Linda Fitzerman v. Classic Americana, LLC

REMITTITUR SUGGESTED, MODIFY and AFFIRM; Opinion Filed April 13, 2016.

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00528-CV

LINDA FITZERMAN, Appellant
V.
CLASSIC AMERICANA, LLC, Appellee

On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-14-12166

MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Myers
Opinion by Justice Myers
This is a dispute between a limited liability company and the wife of its former manager

and officer. The trial court granted appellee Classic Americana LLC’s motion for partial

summary judgment on its claims for breach of fiduciary duty, fraud, unjust enrichment, and

conspiracy against appellant Linda Fitzerman and her husband Todd Boone Fitzerman. 1 The

case then proceeded to trial on the issue of damages. The trial court rendered judgment on the

jury’s verdict in favor of Classic Americana. In seven issues, Linda challenges the trial court’s

summary judgment ruling, the admission and exclusion of evidence at trial, the jury instructions,

the sufficiency of the evidence to support the jury’s verdict, and the awards of actual and

exemplary damages. For the reasons that follow, we sustain Linda’s challenge to the sufficiency

1
For clarity we refer to the Fitzermans as “Todd” and “Linda.”
of the evidence to support a portion of the actual damages awarded and suggest remittitur. We

overrule all other issues.

BACKGROUND

Classic Americana is an automobile dealership formed in December 2007. Todd was

Classic Americana’s manager, president, secretary, and treasurer from Classic Americana’s

inception. Stephen Perkins, a member of Classic Americana, received a telephone call in

January 2010 from one of Classic Americana’s lenders. The lender expressed concerns about

Classic Americana’s line of credit and related collateral. The members of Classic Americana

investigated, determined there were significant missing funds, and removed Todd from all

positions he held. Initially the parties agreed to perform an audit to determine any amounts owed

by either party to the other. But neither Todd nor Linda complied with the terms of the

agreement, and Classic Americana retained CFO Partners to conduct a forensic investigation.

Jules Ellis, a certified public accountant employed by CFO Partners, conducted the investigation

and determined, among other findings, that

 Todd did not comply with financial reporting requirements of Classic
Americana’s company agreement;

 In 2009, Todd wrote and signed 67 checks from Classic Americana’s bank
accounts made payable to himself totaling $116,650.00, including multiple checks
for different amounts on the same day. There were no documents to support any
business purpose for these checks;

 Between 2008 and 2010, Todd wrote and signed 16 checks from Classic
Americana’s bank accounts made payable to “cash” or used to purchase
unexplained cashier’s checks. These transactions totaled $148,691.54. There
were no documents to support any business purpose for these checks;

 In 2008, there were twenty checks written for petty cash totaling $4,522.67 from
Classic Americana’s bank account, with no documents to support a business
purpose for the checks;

 Between December 2008 and December 2009, there were 320 checks totaling
$1,728,493.33 returned by three different banks for nonsufficient funds. Classic
Americana incurred $5,435.00 in bank fees related to these transactions;
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 A warrant for Todd’s arrest was issued in September 2009 as a result of multiple
checks not paid due to insufficient funds;

 In at least seventeen instances, cars were misrepresented as valid and current
assets of Classic Americana to be used as collateral against a line of credit with
Texas Star Bank. The proceeds from the sale of these collateralized vehicles were
collected but not deposited in a company bank account and not used to repay the
related loans to the bank. The total debt of $399,100.00 owed to the bank for
these seventeen vehicles was paid by Perkins from his personal funds;

 Although Todd did not have authority from Classic Americana to approve or pay
any expense exceeding $20,000, he signed 121 checks totaling $4,024,163.64 that
were each $20,000 or greater. Ten of the 121 checks, totaling $281,195.77, were
written to Linda;

 A total of $57,322.66 in unexplained expenses was paid using Classic
Americana’s funds between February 2008 and December 2009. These expenses
appeared to be Todd’s personal expenses, such as college tuition for Todd’s son
Brad, leisure travel, and expenses incurred at high-end clothing stores. There
were no documents to support a business purpose for these expenses;

 Seven checks totaling $24,431.00 were written on Classic Americana accounts to
Todd’s son Brad, and two checks totaling $4,700.00 were written on Classic
Americana accounts to Todd’s daughter Pamela. Neither Brad nor Pamela was
employed by the company or was a documented contractor of the company for
any purpose. There were no documents to support a business purpose for these
payments;

 There were numerous unexplained transactions involving use of company funds
by both Brad and Linda;

 Linda was not employed by Classic Americana and was not a documented
contractor of the company for any purpose. Thirty-seven checks and wire
transfers totaling $519,786.56 of company funds were written directly to Linda or
paid expenses for her benefit between April 2009 and January 2010;

