awarding lost profits accruing after the sale. Finally,

we conclude the trial court did not err by refusing to award Specialties its attorney’s fees. We affirm

the trial court’s final judgment in part and reverse and render in part.

I. iNTRODUCTION

A. Factual Background

Both Specialties and Helping 1-lands provided private duty in-home nursingcare for seriously

ill pediatric patients. In June 2005, Helping Hands hind a former Specialties officer, appellant

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T hejudgmcnt also awarded pro-judgment interest on the lost piofits scorning up to trial. as well as post-judgment at on the entire award.

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 .Johimv James (irice, as its chief operating officer. In Februar 2006. Helping I-lands hired away two

more former Specialties employees, Karen Duckworth and appellant Laura Delzell. About one

month later. Helping Flands opened a new branch office with twelve patients. eleven of whom were

fbrmer Specialties clients.

B. Tria)

Specialties sued Helping Hands, Grice, Delzell, and Duckworth for breach of employment-

related agreements; breach of fiduciary duty; and intentional interference with employment

agreements, contracts, and future business relations with its clients. Specialties alleged the

appellants and Duckworth utilized Specialties’s confidential information and improperly solicited

its nurses and patients, causing the patients to transfer and causing damages of lost profits to

Specialties. Specialties also requested attorney’s fees.

The jury was charged on breach of employment-related agreements, breach of fiduciary duty,

intentional interference with agreements, conspiracy, damages, and attorney’s fees. The jury

returned findings favorable to Specialties on all these issues, with the exception of one breach of

contract issue favorable to Grice. The jury also did not find malice and did not award exemplary

damages.

The trial court rendered judgment for Specialties against Deizell, Grice, and Helping Hands

jointly and severally for $500,000 in lost profits.
2 The trial court denied appellants’ motion for new

trial and Specialties’s motion for new trial on the attorney’s fee issue.
3

Ducksvorth originally was a plaintiff below. and the jun charge submitted issues as to her. However, the judgment indicates Duckworth ‘has
been discharged in bankruptcy and has been non-suited as to any judgment in this ease.” She is not a party to this appeal.

Thejury answered the attorney’s fee question in Specialties’s favor, but the trial Court granted Helping Hands’s post-verdict motion to disregard
the jury’s answer.

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 C. Appeal

Appellants tiled separate briefs: Deizell liled one, and Helping Hands and Grice filed

another. They generally make the same arguments.

Appellants contend
4 the evidence is legally and factually insufficient to prove both that the

appellants improperly solicited Specialties’s patients and that the patients’ subsequent transfers

resulted from improper solicitations. As a result, they contend: (I) the jury’s answers to questions

establishing liability cannot stand; (2) there is no evidence of intentional, tortious interference;
5 (3)

the evidence is legally and factually insufficient to support the jury’s findings concerning the

existence-—and breach-—of a fiduciary duty between Deizell, Duckworth, and Grice on the one hand

and Specialties on the other:
6 (4) the trial court erred by admitting testimony from the parents of two

patients whose children did not transfer from Specialties to Helping Hands;
7 and (5) the evidence

is legally and factually insufficient to support the entire amount of damages found by the jury.
8 As

to the factual sufficiency of the damages, appellants make two arguments: (1) the evidence is

insufficient to prove appellants improperly solicited any of the patients who transferred and their

transfers would not have occurred but for such solicitations; and (2) the evidence negates the

recovery of any lost-profit damages accruing after the January 1, 2008 sale of the business.

1n DeIzell’s first issue and in Helping Flands and Grice’s first and second issues. in addition, in Delzell’s fifih issue and Helping Hands and
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Griec’s sixth issue they argue reversal of the judgment is required because a liability theory is “invalid.”

) ,

In Deizells third issue and in Helping Hands and Grice s fifth issue.

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1 n their fourth issues.

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In DeIzell s second issue and Helping Hands and Grice’s third issue.

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1 n Delzell’s sixth and seventh issues and Helping Hands and Grice’s seventh and eighth issues.

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 Specialties filed a cross-appeal. In two issues, it argues the trial court erred by glanting

JNOV on the attorney’s fees awarded by the jury and by denying its motion to sever and motion for

new trial on attorneys fies.

H. THE RECORD

The record includes the tbllowing evidence.

A. Specialties’s Personnel and Work

Grice testified he worked at Specialties as the chief operating officer. As part of his

employment, he signed a “Confidential and Proprietary Information Agreement” with Specialties’s

predecessor company° Grice also had a separate “Employment Termination and Stock Repurchase

Agreement” with Specialties that prohibited him from soliciting Specialties’s patients to transfer to

another agency and from using Specialties’s confidential information “in any fashion at any time.”

Janice Green was Specialties’s administrator and chief clinical officer. Green oversaw

Specialties’s day-to-day operations in all divisions and departments and the supervisors of the

individual programs. One of her responsibilities was the pediatric division; that division had two

groups: a pediatric therapy group consisting of about 120 clients, and a private-duty pediatric group

consisting of about thirty clients. The second group was “high acuity,” indicating the patients had

serious health conditions that might require twenty-four-hour care. The second group generated

“significantly greater” revenues than the first group.

Green testified Specialties’s patient lists included schedules, care plans, billing information,

and patient and employee contact information. These lists were proprietary and confidential; they

Gce’s Confidential and Proprietary Infonation Agreement was admitted as Exhibit 23. which is missing from the record on appeal. However,
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several such agreements with other Specialties’s personnel are in the record, including Deizell’s. which was admitted as Exhibit 4. The Confidential
and Proprietary Infonnation Agreements in the record are identical in the quoted provision below. There is no evidence or argument that Grice’s
agreement differed in the quoted provision.

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wci-e password—protected on Specialties’s computers. and employees signed confidentiality

agreements to protect that information from other companies. Green said obtaining a list of those

seriously ill patients and their nurses and divulging that information outside the company would

violate an employee’s confidentiality agreement.

Green testified the parents of pediatric patients relied on an agency to “he in their homes day

in and day out to provide services around the clock.” She said that these patients had a “particular

vulnerability” because staffing was “a huge issue”; the patients and parents became “very attached

to the nursing staff” placed in their homes; and parents “rel[iedj heavily on them” care for their

children.

Deizell worked at Specialties as a case manager who supervised nurses caring for the thirty

pediatric patients in the private-duty group. She oversaw the private-duty pediatric group under

Green’s supervision, Deizell periodically certified these patients’ qualifications for third-party funds

(i.e., insurance or other health plan benefits) that allowed them to receive in-home nursing care.

Grice said Delzell was “unique” because of “her relationship with her patients and the employees”;

Delzell worked hard for her patients, knew how to obtain certifications for the services they needed,

and “went way above and beyond the normal call of duty to take care of these patients.” Delzell also

was responsible for “quality control,” which included informing patients in her department of the

proper channels to make complaints, receiving any complaints from patients and writing them up

on a formal complaint procedure, and discussing the resolution of those complaints with Green.

Green testified she had no written complaints on file from the patients who transferred after

appellants left Specialties.

Duckworth also worked at Specialties, scheduling the nurses who provided the care.

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 Specialties’s personnel, including (irice, 1)eliell. and I )uckworth, signed agreements

acknowledging the client lists (including insurance and health information) constituted confidential

and proprietary information. They agreed to not use confidential and proprietary information that

had not been authorized and to not solicit Specialties’s patients on behalf of another agency. The

evidence included a “Confidential and Proprietary Information Agreement.’’ In that agreement,

Delzell aureed she

will hold in strictest confidence, and will at no time, either during discussions with
the Company during or after termination, use for himself/herself or others, or disclose
to others, directly or indirectly, any Confidential or Proprietary Information, except
as such disclosure or use is expressly authorized by the Company. You [i.e., Delzell]
agree that you will not solicit or direct any client to hire you independently for their
care or transfer their care with you to another agency.

B. Specialties’s Personnel Move to Helping Hands

Grice left Specialties in June 2005, and joined Helping Hands as chief operating officer. in

January 2006, Delzell told Green she planned to leave Specialties: she left on February 24, 2006.

