Asta Partners, LLC and Asta Gold 1, LLC v. Velumani Palaniswamy

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00371-CV
___________________________

ASTA PARTNERS, LLC AND ASTA GOLD 1, LLC, Appellants

V.

VELUMANI PALANISWAMY, Appellee

On Appeal from the 462nd District Court
Denton County, Texas
Trial Court No. 17-1244-431

Before Sudderth, C.J.; Bassel and Womack, JJ.
Memorandum Opinion by Justice Bassel
 MEMORANDUM OPINION

I. Introduction

This is a case in which a founding co-manager—Appellee Velumani

Palaniswamy (Velu)—siphoned funds from Appellants Asta Partners, LLC and Asta

Gold 1, LLC from 2009 to 2015. Appellants then sued Velu, 1 alleging claims for

theft, conversion, breach of contract, breach of fiduciary duty, fraud, and malice and

seeking loss-of-use damages, prejudgment interest, and attorneys’ fees. The claims

were resolved piecemeal via a summary judgment, a jury trial, and a bench trial. The

trial court granted summary judgment for Appellants on their claims for theft,

conversion, and breach of contract. The damages related to those claims were tried to

a jury, as well as the claims for breach of fiduciary duty, fraud, and malice. After both

sides rested in the jury trial, the trial court granted Appellants’ motion for a directed

verdict on their breach-of-fiduciary-duty claim; the jury found no fraud or malice and,

following the agreed-to mitigation-of-damages instruction that was included in the

jury charge, awarded Appellants $130,100 as damages for theft, conversion, and

breach of contract. The trial court held a bench trial on prejudgment interest, loss-of-

use damages, and attorneys’ fees and awarded Appellants $52,040 in attorneys’ fees

1
Appellants initially sued Velu; Velu’s wife, Selvi Palaniswamy; and Kannan
Kalimuthu but nonsuited Kalimuthu six months later. Appellants amended their
petition to sue only Velu and Selvi, but prior to the start of the jury trial, Appellants
nonsuited their claims against Selvi in exchange for a stipulation that “any amounts
withdrawn from any Asta account by [Velu], per checks written to Selvi [were] to be
treated just as if he [had written] the checks himself.”

2
for the trial proceedings and $0 for prejudgment interest. The trial court’s final

judgment included only the jury’s damages award, the award of trial attorneys’ fees,

and a statement that no prejudgment interest was awarded; thus, the judgment

omitted any reference to the claim for loss-of-use damages and to the directed verdict

on the breach-of-fiduciary-duty claim. Appellants filed a motion to correct the

judgment so that it would reference the directed verdict on the breach-of-fiduciary-

duty claim. Within that motion, they also sought a judgment notwithstanding the

verdict (JNOV) on the damages award, asking the trial court to disregard the jury’s

finding that Appellants could have avoided $102,563.73 of the damages for theft,

conversion, and breach of contract by exercising reasonable care and claiming that

they conclusively proved $232,663.73 in damages. But the trial court denied the

motion.

On appeal, Appellants raise five issues contending that the trial court erred by

denying their JNOV and by not awarding the full amount of damages that they claim

were conclusively proven; that the trial court abused its discretion by failing to award

the full amount of proven attorneys’ fees and any appellate attorneys’ fees,

prejudgment interest, and loss-of-use damages; and that the trial court abused its

discretion by failing to amend the judgment to include the directed verdict on the

breach-of-fiduciary-duty claim. Based on the analyses below for Appellants’ first,

second, fourth, and fifth issues, we hold that the trial court did not err or abuse its

discretion because

3
 • the jury charge specifically allowed the jury to reduce the damages by the

amount that the jury found Appellants could have avoided by the

exercise of reasonable care, regardless of the discovery date of the

breach; thus, sufficient evidence supported the jury’s answer to the

mitigation instruction;

• the general principles of equity governing prejudgment interest did not

warrant an award of prejudgment interest under the facts here;

• Appellants failed to conclusively establish that they had incurred loss-of-

use damages based on their pleadings; and

• the ruling on the directed verdict merged into the trial court’s judgment.

But because the trial court’s findings of fact reflect that the trial court failed to follow

the two-step lodestar method for calculating trial attorneys’ fees and because the trial

court failed to award any appellate attorneys’ fees despite that Appellants were entitled

to an award of appellate attorneys’ fees, we sustain Appellants’ third issue and reverse

and remand solely for a redetermination of trial attorneys’ fees and for the trial court

to determine the amount of appellate attorneys’ fees.