 Multiple Classic Americana credit cards were charged for approximately 190
transactions totaling more than $60,000 for which there was no documented
business purpose. One of the cards was opened jointly for Classic Americana and
for Ethel Fitzerman, Todd’s mother, who was not employed by the company and
was not a member, manager, vendor, or contractor of the company;

 Over $60,000 relating to sales of two vehicles was missing;

 After Linda had been reimbursed by the company for charges made on her credit
cards, she reported the transactions as fraudulent, resulting in the levy of
$35,909.96 in credit card chargebacks against Classic Americana;

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  Todd was responsible for ensuring that Classic Americana complied with state
and federal laws. The audit revealed at least 24 compliance violations; and

 Between January 2010 and January 2013, Perkins paid over $1.5 million from
personal funds to satisfy the debts and operating expenses of Classic Americana.

Classic Americana filed suit against Todd and Linda on February 15, 2013. Classic

Americana then sought partial summary judgment, as to liability but not damages, on its claims

for breach of fiduciary duty, conspiracy, common law fraud, and unjust enrichment. The trial

court granted Classic Americana’s motion. Todd then filed a petition for relief in bankruptcy

court. The trial court severed Classic Americana’s claims against Linda, and the severed cause

proceeded to a jury trial on the remaining issue of damages. The jury awarded Classic

Americana $2,980,392.60 on its cause of action for fraud; $1,500,000 in exemplary damages for

fraud; and $519,607.40 for unjust enrichment. Classic Americana elected to recover on the

jury’s fraud verdict, and the trial court rendered judgment accordingly. Linda’s motion for new

trial was overruled by operation of law. This appeal followed.

DISCUSSION

A. Summary Judgment

In her first issue Linda contends the trial court erred by granting summary judgment. She

argues there were genuine issues of material fact as to her “responsibility for the purported

wrong-doings of Todd and as to whether she committed the alleged wrongs.” We review this

complaint de novo. McMahon Contracting, L.P. v. City of Carrollton, 277 S.W.3d 458, 467

(Tex. App.—Dallas 2009, pet. denied).

Classic Americana bore the burden to establish that there were no genuine issues of

material fact and that it was entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c);

Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014). Classic

Americana’s motion for summary judgment was comprehensive. It provided a statement of facts

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supported by affidavits, the forensic investigation report, and other exhibits. It enumerated each

of the elements of its causes of action for fraud, civil conspiracy, breach of fiduciary duty, and

unjust enrichment, citing applicable authority, and explained how its summary judgment

evidence established each element. It specified that it sought summary judgment as to liability

only, but cited evidence that it had suffered specific damages as a result of Todd and Linda’s

conduct.

Specifically as to Linda, the motion for summary judgment alleged that Linda and Todd

conspired to defraud Classic Americana. Classic Americana cited the elements of conspiracy:

two or more persons; an object to be accomplished; a meeting of the minds on the object or

course of action; one or more unlawful acts; and damages as a proximate result, citing Tri v.

J.T.T., 162 S.W.3d 552, 556 (Tex. 2005). Classic Americana then argued that:

 Todd and Linda were the two persons who conspired to defraud it;

 Todd and Linda had the objective of defrauding Classic Americana into paying
their personal expenses through Todd’s use of Linda’s credit card “to pay for both
business expenses and for their personal expenses under the guise of
reimbursement of only legitimate company expenses”;

 a meeting of the minds could be inferred by evidence that Todd and Linda acted
in concert, citing proof that Linda received over $500,000 worth of checks from
Classic Americana issued at Todd’s request. Evidence from the forensic
investigation showed that Todd and Linda used company funds to pay for
expenses such as personal travel, meals, and Todd’s son’s tuition;

 Linda took overt actions in furtherance of the conspiracy by allowing Todd to use
her personal credit card for company purposes, accepting and depositing checks
from Classic Americana into her personal checking account, and paying personal
creditors with company funds.

Classic Americana also set forth the legal elements and factual bases for its fraud claim

against Linda and Todd, again relying on evidence from the forensic investigation. Classic

Americana argued that Todd and Linda made false material representations to it “every time a

personal bill was presented to Plaintiff for reimbursement, every time a company credit card was

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used for non-business related purposes, and every time a check or wire transfer was received by

a Defendant for non-business purposes.” Classic Americana argued that intent and knowledge

of falsity were established because Linda and Todd were the only persons using Linda’s credit

cards and submitting the charges to Classic Americana for reimbursement of their personal

expenses. Classic Americana contended that Linda deposited the reimbursement checks and

paid her credit cards, causing injury to Classic Americana. Classic Americana made similar

arguments regarding its allegations of unjust enrichment.