Green testified Delzefl agreed not to contact Specialties’s employees or patients, and Delzell told

Green she was “more ethical than that.” DeIzell wrote a letter informing the staff of her decision to

leave and the date of her departure; she did not include the name of her new employer or any

information about her new job. There was conflicting testimony about whether Green saw the letter

before it was sent to the nurses. Green testified that upon leaving Specialties, DeIzell did not return

any patient or nursing call lists to Green.

Deizell and Duckworth joined Helping Hands where they were responsible for opening a new

Helping Hands branch office in Rockwall. On April 1, 2006, that office opened with twelve patients,

eleven of whom who had transferred from Specialties. All the Helping Hands patients who

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transferred from Specialties as of April I had been in the high-revenue group Delzell previously

supervised.

Green testified some other patients and employees left Specialties after Delzell did, but that

they “did not go to one specific agency and start working on the same thy.” Duckworth testified by

deposition that she spoke to Specialties’s employees after going to work at Helping Hands “to tell

them where we were.” But she said they contacted her, she did not contact them.

Green also testified concerning procedures between agencies when a patient transferred from

one agency to another. In each patient’s home, Specialties maintained a “home chart” where nurses

documented home health care. Regulations provided that an agency accepting a transferring patient

must send an “elective beneficiary transfer form” to the old agency indicating the new agency would

be taking over the patient’s care. The transfer notice allowed the old agency topl a discharge

summary of information in the patient’s home and pick up any information that belonged to

Specialties. Green testified Helping Hands never sent the forms for the eleven transferring patients

to Specialties. She also said discharge summaries were not prepared for these eleven patients

because they called Specialties the day of transfer and “said don’t come back.”

Green admitted on cross examination that she never contacted any transferring patients or

parents before Specialties filed suit on April 6, 2006. Green also agreed a patient could choose an

agency, and the patient’s admission agreement stated either party could terminate the agreement at

anytime. She said some nurses continued to work at Specialties after they began working at Helping

Hands. However flail-time employment status at Specialties precluded part-time employment at

another agency.

The record contains an “Agency to Agency Transfer” for each of the eleven former

Specialties patients, signed by the patients’ parents and stating they selected Helping Hands for

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skilled nursing effective April 1, 2006, ‘free of any undue pressure, solicitation, or coercion by any

employee of [Helping Hands]” and that they each “believc[d] that our family will be better served

by [Helping Hands].”

C. Testimony at Trial

The jury heard testimony from nurses, parents of children who were treated by Specialties,

Specialties’s employees, and Helping Hands’s employees.

1. Magers’s Testimony

Allison Magers was a Specialties nurse; her patient was one of the eleven patients who

transferred to Helping Hands. She testified Delzell told her she was leaving Specialties and wanted

Magers to work at Delzell’s new employer and pick up patients there. Magers did not recall if

Delzell used the name ofthe company. During another conversation, Deizell told Magers she could

apply on the website and Magers asked for the name ofthe site. Magers then applied. Magers had

a high regard for Delzell and “wanted to keep up with her” because ofprofessional rapport Magers

testified Delzell offered her more vacation days and better insurance to work at Helping Hands and

these benefits played a part in Magers’s decision to go to work there. Magers also testified she had

no personal knowledge ofDelzell “trying to persuade otherpeople” at Specialties to work at Helping

Hands. But she testified Delzell and Duckworth “were trying to get us to go and they did ask if we

could talk to our patients and let them know what our decision was going to be you know, but they

did not say tell them — they did not say tell to come to [Helping Hands].”

On cross examination, Magers agreed she learned Delzell was leaving Specialties when she

saw Delzell’s departure letter on Delzell’s desk. She agreed she initiated a conversation with Delzell

because she was unhappywith changes to Specialties’s paypolicy. Magers knew other Specialties’s

employees were also unhappy with the changes. Magers told Delzell she wanted to follow Delzell

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to her new employer. On redirect examination, however, Magers reiterated that during their

conversation Deizell invited her to Helping Hands. On recross examination, Magers testified that

although new hires at I lelping I lands waited ninety days br health benefits, employees who Tell

Specialties for Helping Hands could obtain medical insurance immediately. Grice contradicted

Magers’s testilnony regarding a “special deal on health insurance”; he testified insurance decisions

were made by the insurance carrier, not by Helping Hands.

Magers testified she worked at Helping Hands full-time because her Specialties patient, A.R.,

switched to Helping Hands “at that time as well”; Magers was very close to A.R. and “fairly close”

to A.R.’s mother, Angel J. But Magers also testified she told Angel she was working at Helping

Hands, and Angel wanted to go where Magers would be working, so Angel transferred A. R. to

Helping Hands. Magers was present with Angel when Deizell went to Angel’s house to complete

the admission paperwork transferring AR. from Specialties to Helping Hands. Angel signed an

“Agency to Agency Transfer” on March 31, 2006. Magers testified Deizell did not explain to her

or to Angel what “direct or indirect solicitation” meant.

Magers subsequently left Helping Hands and returned to Specialties; there was conflicting

evidence as to why. Magers testified she applied to return to Specialties because A.R. had been

hospitalized and Magers was not getting the hours she needed “to make [her] ends meet.”

Specialties had a full-time case, so Magers took it. Magers also testified DeIzeli told her she should

not return to Specialties because “they’re filing bankruptcy.”

At trial, Magers testified that after her deposition, she talked to Duckworth who said “you

did a good job, we think y’all did a good job on your deposition.” When asked what Magers thought

Duckworth meant, she replied: “Personally, I feel like, because she knew I had left certain details

out about her taking the list, things like that, she knew I didn’t tell about that at the [deposition].”

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 f’.’Iagers testilied that she later Magers signed an allidavit about the inlormation she omitted from her

deposition

Within a week or two of Magers’s aftidavit, DelzeH told her a patient had complained about

Magers’s “demeanor at the patient’s house and felt like Magers “was on drugs or alcohol while at

work.” Magers denied the charge. Magers testified the Helping I-lands employee handbook provided

that an employee must take a drug test within twenty-four hours upon request by Helping Hands, but

Deizell told Magers to take the test by 5:00 p.m. that day, within three hours of the conversation.

Magers could not take the test by 5:00 p.m. clue to previously scheduled personal appointments. At

5:00 p.m., Deizell told her she was terminated. Magers testified Deizell did not give her twenty-four

hours for the test because Magers (by her affidavit) “added to [her] deposition and mentioned things”

that DeIzell might “think would hurt her case.”°

DeIzell denied retaliating against Magers because of her affidavit concerning omissions in

her deposition.

At trial. Magers also testified that l)uckworth told Magers she “was going to use a list of

patients’ names that she got from [Specialties] and start calling some patients and get some patients

at [Helping Hands].” Duckworth and Deizell were working from Deizell’s home until they

established the new office.

2. Moodley’s Testimony

Sylvia Moodley, a Specialties nurse, testified at trial that after Duckworth left Specialties,

Duckworth called Moodley at the home of her patient, A.D. Duckworth called to talk to A.D.’s

Grice disputed Magerss testimony that she was entitled to a twenty-four-hour notice period for reasonable-cause drug testing at lielpino
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Hands. He said the twenty-four hour period for drug testing applied to applicants, who were required to take a drug test within twenty-four hours
of employment, and to random drug tests of employees, who were required to take a drug test within a twenty-four hour period.

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mother, but spoke to Moodley instead. Moodley testified about her conversation with Duckworth

as follows:

She told me that she was contacting all Home Health Specialties’ patients to give
them their name and the name ofthe company they are with and their phone number,
since they don’t have an office yet and they were working out of Laura Deizell’s
home, and she wanted them to have a phone number so they can contact them to
change agencies for their whocver the patient is.
—

Subsequently, Moodley testified that Duekworth “did tell me that she was contacting everybody, the

employees and their patients that were with Home Health Specialties” and that Duckworth was

“calling them to tell them the name of the new agency and if they were willing to go to the new

agency.”

A.D. did not transfer to Helping Hands and, although Moodley applied at Helping Hands,

she did not go to work there. There was conflicting testimony whether Moodley sought a pay rate

higher at Helping Hands because she told them she could “bring a patient with a lot of revenue.”

3. Ayala’s Testimony

Zandra Ayala, a Specialties nurse, testified she received calls from either Duckworth or

Delzell (she talked to both of them but did not remember who called her first) after they left

Specialtiea They told her if she wanted to work at Helping Hands with them, she should just let

them know. Ayala denied they “enticed” or “encouraged” her to transfer. Ayala did not go to work

at Helping Hands and there is no evidence Ayala’s patient left Specialties for Helping Hands.