4
 II. Background

Asta Partners, LLC and Asta Gold 1, LLC were formed in 20082 by an initial

group of twenty members—consisting of family, friends, and relatives of Velu and

Selvi and Ramasamy Eswaran (Samy) and his wife—who pooled together over

$400,000 and purchased a building the following year. The members agreed to have a

property-management company manage the building’s day-to-day operations and

selected Vintage Realty to serve as the property manager. Vintage Realty held the

checkbook for Asta Gold.

Velu and Samy served as Appellants’ initial co-managers, but Velu served as the

point person. Although Samy was authorized to sign checks on Appellants’ account

at PointBank and had equal online access to the account, Velu held the only

checkbook for Asta Partners and was the only one with access to the QuickBooks®

for Asta Partners. Vintage sent profit-and-loss reports only to Velu. Dale Downing

served as the CPA who prepared Appellants’ tax returns, but he did not serve as a

bookkeeper; instead, Velu was in charge of the bookkeeping and supplied Downing

with the financial statements that he prepared on QuickBooks.®

2
Each LLC had its own Company Agreement. The Company Agreements
contained virtually the same provisions, except that the Company Agreement for Asta
Partners contains Sections 6.04 through 6.10, dealing with managers; Asta Gold’s
Company Agreement omits those sections. The parties focus on the Asta Partners’
Company Agreement. We therefore also reference singularly to that Company
Agreement.

5
 According to the Company Agreements, the members were entitled to annual

financial statements. In 2009, Samy and other members started asking Velu for the

financial statements. Velu gave excuses for why he could not provide the financials.

Samy continued to ask Velu quarterly for financial statements for the following six

years but did not take any additional steps despite receiving no financial statements

from Velu. Samy became concerned only when PointBank called him in June 2015

and told him that the prior year’s taxes had not been paid.

The following month, the members received an email from Velu in which he

stated that he had loaned money to himself from Appellants and that he would pay it

back with nominal interest. Velu did not state the amount that he had taken.

In August 2015, Velu turned over Appellants’ financial statements to Samy.3

The amount calculated from QuickBooks® that Velu had turned over showed that he

had taken $155,000, but a calculation that was made at a later date using Velu’s

personal bank statements showed that he had taken $232,000.

After Velu failed to repay the money, Appellants filed the underlying suit

alleging claims for theft, conversion, breach of contract, breach of fiduciary duty,

fraud, and malice and seeking actual damages, loss-of-use damages, prejudgment

interest, and attorneys’ fees. As noted above, the trial court granted summary

3
After receiving the financial information from Velu, Samy and fellow member
Maha Sengottiyan went to PointBank and removed Velu from the account and added
Sengottiyan’s name to the account; Sengottiyan also replaced Velu as a co-manager.

6
judgment in favor of Appellants on their claims for theft, conversion, and breach of

contract.

During the jury trial on the damages for the theft, conversion, and breach-of-

contract claims, Velu agreed that from 2009 to 2015, he had taken over $412,000 out

of Appellants’ accounts by check and transferred it to his account, listing the

transactions on the financial statements as “loan to others.”4 From the $412,000, he

made annual tax payments and a $25,000 payment back to Asta Partners. He

admitted that he had not paid back $232,663.73—an amount that Appellants’ attorney

said reflected a deduction for the $25,000 payment.

Velu agreed that he should not have made the loans to himself because they

were prohibited by the Company Agreement. Velu testified that Samy did not know

about the loans and that July 2015 was the first time that Velu had told the members

that he had taken money. Even Velu’s wife, who was a member, did not know that

her husband had stolen money from Appellants. 5

Samy testified that he did not know prior to Velu’s July 2015 email that Velu

had taken money from Appellants. Samy said that he had asked Velu quarterly for the

financial statements because he wanted to know the amount they were saving and the

4
However, the 2011 tax return reflected a loan to Velu.
5
Selvi testified that Velu had a job traveling to India and was not paid for two
years of work and that she believes he took the money because he was ashamed that
he could not provide for his family. Selvi did not believe that Velu had intended to
hurt anyone.