When a movant meets the burden of establishing each element of the claim or defense on

which it seeks summary judgment, the burden then shifts to the nonmovant to disprove or raise

an issue of fact as to at least one of those elements. See Amedisys, Inc., 437 S.W.3d at 511.

Because Classic Americana met its summary judgment burden, Linda was required to offer

summary judgment evidence raising a fact issue on Classic Americana’s claims. See City of

Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979).

Linda and Todd’s summary judgment response included (1) an argument regarding

impermissible inferences from Todd’s assertion of his privilege against self-incrimination, and

(2) a one-sentence assertion that “Non-Movants claim genuine issues of material fact exist[ ] as

to any and/or all of Movant’s claims and submit the affidavit of Defendant Todd Fitzerman, the

deposition of Linda Fitzerman (without exhibits), filed with this response and incorporated by

such reference for all purposes as if recited verbatim herein, as well as Movant’s pleadings, as

summary judgment evidence.” The response does not point to any particular testimony in either

Todd’s affidavit or Linda’s deposition that raises a genuine issue of material fact on any of

Classic Americana’s causes of action. The response does not mention any specific cause of

action or how Classic Americana’s summary judgment evidence was insufficient to establish its

right to judgment on any specific cause of action. Although Linda’s appellate brief cites to

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testimony from her deposition and in Todd’s affidavit to support her argument that fact issues

existed on Classic Americana’s causes of action, she failed to make any such argument in the

trial court.

Linda may not defeat summary judgment by raising a fact issue for the first time on

appeal that was not expressly presented to the trial court. City of Houston, 589 S.W.2d at 679.

We therefore overrule all of Linda’s complaints about issues of fact that could have been raised

in response to Classic Americana’s motion for summary judgment, but were not. See id.2

The only challenge Linda may assert on appeal is the legal sufficiency of the grounds

presented by Classic Americana. See Amedisys, Inc., 437 S.W.3d at 512. She makes two such

arguments: (1) that because Todd was the sole manager and president of Classic Americana, any

misrepresentations were merely made by Todd to himself, and Todd would have defrauded only

himself; and (2) that as a matter of law, there can be no conspiracy between a husband and wife.

She cites section 101.254 of the business organizations code for the first proposition, and section

3.201 of the family code and Patel v. Kuciemba, 82 S.W.3d 589, 595 (Tex. App.—Corpus

Christi 2002, pet. denied), for the second.

The business organizations code does not support the notion that as a matter of law, a

manager of a limited liability company cannot defraud the company because he is an agent of the

company. The code section on which Linda relies addresses who may be an agent of a limited

liability company and how an agent may bind the company for his acts. See TEX. BUS. ORGS.

CODE ANN. § 101.254 (West 2012). But the section immediately following addresses when the

company or any of its members may have a cause of action against a governing person or officer

for breach of duty in making, authorizing, or performing a contract or transaction between

2
In her reply brief Linda also contends that Classic Americana waived any objections to her deposition testimony and Todd’s affidavit
because it failed to obtain a ruling from the trial court on any objections. But any such waiver does not affect our conclusion that Linda failed to
raise a genuine issue of material fact precluding summary judgment in Classic Americana’s favor. The issue is Linda’s failure to specify any
evidence raising a fact issue, not admissibility of the evidence.

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himself and the company. See TEX. BUS. ORGS. CODE ANN. § 101.255; see also Twenty First

Century Holdings, Inc. v. Precision Geothermal Drilling, L.L.C., No. 03-13-00081-CV, 2015

WL 1882267 at *3–4 (Tex. App.—Austin Apr. 23, 2015, no pet.) (mem. op.)3 (agreement signed

by governing person of limited liability company not enforceable against company because

requirements of section 101.255 not met).

Nor does the family code provide that spouses may never conspire with each other.

Section 3.201 provides in relevant part that (1) a person is liable for the acts of the person’s

spouse only if the spouse acts as an agent for the person, and (2) a spouse does not act as an

agent for the other spouse solely because of the marriage relationship. TEX. FAM. CODE ANN.

§ 3.201(a), (c) (West 2006). Section 3.201 and Patel address a person’s liability as an agent for a

spouse. See, e.g., In re Lipsky, 411 S.W.3d 530, 547 (Tex. App.—Fort Worth 2013, orig.

proceeding), mand. denied, 460 S.W.3d 579 (Tex. 2015) (“Shyla [wife] cannot be personally

liable for Steven’s [husband’s] acts merely because of their marriage relationship; he was not her

agent solely because they were married,” citing section 3.201); Patel, 82 S.W.3d at 595 (as a

matter of law, fact that parties were married was not evidence of apparent authority, citing

section 3.201).4 Classic Americana is not alleging, however, that Linda is liable for Todd’s

actions solely because she was his spouse or his agent. Instead, Classic Americana’s claims are

based on Linda’s own actions in participating in the conspiracy to defraud it. See, e.g., Carroll v.