4. MIchelle K’s Testimony

Michelle B., a parent ofone of Specialties’s patients, testified by deposition that Duckworth

called her from Delzell’s house to invite her to transfer to Helping Hands. Specifically, Duckworth

told Michelle B. that she was just calling to let [Michelle B.] know that they were opening and we

could come over there,.. . .“ Michelle B. also testified her Specialties nurse “told me that she was

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asked to ask me when we were coining over to the agency by Laura [Deizell j.” Michelle 13. did not

transfer her child to Helping Hands.

5. Lydia R.’s Testimony

Lydia R.. whose dauglter was a Specialties patient, testitied by deposition. She testified

Duckworth and Delzell told her they were leaving the company but they did not talk to her about

“letting [Helping Hands] or their agency provide care” for her child. But she said she thought they

talked to her daughter’s nurses because “they [that is, the nurses] would ask me if I wanted, if [was

leaving with them ....“ About six or seven months after Delzell left Specialties. Lydia R. asked

Delzell about transferring to Helping Hands.

On cross-examination, Lydia R. answered “no” when asked: “[N]either Karen Duckworth

nor Laura Deizell ever called you or contacted you and tried to persuade you to leave [Specialties]

and transfer your child’s care to the agency that they went to, did they?”

6. looper’s Testimony

Specialties’s CEO Kyle Kooper testified he was first notified that patients and nurses were

transferring about March 28, 2006. On March 22 or 23. 2006, DeIzell called him and told him she

heard Specialties’s patients and employees were not happy and wanted to transfer, and she wanted

to let Hooper know that. (Hooper said he was not aware of any complaints about child care filed

through Specialties’s complaint procedure.) Hooper reminded Deizell she could not solicit, and she

said she would not be that unethical. Early in the conversation, Delzell told Hooper that the parents

of four patients had called her that day; later, she said the number was three. She said they had her

home phone number. Delzell would not give Hooper their names. Hooper’s memorandum of this

conversation was admitted as an exhibit. Several days later, Hooper attempted to call Grice, but his

call was not returned.

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 I-looper agreed that, in his experience in the industry and at his own company, he had never

encountered a hiock of patients transferring “like this” absent “something like a going out of

business or a so! icitation “ 1-Ic said that, although he had no direct knowledge of any solicitation.

he said patients were solicited bccause certain patients “left on one day,” “[tjhey were our patients

on March 3 1st and over that two (lay period they were all gone and they were [Helping Hands’

patients].” and “all of the nurses that were involved left at one time with the patients.” Hooper said

a patient will “occasionally” transfer, for example, if there is a staffing difficulty, but transfer is

“infrequent” and “happens over time” not “eleven in one clay” to one agency. Also, these transfers

were unusual in that the attending nurses also left.

7. DeIzell’s Testimony

l)clzell testified she first considered leaving Specialties in October 2005. Delzell denied

initially contacting any patient or nurse and asking or encouraging them to come to Helping Hands.

During her testimony, Delzell was asked about her deposition. Specifically, she was asked about

deposition testimony in which she was asked what she thought she was agreeing to when she agreed

with Hooper and Green “not to solicit their patients.” She replied. “I was agreeing that I would not

call any of their patients and ask them to come with us to the new company.” When asked “[w]hat

about contacting the nurses who worked with those patients or cared for those patients and try to get

them to come to your company in the hopes that the patients would follow?” she replied, “1 did not

contact the nurses.”

Delzell said some nurses talked to her about prospective future employment, and she referred

a few of them to the Helping Hands wcbsite. Delzell testified that at a going-away dinner on

February 24, 2006, she responded to a request from Leela Thomas, the woman who replaced Delzell

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at Specialties. Ir information about Delzel l’s new employment. hut she denied encouraging Thomas

to leave Specialties.

She also said three or four parents called her about her departure. ACter she left Specialties.

other parents contacted her about problems they were having at Specialties and their desire to follow

Deizell. Deizell denied taking a patient list with her and never saw a list with Duckworth. Delzell

said she could not have printed such a list because her computer password was taken away when she

tendered her resignation.

Deizell said Grice and other Helping Hands personnel told her not to discuss any Helping

Hands details with Specialties nurses and patients and to let another Helping Hands branch handle

“intake.” She also testified that referrals contacted the central office, which reviewed the

information and then sent the prospective client to the billing office to verify insurance benefits. The

referral then reached her as a branch manager to determine staffing needs.

Referring to the eleven transfer patients, Deizell was asked whether she had “concerns” about

any of them. She said she had concerns about A.R. (Magers’s patient). When Deizell and

Duckworth interviewed A.R. ‘s mother, Angel, for Helping Hands, Delzell was concerned that

Magers, who was present, “was trying to encourage [Angel] to leave [Specialties].” Deizell told

Angel, “1 want you to know that this has got to be your decision not the nurse’s decision, and you

have the right to go anywhere you want to go.”

8. Grice’s Testimony about Deizell

Grice testified Deizell called him about working at Helping Hands. He denied contacting

Delzell and encouraging her to work at Helping Hands. He eventually hired her and told her she

would have to start the Rockwall office “from scratch.” Grice testified he told Deizell “not to do

anything to entice or encourage patients or nurses to leave [Specialties] and come to [Helping

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Handsj,” and “not to contact any patients or nurses period.’ He said she would have violated his

instructions if she made the initial contact. He agreed that because of Delzetl’s “relationship with

the patients and nurses at [Specialtiesj that they could besubeet to influence if she contacted

them[.1” He knew patients were transfirring during March 2006.

9. Green’s Conversation with Grice about Transfers

Green testified Grice called her at the end of March after Specialties sent out notices about

the suit. Green told Grice that Specialties had received no notifications of patients transferring

because Helping Hands failed to follow the procedure of providing Specialties with such

notifications (consisting of an elective transfer form signed by the patients), nor had Specialties

received any discharge notifications “due to transfer” from a physician. Grice told her “he wasn’t

aware of that.” He told Green that “he informed Laura [DeIzetli to keep everything on the up and

up.” suggesting to Green that l)elzell was responsible. Green talked to him about patients being

solicited and transferring to Helping Hands, and Grice “said that he wasn’t aware of any solicitation,

that the patients wanted to transfer or fbllow their nurses.” I-Ic said he understood “that’s what they

were doing was following the nurses.” Green was asked whether Grice said that “he knew about

what kind ofcontacts Laura [Deizell) had been making.” Green replied that the only statement Grice

made about contacts was that “he was going to look into or investigate whether or not contacts were

made prior to any of the employees completing on-line applications.”

Grice also told Green he removed Deizell from hiring new employees at Helping Hands, but

Green learned later from looking at records that Deizell continued hiring new employees. Grice also

told Green that Helping Hands was getting “plenty of referrals” and did not need Specialties’s

patients. However, Green noted the statement was not true based on the evidence showing Helping

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1-lands had twelve patients when it opened the office, eleven of whom had been Specialties’s

patients.

10, C rice’s Testimony about Transfers

After Once spoke to Green, as detailed above, he asked [)elzeIl if she “was doing anything

to persuade patients or nurses to transfer their services” from Specialties, and she “assured [himj she

was not.” I-Ic also asked the administrator of the pediatric program “if anything inappropriate [was]

happening,” and she told him he had nothing to worry about. He also hired trial counsel to

investigate whether anything improper occurred. He admitted he had not talked to Specialties’s

parents (specifically, Michelle B. and Lydia R.) and nurses (specifically, Magers and Moodley, as

well as nurses Zeke Stewart and Adelaida Castulo); but he disagreed that his investigation was “one-

sided.” Once said he told Green that he was going to stop taking applications from Specialties’s

nurses and patients until he could conduct an investigation.

Grice testified it would be a violation of his instructions not to contact patients and nurses

if Duckworth and Deizell made “first contacts.” He also agreed “[mjaking first contacts would be

something that would raise a suspicion of trying to influence a patient or an employee.” He testified

he was unaware of any first contacts by Helping Hands personnel. He also agreed eleven patients

transferring to a newly opened office in a thirty-day period was not “normal” and was “unusual and

different.” I-fe agreed that at the end of March 2006, he knew “something unusual was going on.”