7
return on investment. Samy agreed that he could have gone to the bank during the

2009 to June 2015 time frame and looked at the bank statements, but the withdrawals

would not have been identified as loans to Velu or “loans to others.”6 Samy admitted

that the tax returns did note a loan to members. Samy knew who served as

Appellants’ accountant, but he never asked Downing to provide a copy of the tax

returns from 2009 to 2015. Samy also admitted that he had met the account manager

at Vintage and could have called her and asked to receive the property-management

reports. Samy testified that he should have looked at the tax returns, the financials,

and Vintage’s reports from 2009 to 2015 but that he had trusted Velu 100%. Samy

agreed that under the Company Agreement, it was his job as a co-manager to look at

those documents.

During cross-examination, defense counsel questioned Samy about how long

he should have waited for financial information from Velu before seeking to obtain

the information from other sources:

Q. How many years do you think somebody has to deny you basic
financial information before you are failing to use ordinary care to call
Vintage, who knew you were a manager and you could get the
information from, Dale Downing, who knew you were the manager and
you could get information from, or PointBank, who knew you were the
manager and you could get information from?

6
However, Sengottiyan, who replaced Velu as co-manager, agreed at trial that
other than two cash withdrawals that Velu had made—one in 2009 and one in 2014—
totaling $6,000, the rest of the funds taken could have been discovered by looking at
the bank statements. Velu withdrew the rest of the money via checks written to
himself.

8
 How many years do you have to not get information before
you’re not using ordinary care as a manager to get the information?

A. I never suspected him, so that’s why I didn’t make an attempt.
But because the other members were asking for financials, my wife was
asking for the financial details, so I was insisting we need to do that
because I’m also a co[-]manager. I was repetitively asking.

Q. And so as the co[-]manager, if Velu’s not -- in other words, if
Velu’s not responsive to the members, there’s someone else who can be.
It was you, right?

A. Correct. Correct.

....

Q. And at any point in time, you could have gone to PointBank
and said, I want to get all the statements that you have for this account,
I’m a signatory, and they would have given it to you, correct?

A. That’s correct.

Q. And you didn’t do that in 2009, correct?

A. Yes.

Q. 2010, correct?

A. Yes.

Q. Or any time before 2015?

A. Correct.

....

Q. So you ignored your responsibilities as the manager because --

A. I won’t say ignored.

Q. -- because you were treating him like a friend; is that it?

9
 A. More than a friend.

Q. So you ignored your responsibilities outlined in the
[C]ompany [A]greement to maintain the records, to maintain the assets,
and you just relied on him and didn’t do your job?

A. You cannot say I didn’t do it. I was asking for that detail[],
and he was delaying it. So -- but I could have [taken the] extra step to go
find out, if I had suspected. I did not suspect him [of] doing that.

Samy made excuses about how his work schedule prevented him from

obtaining Appellants’ financial information but admitted that he could have contacted

Downing via email and that he “should have done it, but [he] didn’t do it.”

During the trial, a chart was admitted that listed the amounts taken by Velu

from 2009 to 2015. The chart showed that Velu had taken $73,000 in 2009 and

$57,100 in 2010, for a total of $130,100. The chart further showed that the total

amount taken by Velu during the 2009 to 2015 time frame—after deducting the taxes

paid and his $25,000 repayment—was $232,663.73.

At the conclusion of the evidence, the trial court granted Appellants’ motion

for a directed verdict on their breach-of-fiduciary-duty claim. The jury considered

Appellants’ claims for fraud and malice and damages for theft, conversion, and breach

of contract. The jury found no fraud or malice and returned a verdict for Appellants

in the amount of $130,100 for the theft, conversion, and breach-of-contract claims.

10
 A bench trial was later held on two dates, and the trial court heard evidence

and argument on attorneys’ fees, loss-of-use damages, and prejudgment interest.7 The

parties also filed briefs on the same issues. The trial court rendered a judgment on the

jury’s damages for the theft, conversion, and breach-of-contract claims; awarded trial

attorneys’ fees of $52,040; and awarded $0 prejudgment interest.