Timmers Chevrolet, Inc., 592 S.W.2d 922, 926 (Tex. 1979) (“Once a conspiracy is proven, each

3
The judgment was vacated pursuant to settlement but the opinion was not withdrawn. Twenty First Century Holdings, Inc. v. Precision
Geothermal Drilling, L.L.C., No. 03-13-00081-CV, 2015 WL 5098666 (Tex. App.—Austin Aug. 28, 2015) (mem. op. on reh’g).
4
Linda also cites Tedder v. Gardner Aldrich, LLP, 421 S.W.3d 651, 655 (Tex. 2013), for the proposition that section 3.201 of the family
code “establishes the sole means of establishing derivative liability of a spouse.” The court in Tedder held that legal services provided to one
spouse in a divorce proceeding are neither a “community debt” (according to the court, “a concept often misused”) nor necessaries for which the
other spouse is statutorily liable to pay. Id. But the court in Tedder did not address whether a spouse who had conspired to defraud a third party
was nonetheless immune from liability because her co-conspirator was her spouse, the proposition Linda urges here.

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co-conspirator ‘is responsible for all acts done by any of the conspirators in furtherance of the

unlawful combination.’”) (quoting State v. Standard Oil Co., 107 S.W.2d 550, 559 (Tex. 1937)).

Linda’s challenges to the legal sufficiency of the summary judgment grounds presented

by Classic Americana are not well-taken. Summary judgment for Classic Americana was

proper. See TEX. R. CIV. P. 166a(c). We overrule Linda’s first issue.

B. Exclusion of Evidence

In her second issue Linda complains that the trial court improperly excluded evidence

relating to the amount and measure of damages. We review this complaint for abuse of

discretion. Estate of Finney, 424 S.W.3d 608, 612 (Tex. App.—Dallas 2013, no pet.). A

judgment will not be reversed based on the admission or exclusion of evidence unless the

appellant establishes that (1) the trial court’s ruling was in error and (2) the error was reasonably

calculated to cause and probably did cause the rendition of an improper judgment. Id.

“Reversible error does not usually occur in connection with evidentiary rulings unless the

appellant demonstrates the whole case turned on the particular evidence excluded or omitted.”

Id. When reviewing whether evidence was properly admitted or excluded, the appellate court

must review the entire record. Id.

Linda complains that she was “unable to offer evidence to explain that the major portion

of the moneys received by her, which form a major portion of the judgment granted, was

received in payment of debts created when Appellee used Appellant’s credit cards in the

operation of its business.” She cites to four specific instances in the trial court record.

First, Linda complains that the trial court sustained an objection to her counsel’s opening

statement. This is not a complaint about exclusion of evidence, and we do not consider it further.

See, e.g., In re East, 476 S.W.3d 61, 68 (Tex. App.—Corpus Christi 2014, orig. proceeding)

(argument of counsel is not evidence).

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 Linda’s remaining complaints relate to evidence she sought to offer that was contrary to

the trial court’s summary judgment ruling. Linda complains that the trial court sustained two

objections to her counsel’s cross-examination of Ellis asking whether Todd’s actions were

“sanctioned” or “authorized” by Classic Americana. The trial court sustained these objections on

the ground that the propriety of Todd’s actions had already been determined by the summary

judgment ruling. Linda also complains of the exclusion of her own testimony. She contends that

after the jury had retired for the day, her counsel called her as a witness, and the parties argued

whether or not she could “contest liability.” The trial court ruled that “I’m going to preclude her

from testimony if that’s what you’re going to get into,” but allowed her counsel to make an offer

of proof. On direct examination Linda testified:

 she did not have any active participation in the day-to-day operations of Classic
Americana;

 she gave her credit cards to Classic Americana in order to run the business day to
day, because Todd and Perkins could not get credit cards for the company;

 she did not simply give her credit cards to Classic Americana; her agreement was
that the company could use the cards as long as they were paid in full every
month, and the company did pay the cards in full every month;

 Classic Americana also paid her “for items that were not associated with the
business of Corvettes of Dallas,” but she did not remember exact amounts, which
had been highlighted on the credit card statements. Although Classic Americana’s
counsel objected that no documents had been produced to support this testimony,
the trial court stated it would permit testimony on the subject as part of the bill of
exception. Linda’s counsel, however, passed the witness instead of asking any
further questions.