Grice described the on-line application process at Helping Hands. If a patient or nurse

contacted Deizell, she was supposed to direct the applicant to Helping Hands’s central intake office

and the Human Resources department by way of the website. Once did not want Deizell involved

in the “upfront process,” to avoid her influencing anyone in the decision to transfer to Helping

—17—
 Hands. (irice also testi lied that “solicitation” would have been explained to DeIzell and [)uckworth

during the Helping Hands orientation.

(irice was asked about the “Agency to Agency Transfer” signed by parents or guardians of

all eleven transferring patients. He testified he had no indication any person signing the form was

being pressured to sign it and it was reasonable for Helping [lands to rely on those documents. He

also was asked about required documentation when a transfer occurred. He testified such

documentation was a “common practice in most agencies” when a patient transferred from one

agency to another, but it was not a “set regulation.” Grice testified he did not recall that Specialties,

as a receiving agency, submitted a document to “the losing agency” regarding a transfer and

requesting the patient’s records. Grice also denied an “en masse” transfer of patients took place on

one day; he said the first intake or referral occurred on March 10, and patients applied or transferred

between that (lay and March 3 I. Grice denied he “ratified or endorsed” a scheme to take

Specialties’s patients and nurses.

Ii. Additional Testimony Regarding Transferring Patients

Several mothers ofpatients who transferred from Specialties to Helping Hands testified about

why they transferred. Their testimony supported appellants’ arguments that appellants did not

contact Specialties’s patients and encourage them to transfer. The testimony included a mother

denying that anybody at Helping Hands ever contacted her about leaving Specialties and joining

Helping Hands and Delzell did not try to “influence” her “in any way in that decision”; a mother who

said Deizell’s care for her child was “[u]nlike anything I was ever used to” and she asked Deizell

what she needed to do to follow Delzell; mothers who were unhappy working with Thomas; mothers

who had Deizell’s telephone number and contacted Deizell after learning Delzell left Specialties;

and mothers who testified that Deizell did not pursue them—they pursued her.

—I 8—
 Likewise, some Specialties nurses testified and their testimony supported appellants’

arguments that appellants did not solicit them. One nurse testified she left Specialties after her

paycheck bounced and she was never approached by Deizell about applying to Helping Hands:

another nurse stated her patient’s mother was “desperate” to leave Specialties because oiproblems

with ‘Fhomas.

DelzelI also testified about transfers by several patients from Specialties to Helping Hands.

Deizell maintained in her testimony that she did not try to persuade or encourage mothers or nurses

to leave Specialties and the mothers and nurses pursued her about changing agencies.

III. SUFFICIENCY OF THE EVIDENCE

A. Standard of Review

We sustain a legal sufficiency or no-evidence challenge if the record shows: (1) the complete

absence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the

only evidence ottered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more

than a scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact. City of

Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). We view the evidence and inferences in the

light most favorable to the jury’s findings. See id. at 823. We must credit evidence that supports

the judgment if reasonablejurors could, and we must disregard contrary evidence unless reasonable

jurors could not. See id. at 827. When reviewing the factual sufficiency of evidence, we examine

all the evidence and set aside a finding only if the evidence supporting the jury finding is so weak

as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

When reviewing both the legal and factual sufficiency of the evidence, 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. City of Keller, 168 S.W.3d at 819; Hinkle v. Hinkle, 223 S.W.3d 773, 782

—19--
flex. App.—Dallas 2007, no pet.). We may not substitute ourjudgment 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 (rex. 1998).

B. Jury Findings

The jury found the following:

• Deizell failed to comply with her employment or confidentiality agreement with
Specialties.

• Duckworth failed to comply with her employment or confidentiality agreement with
Specialties.

• Grice entered into an employment agreement with Specialties, but did not fail to
comply with that agreement.

• Grice entered into a confidentiality agreement with Specialties and failed to comply
with that agreement.

• Once entered into an employment termination and stock repurchase agreement with
Specialties and failed to comply with that agreement.

• A relationship of trust and confidence existed between Specialties and Delzell,
Duckworth, and Once individually.

• Delzelt Duckworth, and Ofice each failed to comply with their fiduciary duties to
Specialties.

• Delzell, Duckworth, and Once each intentionally interfered with employment
agreements between Specialties and its employees or Specialties’s agreements to
provide medical services to its clients.

• Delzell, Duckworth, and Once were part of a conspiracy that damaged Specialties.

C. Discussion: Liability

As noted above, the appellants argue the evidence was insufficient to support the jury’s

finding of liability on any theory because there was “no evidence of culpability or causation.”

—20—
 Specifically, they argue there was no evidence ofimpermissible solicitation or the solicitation caused

the transfers, that is, the transfers would not have occurred but for the solicitation.

However the jury found the defendants—DeIzell, Duckworth, and Once—were part of a

conspiracy that damaged Specialties. The conspiracy question was premised on the july’s

affinnative findings that Deizell, Duckworth, or Once breached at least one agreement with

Specialties or tortiously interfered with Specialties’s agreements with its employees (i.e., the nurses)

or with Specialties’s agreements to provide medical services to its clients.”

Once a civil conspiracy is proved, each conspirator is responsible for all acts done by any of

the conspirators in furtherance of the conspiracy. Greenberg Traurig ofN.Y. P.C v. Mooa5’. 161

S.W.3d 56,90 (Thx. App.—Houston [14th Dist.] 2004, no pet.) (citing Akin v. Dahi. 661 S.W.2d

917,921 (rex. 1983)). A finding of civil conspiracy further imposes joint and several liability on

all conspirators for actual damages resulting from acts in furtherance ofthe conspiracy. Canoll v.

7’immen Chevrolet, Inc., 592 S.W.2d 922,925 (rex. 1979). “[C]ivil conspiracy ‘came to be used

to extend liability in tort. . . beyond the active wrongdoer to those who have merely planned,

assisted, or encouraged his acts.’” id. at 925—26 (citation omitted).

Nowhere in their briefs do the appellstnts challenge the conspiracy finding. Nor do they

challenge the sufficiencyofthe evidence supporting the affirmative answerto the conspiracy finding.

Therefore, because the finding of a conspiracy among appellants remains unchallenged by any

appellant, it is binding on the parties and this Court See Employen Car. Ca v. Henager, 852

S.W.2d 655,658 (rex. App.—DaIlas 1993, writ denied).

jury found that Delall. Duckworth. and Glee each breached at least one agreement with specialties and that they all toniouslyinterftred
with specialtiWs agreements with its employees and its agreements to provide medical auvicea to its clients.

—21—
 Once the jury found Deizell, Duckworth, and Grice were part of a conspiracy, the effect was

to make each ol them responsible for any unlawful act committed by either of the others in

furtherance of the conspiracy. See Greenberg Traurig of N.Y., P.C.. 161 S,W.3d at 90.

Consequently. if Deizell. Duckworth, or Grice is liable under any ot the contract or tort theories, all

are liable. See id. Further, the jury’s affirmative finding on conspiracy imposes joint and several

liability on the individual appellants as joint conspirators for actual damages resulting from their

unlawful acts in furtherance of the conspiracy. See Carroll, 592 S.W.2d at 925.

Because of the manner in which the jury was charged and appellants’ arguments on appeal,

our inquiry under appellants’ sufficiency ofthe evidence issues is whether the evidence is sufficient

to support the jury’s affirmative findings that any one of thern—Deizell, Duckworth, or Grice—was

liable for breach of contract or tortious interference.

1. Breach of Contract and of Duty not to interfere

The elements of a breach of contract cause of action are: (a) a valid contract; (b) the plaintiff

performed or tendered performance; (c) the defendant breached the contract; and (d) the plaintiff was

damaged as a result of that breach. Case Corp. v. Hi-Class Bus. Sys. ofAm., Inc., 184 S.W.3d 760,

769 (Tex. App.—Dallas 2005, pet. denied). In this case only the last two elements are in dispute.

To recover for a tortious interference with an existing contract, a plaintiff must prove: (1)

the existence of a contract subject to interference; (2) a willful and intentional act of interference;

(3) that the act was proximate’
2 cause of the plaintiff’s damages; and (4) actual damage or loss. See

Butnaru v. Ford Motor Co., 84 S.W.3d 198,207 (Tex. 2002) (citing Tex. BeefCattle Co. v. Green,

921 S.W.2d 203, 210 (Tex. 1996)). The second, third, and fourth elements are in dispute.

12
Proximate cause is that cause hich in a naniral and continuous sequence. unbroken by any new and independent cause, produces
the inju
and without which the injury would not have occurred. Phoenix RetIning Co. v. Tips. Xl S.W.2d 60. 61 (Tex. l935: Cook
Consultants, Inc. v.
Larson, 700 S.W.2d 231. 236 (Tex, App—Dallas 1985. writ rcf’d n.r.c.).

—22—
 Deizell’s confidentiality agreement with Specialties required her to hold “in strictest

confidence” and never -—--during or after terniination—---use for herselfor others or directly or indirectly

disclose Specialties’s confidential or proprietary information. It also prohibited her from soliciting

clients to transfer their care to another agency.

Likewise, in the Employment Termination and Stock Repurchase Agreement. (irice agreed

he was prohibited from soliciting Specialties’s patients to transfer to another agency and from using

Specialties’s confidential information “in any fashion at any time.” The charge did not define “use
of confidential information.” We give terms their plain, ordinary, and generally accepted meaning

unless the instrument shows the parties used them in a technical or different sense. See Heritage

Res., Inc. i NationsBank, 939 S.W.2d Il 8, 121 (Te. 1996). “Use” means “[tjo make use of, to

convert to one’s service, to avail one’s self of, to employ.” BLACK’s LAW DICTIONARY 1381 (5th

ed. 1979). We conclude the prohibition against using confidential information ‘in any fashion”

includes both the direct and indirect use of that information. Thus, the plain meaning of Grice’s

prohibition against “use of” Specialties’s confidential information “in any fashion at any time”

includes availing himself and his employer of DeIzell’s or Duckworth’s use of Specialties’s

confidential infbrmation. Additionally, the jury’s finding as to conspiracy made Grice liable for

DeIzell ‘s or Duckworth ‘s breaches of their employment agreements or their intentional interference

with existing contracts.

There was evidence Specialties’s patient lists included schedules, care plans, billing

information, and patient and employee contact information, were proprietary and confidential, and

were password-protected on Specialties’s computers. Green testified that obtaining a list of patients

and their nurses and divulging that information outside the company would violate an employee’s

confidentiality agreement. Delzell acknowledged the patient lists were confidential. Additionally,

—23--
Specialties had cxisting contracts—as documented by the plans ofcare—to provide medical services

to the transferring patients and that solicitation by DeIzell, Duckworth, or Grice was prohibited both

by their employment agreements with Specialties and, as pertinent to the tort claim, by state

regulations?

The jury charge included the following definition of “solicitation”:

Solicitation means a provider agency entices or lures an individual to receive services
when it knows that the individual is the client of another provider agency. “Entice”
means “to attract artfully or adroitly or by arousing hope or desire.” “Lure” means
“an inducement to pleasure or gain.”

Accordingly, use of confidential information to solicit patients—either directly or indirectly by

soliciting their Specialties’s nurses—to transfer to Helping Hands constituted both a breach of the

no-solicitation and no-use-of-confidential-information promises and an act of interference in

Specialties’s agreements with its employees and its provision of medical services agreements with

its clients.

With respect to the claims against Delzell, there was evidence from both Magers and

Moodley that, after Duckworth and DeIzell left Specialties, they were working together to contact

Specialties’s nurses and parents ofSpecialties’s patients to solicit them to transfer to Helping Hands.

Specifically, Magers said that, on Duckworth’s last day at Specialties, she told Magers she “was

going to use a list ofpatients’ names that she got from [Specialties] and start calling some patients

and get some patients at [Helping Hands].” And Moodley testified Duckworth told her that “she was

contacting all Home Health Specialties’ patients to give them their name and the name of the

company they are with and their phone number, since they don’t have an office yet and they were

For exampla the Texas Administrative Code section 49.19 eegnlaec advertising and solicitation ofclients. It provides a provider agency
t3
may advertise krclients as long as the provider agency does not... solicit clients frcniotherpn,videa” flx. AEWN. Coca p49.19 crex. Dep’t
of Aging & Disability Serve.).

—24—
working out of Laura I)eIzell’s home, and she wanted them to have a phone number so they can

contact them to change agencies for their — whoever the patient is,” There was evidence Delzell

indirectly solicited parents Michelle B. and Lydia R. through their nurses.

Thus, there is some evidence that the’ solicited the transferring patients and a reasonablejury

could have concluded from this evidence and reasonable inferences from it that Deizell and

Duckworth, working together, improperly solicited—directly and indirectly——Specialties’s patients

to transfer to Helping 1-lands,
t4

Although the jury also heard evidence indicating DeIzell and Duckworth did not solicit

Specialties’s nurses and patients’ parents to transfer, the credibility of that evidence was a matter for

the jury to resolve. See City of Keller, 168 S.W.3d at 819. We conclude the evidence is legally

sufficient to support the jury’s finding that I)elzell and Duckworth failed to comply with their

employment or confidentiality agreement with Specialties and intentionally interfered with

Specialties’s provision-of-medical-services agreements with its clients
15 See City of Keller, 168

S.W.3d at 810. 823. 827; Hinkle, 223 S.W.3d at 777-78; see aLso Butnarn. 84 S.W,3d at 207 (setting

out elements of intentional interference with existing contract claim); Case C’oip., 184 S.W.3d at 769

(setting out elements of breach of contract claim). Further, considering all the evidence, including

that detailed above, we conclude the evidence supporting these findings is not so weak as to be

clearly wrong and manifestly unjust. See id. at 26; Cain, 709 S.W.2d at 176.

14
During the trial, Specialties presented extensive testimony about telephone calls and voluminous exhibits containing telephone records. In
its brief, Specialties argues these telephonerecords “show that the transferring employees were contacted multiple times after Delzel[i I and Duckworth
left” Specialties. lii their briefs, appellants argue the phone record evidence “is surmise. It is as consistent with innocuous contacts as with anything
culpable And it impcrmissibiy stacks inferences. thus violating all three principles for adjudging the evidentiarv value of weak circumstantial
evidence.” We spent a substantial amount of time reviewing the telephone records, the testimony associated with those records, and the parties’
arguments relating to the telephone records. However, based on the findings discussed in this opinion, we need not address whether the phone records
show appellants- rc liable for soliciting Specialties’ patients and nurses.

Ju questions I and 6.

—25--
 Because the evidence is legally and factually sufficient to support the jury’s findings that

Delzell breached employment agreements and intentionally interfered with existing employee and

client agreements, we resolve Deizell’s first and third issues against her to this extent.

With respect to the claims against Grice, there is evidence Green told Grice that Deizell and

Duckworth were “contacting” Specialties’s patients and that a number of Specialties’s patients had

transfirrcd to Helping Hands. lie agreed such transfers were “unusual.” There is evidence Grice

warned Delzell “not to contact any patients or nurses period” but the only actions he took were to

ask Delzell and her supervisor about their solicitation of Specialties’s patients or nurses (which they

denied) and to hire an attorney to investigate. There was some evidence Grice did not ask any of the

parents of transferring patients whether they had been solicited and, if so, whether they transferred

as a result of such solicitation. There was also some evidence Grice did not question any of the

transferring nurses. DeIzell and Duckworth had one month between leaving Specialties and opening

the new Helping Hands office in which to find patients. Grice told Green that Helping Hands was

getting “plenty of referrals” and did not need Specialties’s patients, but the evidence does not support

that assertion. There was no evidence Grice refused to allow transferring patients to receive care

from Helping Hands until he had investigated.

The only argument Grice makes relates to the sufficiency of any evidence of transfers

resulting from solicitation by him. However, based on this evidence and reasonable inferences, a

reasonable jury could have concluded Grice made “use of confidential information” by availing

himself of Deizell’s and Duckworth’s improper solicitation of Specialties’s patients.
16 Thus, we

Our review of the record shows there is no evidence Grice contacted patients or nurses to entice or lure them to transfer from Specialties to
t6
Helping Hands Therefore, we conclude there is no evidence Grice himself used Specialties’s confidential information to solicit its patients. In
addition, there is no evidence the information about Delzell’s employment at Specialties and her skill at certifying needed set-s ices was confidentiaL
Thus, even assuming Grice solicited Delzell to join Helping Hands, that act would not constitute use of confidential information about Delzell or her
job responsibilities at Specialties.