These complaints relate to evidence by which Linda sought to prove that no fraud or

conspiracy took place, and that there was nothing wrongful in use of her credit cards. But

Linda’s liability for fraud and conspiracy was determined by the summary judgment and was not

a question for the jury. Although Linda characterizes the evidence as relating to “the amount and

measure of damages,” none of her complaints arise from the admission or exclusion of evidence

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of any specific amount or category of damages. She declined the opportunity to present specific

evidence in her offer of proof. Reviewing the entire record, see Estate of Finney, 424 S.W.3d at

612, we conclude the trial court properly excluded evidence by which Linda sought to prove she

did not commit fraud or conspire in Todd’s fraud and breach of fiduciary duty. We overrule

Linda’s second issue.

C. Jury Instructions

Question 3 of the jury charge inquired whether Linda committed theft of property with a

value of $20,000 or greater. The jury answered “yes” to this question. There was no

corresponding question regarding any damages resulting from theft. Instead, Question 3 was

conditioned on a finding of exemplary damages in response to Question 2. In her third issue,

Linda contends submission of Question 3 was error because Classic Americana did not plead or

prove a claim under the Texas Theft Liability Act. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 134.001–134.005 (West 2011 and Supp. 2015). Linda’s counsel objected at trial:

Question No. 3 I’m objecting to because it hasn’t been pled anywhere. This
is a definition of theft right out of the Criminal Penal Code and she’s not in
front of a grand jury to be indicted, but an answer to that question could
result in criminal prosecution.

In order to warrant submission to the jury, an issue must be raised by both the pleadings

and the evidence. See TEX. R. CIV. P. 278; Olivares v. Mares, 390 S.W.3d 608, 616 (Tex.

App.—Dallas 2012, no pet.). We review claimed error in the jury charge under an abuse of

discretion standard. Webb v. Glenbrook Owners Ass’n, Inc., 298 S.W.3d 374, 380 (Tex. App.—

Dallas 2009, no pet.) (citing Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex.

1990)). A trial court’s clear failure to analyze and apply the law correctly constitutes an abuse of

discretion. Id.

Classic Americana responds that Question 3 was based on a Texas pattern jury charge.

See Pattern Jury Charge (“PJC”) 115.43, Comm. on Pattern Jury Charges, State Bar of Tex.,
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Texas Pattern Jury Charges: Business, Consumer, Insurance & Employment (2014). PJC 115.43

is entitled “Question and Instructions—Theft as a Ground for Removing Limitation on

Exemplary Damages (TEX. CIV. PRAC. & REM. CODE § 41.008(c)(13)).” Classic Americana

argues that Question 3 was relevant to determine whether the limits on exemplary damages set

forth in Chapter 41 of the civil practice and remedies code were applicable. Under section

41.008(b), exemplary damages awarded against a defendant may not exceed an amount equal to

the greater of two times the amount of economic damages, plus noneconomic damages not to

exceed $750,000, or $200,000. TEX. CIV. PRAC. & REM. CODE ANN. § 41.008(b) (West 2015).

These limits do not apply, however, to a cause of action based on conduct described as a felony

under certain sections of the penal code committed knowingly or intentionally. Id. § 41.008(c).

Theft as defined in Chapter 31 of the penal code, “the punishment level of which is a felony of

the third degree or higher,” is included in the enumerated felonies. Id. § 41.008(c)(13). Classic

Americana argues that if the jury made an affirmative finding in response to Question 3, then any

exemplary damages award would not be subject to Chapter 41’s limits.

Linda’s objection to Question 3 was that Classic Americana did not plead a claim for

theft. But Question 3 was submitted not to support an award of damages for theft or to recover

damages under the theft liability act, but to provide a ground for removing the limitation on any

exemplary damages awarded by the jury for fraud. Classic Americana’s operative pleading did

seek exemplary damages for fraud. There was no abuse of discretion in submitting Question 3 to

the jury. And in any event, because the jury awarded exemplary damages in an amount less than

two times the amount of economic damages awarded, the trial court was not required to apply

section 41.008 in rendering judgment. Any error in submitting Question 3 to the jury did not

cause the rendition of an improper judgment or prevent Linda from properly presenting the case

on appeal. See TEX. R. APP. P. 44.1. We overrule Linda’s third issue.

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 D. Legal and Factual Sufficiency of the Evidence of Damages

In her fourth issue Linda complains that the evidence is legally and factually insufficient

to support the jury’s award of actual damages. Linda’s sixth issue, asserting that the actual

damages awarded against her were excessive, is premised on the same contentions. We therefore

address these issues together.

When an appellant challenges the legal sufficiency of the evidence on a matter for which

she did not have the burden of proof, she must demonstrate on appeal that there is no evidence to

support the adverse findings. McCullough v. Scarbrough, Medlin & Assocs., Inc., 435 S.W.3d

871, 892 (Tex. App.—Dallas 2014, pet. denied). Under a no-evidence point, we consider the

evidence in the light most favorable to the verdict, indulging every reasonable inference in

support. Id. A legal sufficiency challenge fails if there is more than a scintilla of evidence to

support the judgment. Id. When we evaluate a factual sufficiency challenge, we must consider

and weigh all the evidence; we can set aside a verdict only if the evidence is so weak or if the

finding is so against the great weight and preponderance of the evidence that it is clearly wrong

and unjust. Id. We must not substitute our judgment for that of the jury and are mindful in our

review that jurors are the sole judges of the credibility of the witnesses and the weight to be

given their testimony. Id.

Linda asserts that the jury’s actual damages award of $2,980,392.60 included the face

amounts of checks that were returned for nonsufficient funds. She contends this measure of

damages is improper, and urges that a proper measure would be extra costs incurred because of

the issuance of the checks, such as bank fees, and costs incurred because the payees did not

receive the funds transmitted by the check. She argues that the face amount of the checks is not

a measure of “how much Appellee either paid or for which the check was returned.”

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 Linda also argues that other amounts included in the testimony and report of Jules Ellis,

Classic Americana’s expert witness, were unsupported and conclusory.5 Linda contends that

Ellis, the forensic accountant whose findings we have summarized above, lacked the required

expertise to offer her opinions and used improper methodology in preparing her report and the

schedules and spreadsheets supporting it. Linda did not assert these objections at trial.

“Bare, baseless opinions will not support a judgment even if there is no objection to their

admission in evidence.” City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009). But

“when a reliability challenge requires the court to evaluate the underlying methodology,

technique, or foundational data used by the expert, an objection must be timely made so that the

trial court has the opportunity to conduct this analysis.” Id. at 817 (quoting Coastal Transp. Co.

v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004)). And objections to Ellis’s

qualifications must have been raised in the trial court in order to preserve error. See Duncan-

Hubert v. Mitchell, 310 S.W.3d 92, 105 (Tex. App.—Dallas 2010, pet. denied) (collecting cases).

We conclude that because Linda failed to object to Ellis’s qualifications, methodology,

techniques, and data at trial, she has waived these objections. See Pollock, 284 S.W.3d at 817;

Duncan-Hubert, 310 S.W.3d at 105. She may assert only her complaints of any opinions offered

by Ellis that are without reliable basis. See Pollock, 284 S.W.3d at 816.

Ellis testified at trial to the results of her forensic accounting investigation. Her report

and supporting exhibits were admitted into evidence. The record reflects that the jury’s award of

actual damages includes $1,723,057.30 calculated by Ellis to be the total of the face amounts of

320 checks returned for nonsufficient funds, minus the bank fees paid by Classic Americana in

5
Specifically, Linda argues that the jury’s award of $519,607.40 in response to Question 4 of the jury charge was “unsupportable.”
Question 4 inquired about damages for unjust enrichment. Because Classic Americana elected to recover for fraud rather than unjust enrichment,
the jury’s award of damages in response to Question 4 is not part of the judgment, we need not address the sufficiency of the evidence to support
it. See TEX. R. APP. P. 44.1 (judgment may not be reversed on appeal unless error complained of probably caused rendition of improper
judgment). We also reject Linda’s challenge to the sufficiency of the evidence regarding credit card “chargebacks,” as we discuss below.

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connection with these checks.6 The remaining $1,257,335.30 is the total of Ellis’s calculations of

the irregularities found in the forensic investigation. Ellis did not testify that Classic Americana

paid the face amounts of the returned checks, and the exhibits supporting her testimony do not

include any documentation of payment of those amounts. Ellis testified on cross-examination:

Q. Okay. Schedule C, that’s the one that’s got returned checks, I believe,
right?

A. That’s correct.

Q. Do you know if any of these were made good?

A. I have no documentation that can tell what was made good and what
wasn’t.

In closing argument, Classic Americana’s counsel listed the totals from each of Ellis’s

schedules and provided two calculations for actual damages, one totaling $1,257,335.30 and one

totaling $2,980,392.60. As discussed, the latter amount chosen by the jury included the face

amounts of the returned checks. But Ellis’s report and testimony, the only evidence offered by

Classic Americana on the issue, did not provide support for an award of the face amounts of the

returned checks.7

If, as we conclude here, part of damages verdict lacks sufficient evidentiary support, the

proper course is to suggest a remittitur of that part of the verdict. Larson v. Cactus Util. Co., 730

S.W.2d 640, 641 (Tex. 1987); TEX. R. APP. P. 46.3 (court of appeals may suggest remittitur).