—26—
conclude the evidence is legally sufficient to support the jury’s findint that (iricc litiled to comply

with his confidentiality agreement with Specialties and intentionally interfered with Specialties’s

provision-of-medical-services agreements with its clientsJ See (‘itr o/ Keller, I 6 S.W.3d at 810,

823, 827; I-link/c. 223 S.W.3d at 777-78; see also Butnaru, 84 S.W.3d at 207 (setting out elements

of intentional interference with existing contract claim); C’ase corp., 184 S.W.3d at 769 (setting out

elements of breach of contract claim). Further, cons idering all the evidence, including that detailed

above, we conclude the evidence supporting these findings is not so weak as to be clearly wrong and

manifestly unust. See C7tv of Keller, 168 S.W.3d at 826; cain, 709 S.W.2d at 176.

Because we conclude the evidence is legally and factually sufficient to support the jury’s

findings that Once breached his confidentiality agreement and intentionally interfered with existing

employee and client agreements, we resolve Helping I-lands and Once’s first, second, and fifth issues

against them to this extent.

2. Causation

Grice agreed that because of Deizell’s relationship with the patients and nurses at Specialties,

they could be subject to influence if she contacted them. In the context of the alleged damages,

contacting a nurse to persuade that nurse’s patient to transfer constituted indirect solicitation of the

patient. Moreover, there was evidence that a nurse’s decision to transfer from one agency to another

would influence his or her patient’s parent to transfer as well. Thus, there was some evidence that

the eleven patients would not have transferred but for direct or indirect solicitation by Delzell or

Duckworth and that the solicitation proximately caused damage to Helping Hands.

17
Jury questions 3 and 6.

Moreover, the jury’s finding as to conspiracy made Grice liable for damages resulting from Delzell ‘s or Duckworth ‘s breach ofher employment
t8
agreement or intentional interference with existing contracts.

—27—
 Again, there also was conflicting evidence indicating patients did not transfer to Helping

Hands because of improper solicitation. However, the jury heard the evidence and resolved any

conflicts in Specialties’s favor. See Maritime Overseas Corp., 971 S.W.2d at 407; Hinkle, 223

SW.3d at 782.

Based on the evidence (and reasonable inferences), a reasonable jury could have concluded

that DeIzell’s and Duckworth’s improper solicitation of Specialties’s patients resulted in their

transfers to Helping Hands, causing damage to Specialties. As a result, we conclude the evidence

is legally sufficient to support the jury’s answers finding that DeIzell’s and Duckworth’s acts—and,

through its conspiracy tinding, Grice’s responsibility for those acts —proximately caused damages

to Specialties. See City o/KelIer, 168 S.W.3d at 810, 823, 827; rain, 709 S.W.2d at 176. We

reach this conclusion considering both the proximate cause standard, pursuant to which these

transfers resulting in Specialties’s loss of revenue would not have occurred but for the improper

solicitation. see Phoenix Refining C’o., 8 1 S.W.2d at 61; C’ook Consultants, Inc.. 700 S.W.2d at 236,

and the breach of contract causation standard, pursuant to which this loss was “the natural, probable,

and foreseeable consequence” ofDe[zell ‘s, Duckworth’s, and—-through the unchallenged conspiracy

finding—Grice ‘s improper solicitation, see Mead v. Johnson Group, Inc.,615 S.W.2d 685, 687 (Tex.

1981).

We resolve Deizell’s first and third issues against her and Helping Hands and Grice’s first,

second, and fifth issues against them to this extent.

Jury questions 7 and 8.

—28--
 3. Joint and Several Liability

As noted above, the effect of the unchallenged conspiracy finding is to make Deizell and

Grice responsible for any unlawful act committed by Delzell, Duckworth, or Grice. See Greenberg

Traurig of!’!. Y, P. C, 161 S.W.3d at 90. Consequently, DeIzell and Grice are jointly and severally

liable under both the breach of contract and tortious interference with existing contracts theories for

Specialties’s damages. See id.; Garroll, 592 S.W.2d at 925,

4. Breach of Fiduciary Duty Causes of Action

In her fourth issue, Deizell challenges the sufficiency of the evidence supporting the jury’s

affirmative answer to the question establishing her direct liability for breach of fiduciary duty.

However, any error in the judgment as a result of the jury’s finding on this tort claim would not

result in reversal because the liability under all the theories arose from solicitation and transfer of

the eleven patients discussed above. See TEx. R. App. p. 47.1. Thus, we need not address Delzell’s

fourth issue. We also resolve Deizell’s fifth issue against her, in which she argues the invalidity of

any theory of liability justifies reversal of the judgment against her. See id.

We need not address Grice’s fourth issue (challenging the sufficiency of the evidence of the

jury’s finding of breach fiduciary duty); and his sixth issue (the entire judgment should be reversed

because all liability theories fail) because these issues duplicate Delzell’s issues, which we resolved

above. See id.

5. Helping Hands’s Liability

Now we address Grice and Helping Hands’s first and second issues—in which they argue

there is legally and factually insufficient evidence of any improper solicitation or transfer as a result

of such solicitation—as those issues relate to Helping Hands’s liability. Thejury was asked whether
it found by clear and convincing evidence (which was defined) that the harm to Specialties resulted

from intentional interference with contracts attributable to Helping Hands, The charge then stated:

You are further instructed that [Helping Hands) may be liable because of an act by
Laura Delzel[l] or Johnny James Grice if, but only if—-

a. [Helping Hands] authorized the doing and the manner or the act, or

b. Laura DelzeI[l] or Johnny James Grice was unfit and [Helping Hands] was
reckless in employing them, or

c. Laura Delzel[l] or Johnny James Grice was employed as a vice-principal and was
acting in the scope of employment, or

d. [Helping Hands] or a vice-principal of [Helping Hands] ratified or approved the
act.

The court submitted a supplemental charge defining “ratification”
° and “vice-principal.”
2 ’
2

Accordingly, Helping Hands is liable if it intentionally interfered with Specialties’s employment or

client agreements thereby causing harm to Specialties or if any one of the three individuals is liable

for intentional interference with those contracts.

Helping Hands’s argument relating to the claim for intentional interference is that “this

allegation [i.e., by hiring Specialties’s at-will nurses, appellants interfered with Specialties’s at-will

contracts with its patients] has no legal force absent a prior showing of an illegal solicitation.

Absent that, there should be no liability.. ,

However, we previously concluded the evidence was

party’s conduct includes conduct of others that the party has ratified. Ratification may be express or implied. Implied ratification occurs
if a party, though he may havebeen unaware of unauthorized conduct taken on his behalf at the time it occurred, retains the benefits ofthe transaction
involving the unauthorized conduct after he acquired full knowledge of the unauthorized conduct. Implied ratification results in the ratification of
the entire transaction.”

2t term ‘vice-principal’ means:
”The
(a) A corporate officer
(b) A person who has authority to employ, direct, and discharge an employee of the company.
(c) A person engaged in the performance of a nondelegable or absolute duties [sic] of the company.
(d) A person to whom the company has confided the management of the whole or a department or division of the business of the company.”

22 . V . . V .

Delzell makes the same argument to her brief: “Here, Plaintiff alleges that by hiring their nurses, the defendants somehow interfered in
Plaintiff’s at-will contracts with its patients. But this allegation has no legal force absent a prior showing of an illegal solicitation. Unless the
defendants’ conduct is otherwise illegal, there should be no liability

—j —
 sutcient for thejury to conclude DeIzell improperly solicited patients, Grice failed to comply with

employment-related contracts, and Grice breached his Employment Termination and Stock

Repurchase Agreement through Duckworth’s use of confidential intbrmation. Helping Hands directs

no argument to such use of confidential information. Nor does it challenge the sufficiency of the

evidence supporting the affirmative answer to the jury question finding liability against Helping

I-lands br intentional interference. Helping Hands makes no argument about any of the sub-parts

of the jury question, including ratification and vice-principal. Because Helping Hands does not

challenge the jury’s intentional interference finding, it is binding on the parties and this Court. See

E,npiovei’s (‘as. (‘a,. 852 S.W.2d at 658. We resolve F-lclping I-lands’s first and second issues against

23
it.