6
Ellis’s report shows the total amount of the face amounts of the returned checks to be $1,728,493.33. Ellis’s report also reflects, however,
that Classic Americana “incurred $5,436.00 in bank fees related to these transactions.” The difference between these two numbers is
$1,723,057.30.
7
Linda also complains of the $35,909.96 in damages reflected on Ellis’s Schedule N for credit card “chargebacks.” Ellis’s report explains
that the “chargebacks” were charges on Linda’s credit card account for which she was reimbursed by Classic Americana. After reimbursement,
Linda reported to her credit card company that the charges were fraudulent, and payment was withheld from each vendor affected. The vendors
tried to collect the funds from Classic Americana, as well as posting negative reviews of the company on the internet. Linda argues the amount
of the chargebacks is not the correct measure of damages, “because, as a result of those charge backs, [Classic Americana] merely owes money it
owed before it used [Linda’s] credit cards to pay its debt.” While “theoretically, a loss might be the loss of a valuable supplier,” Linda argues
that no such evidence was presented to the jury. Schedule N, however, itemizes the vendors, amounts, and dates in question for each chargeback,
and Linda does not dispute that she was paid in full by Classic Americana each of the amounts in question, that the vendors were not paid, or that
the vendors sought to collect from Classic Americana. We conclude the evidence was legally and factually sufficient to support the inclusion of
the amount shown on Ellis’s Schedule N in the damages awarded to Classic Americana.

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Consequently, we suggest a remittitur of $1,723,057.30, the face amounts of the checks returned

for nonsufficient funds minus the fees paid, leaving an actual damages award to Classic

Americana of $1,257,335.30, the total of the damages calculated by Ellis in the forensic

investigation for irregularities other than the face amounts of the returned checks. As the

prevailing party at trial, Classic Americana must be given the option of accepting the remittitur

or having the case remanded for a new trial. Bechtel Corp. v. CITGO Prods. Pipeline Co., 271

S.W.3d 898, 922 (Tex. App.—Austin 2008, no pet.). If the remittitur is timely filed, we will

modify the judgment accordingly and affirm as modified. See McLeod v. Gyr, 439 S.W.3d 639,

653 (Tex. App.—Dallas 2014, pet. denied). If the remittitur is not timely filed, we must reverse

the trial court’s judgment and remand the cause. TEX. R. APP. P. 46.3 (if remittitur not timely

filed, court of appeals must reverse trial court’s judgment); TEX. R. APP. P. 44.1(b) (court of

appeals may not order separate trial solely on unliquidated damages if liability contested);

Estrada v. Dillon, 44 S.W.3d 558, 562 (Tex. 2001) (remand for new trial only on damages issue

is improper even where appellant did not challenge liability post-judgment).

We sustain Linda’s complaint that the face amounts of the returned checks should not

have been included in the trial court’s damages award, and we suggest remittitur. In all other

respects Linda’s fourth and sixth issues are overruled.

E. Exemplary Damages Question

In her fifth issue Linda complains that the exemplary damages question was improper

because it did not include an instruction that the jury’s verdict must be unanimous. Linda did not

object to the charge on this basis in the trial court, and has therefore waived her complaint. See

Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817, 829–30 (Tex. 2012) (complaint to jury

charge waived unless specifically included in an objection) (citing TEX. R. CIV. P. 274 and TEX.

R. APP. P. 33.1(a)(1)). And in any event, the record reflects that when the jury returned its

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verdict, the trial court inquired whether the verdict was unanimous, and the jury answered in the

affirmative. We overrule Linda’s fifth issue.

F. Propriety of Exemplary Damages

Linda’s seventh issue complains that the jury’s award of exemplary damages for fraud in

response to Question 2 was improper. She argues that the exemplary damages award was

“tainted by the same errors” as the award of actual damages for fraud in response to Question 1,

specifically, that the “overstated” amount of actual damages “affected the amount of exemplary

damages awarded.” She also argues the jury was improperly influenced by the “unsupported and

inappropriate jury question regarding theft.” She cites no authority in support of her arguments.

Although we agree that a portion of the actual damages awarded in the judgment was not

supported by sufficient evidence, it does not necessarily follow that the award of exemplary

damages was excessive. The jury awarded exemplary damages of $1,500,000, approximately

half of the actual damages awarded. If Classic Americana accepts our suggestion of remittitur,

these exemplary damages would exceed actual damages of $1,257,335.30 by approximately

$250,000. Although Linda does not provide argument or authority on the subject, we

nonetheless consider whether the jury’s award of punitive damages is excessive under the

standards set forth in Alamo National Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 1981). See

Ellis Cnty. State Bank v. Keever, 888 S.W.2d 790, 798 (Tex. 1994) (when upholding punitive

damage award, court of appeals must detail relevant evidence explaining why it supports or does

not support award in light of Kraus factors); see also TEX. CIV. PRAC. & REM. CODE ANN.

§ 41.013 (West 2015) (judicial review of award).

The Kraus factors include (1) the nature of the wrong, (2) the character of the conduct

involved, (3) the degree of culpability of the wrongdoer, (4) the situation and sensibilities of the

parties concerned, and (5) the extent to which such conduct offends a public sense of justice and

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propriety. Keever, 888 S.W.2d at 798 (citing Kraus, 616 S.W.2d 910); see also TEX. CIV. PRAC.

& REM. CODE ANN. § 41.011 (listing factors). In Question 2, the exemplary damages question in

the jury charge, the jury was instructed as to these factors.

The wrong in this case was fraud. The character of Linda’s conduct was her conspiracy

with Todd, in breach of his fiduciary duty, to intentionally defraud Classic Americana of over

one million dollars, using the funds for her own personal expenses. One example of Linda’s

degree of culpability was shown in Schedule K of Ellis’s report. Schedule K reflected that

although Linda was not employed by Classic Americana and was not a documented contractor of

the company for any purpose, thirty-seven checks and wire transfers totaling $519,786.56 of

company funds were written directly to Linda or paid expenses for her benefit between April

2009 and January 2010. The trial court determined, as a matter of law, that Linda committed

fraud, conspired with Todd to defraud Classic Americana, and was unjustly enriched by her

conduct. We have concluded that the trial court did not err by granting summary judgment in

Classic Americana’s favor. Factors such as remorse, remedial measures, and ability to pay

punitive damages are relevant in determining the situation and sensibilities of the parties. See

Ellis Cnty. State Bank v. Keever, 936 S.W.2d 683, 688 (Tex. App.—Dallas 1996, no writ)

(opinion on remand). Although Linda argued that she gave her credit cards to Classic Americana

so that it could pay its business expenses, she never attempted to offer any documents or other

proof to support her contentions in response to Classic Americana’s summary judgment motion,

nor did she offer any proof at trial regarding her ability to pay punitive damages, or any remedial

measures she had taken. The only testimony she proffered was to deny that any wrongdoing had

occurred. Finally, although we consider that the harm to Classic Americana was economic,

Linda’s repeated fraud offends a public sense of justice and propriety. See Hernandez v.

Sovereign Cherokee Nation Tejas, 343 S.W.3d 162, 178 (Tex. App.—Dallas 2011, pet. denied)

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(discussing fifth Kraus factor). We conclude that the jury’s award of punitive damages meets the

criteria set forth in Kraus and is not excessive even in light of our suggested remittitur of actual

damages. We overrule Linda’s seventh issue.

CONCLUSION

We overrule Linda’s first, second, third, fifth, and seventh issues. We sustain Linda’s

fourth and sixth issues only to the extent of suggesting remittitur of $1,723,057.30 of the actual

damages awarded to Classic Americana. In accordance with rule 46.3 of the Texas Rules of

Appellate Procedure, if Classic Americana files with this Court within fifteen (15) days from the

date of this opinion a remittitur of $1,723,057.30 of the actual damages awarded to Classic

Americana we will modify the trial court’s judgment to award Classic Americana actual

damages in the amount of $1,257,335.30, and affirm the trial court’s judgment as modified. If

the suggested remittiturs are not filed timely, we will reverse the trial court’s judgment and

remand the cause for new trial. TEX. RS. APP. P. 46.3, 44.1(b).

/Lana Myers/
LANA MYERS
150528F.P05 JUSTICE

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 Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

LINDA FITZERMAN, Appellant On Appeal from the 68th Judicial District
Court, Dallas County, Texas
No. 05-15-00528-CV V. Trial Court Cause No. DC-14-12166.
Opinion delivered by Justice Myers; Justices
CLASSIC AMERICANA, LLC, Appellee Francis and Lang-Miers participating.

In accordance with this Court’s opinion of this date, we suggest remittitur of
$1,723,057.30 of the actual damages awarded to appellee Classic Americana, LLC. In
accordance with rule 46.3 of the Texas Rules of Appellate Procedure, if Classic Americana, LLC
files with this Court within fifteen (15) days from the date of this Court’s opinion a remittitur of
$1,723,057.30 of the actual damages awarded to Classic Americana, LLC, we will modify the
trial court’s judgment to award Classic Americana, LLC actual damages in the amount of
$1,257,335.30, and affirm the trial court’s judgment as modified. If the suggested remittiturs are
not filed timely, we will reverse the trial court’s judgment and remand the cause for new trial.

It is ORDERED that appellee Classic Americana, LLC recover its costs of this appeal
from appellant Linda Fitzerman.

Judgment entered this 13th day of April, 2016.

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