I). flainages

The jury was asked as follows (with the answers in italics):
24

What sum of money, if any, if paid now in cash, would fairly and reasonably
compensate [Specialties] for its damages, if any, that resulted from such action or
actions?

Consider... [only] Lost profits that were a natural, probable, and foreseeable
consequence of [appellees’] action or actions.

Do not add any amount for interest on damages, if any.
Answer separately in dollars and cents for damages, if any:

a. Lost profits sustained in the past up to January 1, 2008.
Answer: $225,000.00

b. Lost profits sustained from January 1, 2008 to today.

We need not address Flelping Hands’s sixth
3 issue, having addressed this issue as it relates to Grice, and Helping Hands offers no additional
argument.

Jury question 8. This damages question was premised on the jury’s findings that DeIzell or Duckwoh failed to comply with employment
24
or confidentiality agreements with Specialties (Question It. Grice’s failure to comply with employment-related agreements (Question 3). appellants’
failure to comply with their fiduciary duties to Specialties (Question 5). appellants’ intentional interference with Specialties’s employees’ or clients’
agreements (Question 6). and a finding that such actions, if any, were a proximate cause of damage to Specialties.

—31—
 Answer: $35,000.00

c. Lost profits that, in reasonable probability, will be sustained in the
future.
Answer: $240,000.00

In Delzell’s sixth issue and Helping Hands and Once’s seventh issue, they argue there is no

basis for awarding lost profits accruing after the January 1, 2008 sale of Specialties. In Deizell’s

seventh issue and Helping Hands and Once’s eighth issue, they argue there is no evidence, or in the

alternative, factually insufficient evidence supporting the jury’s damages award.

1. The Record

Hooper testified the eleven transferring patients represented about $75,000 to $80,000 a

month, or about $1 million dollars a year, in lost income to Specialties. Exhibit 40, which was

admitted to show “past and future damages,” listed the eleven former Specialties patients who

transferred to Helping Hands and calculated lost-profit damages for each one, based on months of

service and average monthly profit.
25 This evidence is undisputed. For each patient, Exhibit 40 also

shows the “average monthly profit” as well as the “prior” and “future” damages, beginning on April

1, 2006, based on the number of “months on service.”

2. Discussion

a. Lost Profits Accruing up to the January 1, 2008 Sale

Appellants’ only argument concerning pre-sale damages is to “the entire amount” and “the

sum” of damages on grounds that Specialties failed to prove all eleven transferring patients were

solicited and that the transfers would not have occurred but for such solicitation. We have addressed

those arguments under our analysis of appellants’ liability. Accordingly, we conclude the evidence

For each patient, Exhibit 40 shows, among other information, the “date of death or discharge” as either NA or a specific date. Additionally,
there was testimony that, before Specialties was sold, two patients died and another was released; thus, the dates for each of those events limited the
damages calculated for them,

—32—
established the jury’s award of $225,000 of lost-profits accruing up to the January 1, 2008 sale?’

See Cliv o/Kelkr. 168 S.W.3d at 810. We resolve DeIzell’s seventh issue and Helping Hands and

Once’s eighth issue against them.

b. Lost Profits Accruing after the January 1, 2008 Sale

Appellants also attack the award of lost-profits damages after the January 1, 2008 sale of

Specialties. They raised this argument in their motions for JNOV and for new trial. Relying on

Point Productions A. G. v. Sony Alusic Entertainment, Inc., 215 F. Supp. 2d 336, 341 (S.D.N.Y.

2002), they argue Specialties cannot recover damages ofany amount that was not lost as a result of

appellants’ conduct. They rely on undisputed evidence that Specialties was sold effective January

1,2008, and there was no evidence Specialties maintained any residual right to continue receiving

the post-sale receipts ofprofits ofthe business after it was sold. Thus, there is no evidence that, but

for appellants’ conduct, Specialties would have accrued anyprofits from the home nursing business

after January 1,2008. Appellants’ challenge is to the jury’s finding of lost profits after January 1,

2008, that is, whether the amounts awarded for lost profits sustained after January 1,2008 were

proximately caused by solicitation and transfer.
27

When a breach of a contract causes clnnmges to an established business in the form of loss

of profits, which would have been derived therefrom absent such breach of contract, the owner of

such business may recover damages from the party causing such loss, measured by the amount of

such loss of profits. City ofLa Grange v. Pieralt, 175 S.W.2d 243, 246 (Tex. 1943). In Point

Productions A.G., the court held that evidence of post-bankruptcy lost profits was inadmissible

26
jury quatiot 8(a).

27
Jinyquasfiona 8(b) and 8(4

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because there was no evidence the breach was a cause in fact of the bankruptcy, that is, but for the

breach, the bankrupt company would have been solvent, Point Productions A.G., 215 F. Supp. 2d

at 341 That principle applies here because Specialties would not have realized any profits after the

business was sold. Specialties’s bankruptcy attorney testified the sale of the company was not in the

original 2006 bankruptcy plan. In other words, the loss of profits to Specialties after January 1,

2008, was due to the sale of the business, not the loss of income from the transferring patients as of

April 1, 2006.

Specialties argues it reserved this lawsuit when the business was sold and cites cases

involving reservations of rights after an assignment. See, e.g., Oxy USA, Inc. v. Sw. Energy Prod.

Co., 161 S.W.3d 277, 289 (Tex. App.—Corpus Christi 2005, no pet.) (deciding scope of

assignment). But appellants’ issues here are about causation and recovery of damages, not the scope

of any assignment and reservation. We conclude Specialties’s authorities are not on point to the

issue raised by appellants. We resolve Delzell’s sixth issue and Helping Hands and Grice’s seventh

issue in their favor.

IV. ADMISSIBILiTY OF EVIDENCE

In Delzell’ s second issue and Helping Hands and Grice ‘s third issue, they argue the trial court

erred by admitting the testimony of two mothers who did not transfer their children’s care to Helping

Hands. Appellants argue this evidence is not admissible under rule of evidence 404(b), which

provides that evidence of “other acts” is “not admissible to prove the character of a person in order

to show action in conformity therewith.” See TEx. R. EvID. 404(b). The record shows the trial court

granted appellants’ motion in limine seeking to exclude any testimony including alleged solicitation

of a nurse, parent, or guardian whose patient or child did not transfer to Helping Hands on grounds

it was “unduly prejudicial and not probative of an element” of a cause of action regarding the

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transferring patients. However, a ruling on a motion in limine preserves nothing for review. See Sw,

Country Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 491, 495 (Tex, App7—Fort Worth 1999,

no pet.). When the mothers’ testimony by deposition was offered, appellants objected on relevance

grounds, not on rule 404(b) grounds. By failing to present this specific ground timely to the trial

court, appellants failed to preserve this complaint on appeal. See id. (citing TEX. R. App. P. 33.1(a),

TEx. R. EvID. 103(a)(l)). We resolve Delzell’s second issue against her and Helping Hands and

Grice’s third issue against them.

V. ATTORNEY’S FEES

The jury found $147,000 was a reasonable fee for Specialties’s trial attorney’s necessary

28 Appellants moved for JNOV, objecting to an award of attorney’s fees on four grounds,
services,

including Specialties failed to plead or prove presentment. Specialties filed a response. The trial

court granted appellants’ JNOV on this issue.

In a “Motion to Sever and Motion for New Trial,” Specialties argued the award was

supported by sufficient evidence of reasonableness, and argued certain documents were evidence of

presentment. Appellants responded to this motion. By written order, the trial court denied

Specialties’s motion.

In two issues on cross appeal, Specialties contends the trial court erred by granting JNOV on

the attorney’s fees awarded by the jury and by denying Specialties’s “Motion to Sever and Motion

for New Trial” concerning the attorney’s fee issue.

28
Jury question U.

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A. Standard of Review and Applicable Law

A JNOV is proper when a directed verdict would have been proper. TEx. R. Civ. P. 301;

Fort Bend Cty. Drainage Dist, v. Sbrusch, 818 S.W,2d 392, 394 (Tex. 1991). We review a trial

court’s decision to grant or deny a motion for a directed verdict and a motion for JNOV under the

legal sufficiency standard ofreview. City ofKeller, 168 S.W.3d at 823. A trial court properly denies

a motion for a directed verdict and a motion for JNOV if, looking at all the evidence in the light most

favorable to the fact challenged or the finding found by the jury, a reasonable trier of fact could have

formed a firm belief or conviction that the fact or finding was true. Id. at 822-23.

We review a trial court’s ruling on a motion for new trial for an abuse of discretion.

Doigencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per curium). We will not

overrule the trial court’s decision unless it acted unreasonably or in an arbitrary manner, without

reference to guiding rules or principles. Landerman v. State Bar of Tex., 247 S.W.3d 426,433 (Tex.

App.—Dallas 2008, pet. denied).

Recovery for attorney’s fees may be predicated on a claim founded on a written contract.

TEx. Civ. PRAC. & REM. CODE ANN. § 38.001(8) (West 2008). The civil practice and remedies code
provides a procedure for recovery of attorney’s fees, including that “the claimant must present the

claim to the opposing party or to a duly authorized agent of the opposing party; . . . .“ Id. §
3 8.002(2). The purpose of the presentment requirement is to allow the person against whom a claim

is asserted an opportunity to pay within thirty days ofreceiving notice ofthe claim, without incurring

an obligation for attorney’s fees. Carr v. Austin Forty, 744 S.W.2d 267, 271 (Tex. App.—Austin

1987, writ denied); see Caldwell & Hurst v. Myers, 714 S.W.2d 63, 65 (Tex. App.—Houston [14th

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Dist. j I 986. w’rit reid n.r.c.) (“Proper presentment is the assertion of a claim and a request for

payment made 30 days before initiation of a suit.”). In order to recover attorney’s fies in a sut

founded on a written contract under section 3 8.002, a plaintiff must plead and prove that presentment

of a contract claim was made to the opposing party and he failed to tender performance. Can, 744

S.W.2d at 27 1 (citing Ellis v. 14aldrop, 656 S.W.2d 902. 905 (Tex. I 985)). The contract, itself, need

not provide for attorney’s fees. Id.

No particular form of presentment of a claim is required. Id. (citing King Optical ‘i’.

Automattc Data Processing o/DaIlas, Inc., 542 S.W.2d 213, 217 (Tex. Civ. App.—Waco 1976, writ

ref d n.r.c.)). However, neither the filing of a suit, nor the allegation of a demand in the pleadings

can, alone, constitute a presentment of a claim or a demand that the claim be paid, within the

meaning of section 38.002. Id. (citing W Cas. & Stir. Co. v. Preis, 695 S.W.2d 579, 589 (Tex.

App.—Waco 1985, writ refd n.r.c.)).

B. Discussion

In its “First Amended Original Petition and Application for Injunctive Relief,” Specialties

contended it had agreed to pay its attorney a reasonable fee and was entitled under section 38.001

of the civil practice and remedies code to recover such reasonable attorney’s fees from appellants.

However, Specialties did not plead that all conditions precedent had been met. Nor did it plead that

the claim had been presented to appellants and that they had failed to pay it. See id.

In response to the motion for JNOV and on appeal, Specialties relies on the following

argument: “All Defendants received written notice of the claim before suit was filed. Settlement

offers were exchanged at mediation. The Court can take judicial notice of the mediation because it
was ordered 1w the (ourL” No “written notice of the claim” and no such pre—suit settlement otters

or other mediation evidence were referred to in the “Motion to Sever and Motion for New Trial” or

attached to it, and no record reference is provided. Specialties cites no authority to support its

argument that settlement offers at mediation met the presentment requirement. Our research has

produced a case, Be/eu’ i’. Rector. 202 S. \V.3d 84’), 857 (Tex. App.—-Eastland 2006, no pet.), in

which the court rejected as insufficient to establish presentment evidence that the defendant’s

counsel attempted to contact the plaintiff “to discuss the dispute” and they “had some settlement

discussions.” The court held such evidence did not prove that “prior to trial [the defendant] had the

opportunity, by undertaking specific action, to avoid paying attorney’s fees.” Id. Following the

analysis in Belew, we reject Specialties’s argument here that these facts, without more, meet the

presentment requirement.

In its “Motion to Sever and Motion for New Trial,” Specialties requested the trial court sever

the attorney’s fees issue and grant a new trial because its right to recover was a question of law for

the trial court, based on the trial court’s “apparently” setting aside the attorney’s fees findings due

to lack of evidence of presentment. In that motion, Specialties relied on the “Agreed Order for

Temporary Injunction” and the “Agreed Extension of Temporary Restraining Order” as evidence of

presentment. The Agreed Order refers, in part, to appellants’ failure to acknowledge or admit the

truth of the allegations in the Original Petition and to the necessity for discovery, but neither

document says anything about the proof of the amount owing. Neither document contains a specific

demand from Specialties for payment. C’f Carr, 744 S.W.2d at 271. (termination letter delivered

to trustee of partnership stated, “I am terminating the contract and ask that you release the $50,000

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letter of credit to me[1” held evidence of presentment of claim). We cannot agree that filing these

documents meets the purpose of the presentment requirement, which is to allow the person against

whom a claim is asserted an opportunity to pay within thirty days of receiving notice of the claim,

without incurring an obligation for attorney’s fees See id.

Specialties argues the trial court should have reopened the case if there were a deficiency in

evidence to support attorney’s fees and it should have severed that issue and granted a new trial.

However, neither of these options applies here because the evidence is insufficient to show

Specialties met the procedural requirements for the award. Specialties’s authorities do not persuade

us otherwise. See L)octor ‘s Hosp. 1997, L.P. v. Sunthucci Houston. L.P., 154 S.W.3d 634, 639 (Tex.

App.—Flouston [14th Dist.] 2005, no pet.) (trial court should not have reopened evidence to permit

testimony on attorney’s fees because appellant not entitled to attorney’s fees on promissory estoppel

claim); U/il v, U/il, 524 S.W.2d 534, 538 (Tex. App.—Fort Worth 1975, no writ) (trial court should

have considered attorney’s fees as necessaries as part of support money recovery per statute).

Having rejected Specialties’s arguments that the trial court improperly granted JNOV on the

issue of attorney’s fees and improperly denied the post-verdict motions on this issue on grounds of

lack of presentment, we resolve Specialties’s issues on cross-appeal against it.

VI. CONCLUSiON

Because of our resolution of appellants’ issues, we reverse the trial court’s final judgment

in part and render judgment that Specialties is entitled to recover $225,000 against Helping Hands,

Delzell, and Grice, jointly and severally, and pre-judgment interest on that amount. In all other

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respects, the trial courts final judgment is affirmed.
/7/

SEY/
JU$hCE

081657F.P05

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 Iiitrt uf Apiiats
!FiftI! Diitrirt nf Jxas at Ja1tas

JUDGMENT
HELPING HANDS HOME HEALTH Appeal from the 160th Judicial District
CARE, INC D/B/A AT HOME Court of Dallas County, Texas. (Tr.Ct.No.
HEALTHCARE LAURA DELZELL, AND Cause No. 06-03351-H).
JOHNNY JAMES GRICE, Opinion delivered by Justice Moseley,
Appellants/Cross Appellees Justices Richter and Myers participating.

No. 05-08-01657-CV V.

HOME HEALTH OF TARRANT
COUNTY, INC. D/B/A HOME HEALTH
SPECIALTIES, Appellee/Cross Appellant

In accordance with this Court’s opinion of this date, the final judgment of the trial court is
REVERSEL in part and judgment is RENDERED that Home Health of Tarrant County, Inc. D/B/A
Home Health Specialties is entitled to recover $225,000.00 against Helping Hands Home Care, Inc.
D/B/A At Home Healthcare; Laura Delzell; and Johnny James Grice jointly and severally, and pre
judgment interest on that amount. In all other respects, the final judgment is AFFIRMED.

It is ORDERED that appellants/cross appellees Helping Hands Home Care, Inc. D/B/A At
Home Healthcare; Laura Delzell; and Johnny James Grice recover their costs of this appeal from
appelee/cross appellant Home Health of Tarrant County, Inc. D/B/A Home Health Specialties.

Judgment entered November 21, 2012.

I,
/
if
JIM MOSELEY
iUSTICE