III. Damages Found by the Jury

In their first issue, Appellants argue that the trial court erred when it failed to

award what Appellants characterize as “the full amount of the damages” for the theft,

conversion, and breach-of-contract claims—$232,663.73—notwithstanding the jury’s

verdict that reduced that amount. Because, as explained below, (1) the jury charge

specifically allowed the jury to consider the time before Appellants discovered the

stealing in reducing the damages to only $130,100, and because (2) some evidence

supports the jury’s finding that Appellants could have avoided incurring $102,563.73

by exercising reasonable care, the trial court did not err by not altering the jury’s

damage award.

A. Standard of Review

A trial court may disregard a jury’s verdict and grant a JNOV if a directed

verdict would have been proper. Tex. R. Civ. P. 301; Fort Bend Cnty. Drainage Dist. v.

Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991). We review the grant or denial of a motion

A more detailed summary of the bench trial is set forth within the discussion
7

of Appellants’ second, third, and fourth issues.

11
for JNOV under a legal-sufficiency standard. Tanner v. Nationwide Mut. Fire Ins., 289

S.W.3d 828, 830 (Tex. 2009); Pointe W. Ctr., LLC v. It’s Alive, Inc., 476 S.W.3d 141, 150

(Tex. App.—Houston [1st Dist.] 2015, pet. denied). Therefore, because failure to

mitigate damages is an affirmative defense, Zimmerman Truck Lines, Inc. v. Pastran, 587

S.W.3d 847, 862 (Tex. App.—El Paso 2019, no pet.), Appellants must show that no

evidence supports the jury’s mitigation finding, see Graham Cent. Station, Inc. v. Peña, 442

S.W.3d 261, 263 (Tex. 2014).

We may sustain a legal-sufficiency challenge—that is, a no-evidence

challenge—only when (1) the record bears no evidence of a vital fact, (2) the rules of

law or of evidence bar the court from giving weight to the only evidence offered to

prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere

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

v. Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017); see also Ford Motor Co. v.

Castillo, 444 S.W.3d 616, 620 (Tex. 2014) (op. on reh’g); Uniroyal Goodrich Tire Co. v.

Martinez, 977 S.W.2d 328, 334 (Tex. 1998) (op. on reh’g). In determining whether

legally sufficient evidence supports the finding under review, we must consider

evidence favorable to the finding if a reasonable factfinder could and must disregard

contrary evidence unless a reasonable factfinder could not. Cent. Ready Mix Concrete

Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802,

807, 827 (Tex. 2005). We indulge “every reasonable inference deducible from the

12
evidence” in support of the challenged finding. Gunn v. McCoy, 554 S.W.3d 645, 658

(Tex. 2018).

Anything more than a scintilla of evidence is legally sufficient to support a

finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); Leitch v.

Hornsby, 935 S.W.2d 114, 118 (Tex. 1996); see also 4Front Engineered Sols., Inc. v. Rosales,

505 S.W.3d 905, 909 (Tex. 2016) (“The evidence is legally sufficient if . . . there is

more than a scintilla of evidence on which a reasonable juror could find the fact to be

true.”). Scintilla means a spark or trace. Scintilla, Black’s Law Dictionary (11th ed.

2019). More than a scintilla exists if the evidence rises to a level that would enable

reasonable and fair-minded people to differ in their conclusions. Rocor Int’l, Inc. v.

Nat’l Union Fire Ins., 77 S.W.3d 253, 262 (Tex. 2002); Merrell Dow Pharms., Inc. v. Havner,

953 S.W.2d 706, 711 (Tex. 1997). On the other hand, when the evidence offered to

prove a vital fact is so weak that it creates no more than a mere surmise or suspicion

of its existence, the evidence is no more than a scintilla and, in legal effect, is no

evidence. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Kindred v.

Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

Without an objection to the jury charge, we review evidentiary sufficiency in

light of the charge submitted. Romero v. KPH Consolidation, Inc., 166 S.W.3d 212, 221

(Tex. 2005) (citing Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 715 (Tex. 2001)).

13
 B. The Charge

The following damages question, which Appellants did not object to, contains a

mitigation instruction:

During closing argument, Velu’s counsel walked the jury through Question 2.

He pointed to the Company Agreement and Samy’s duties as a co-manager under that

agreement. He then told the jury that they would get to decide how long it was

reasonable for Samy to wait before he did his job and suggested that they conclude

that he should have waited no longer than one year.

C. Relevant Trial Exhibits

The unobjected-to chart that follows sets forth the dates, the check numbers,

and the amounts taken by Velu:

14
15
16
 The “Company Agreement of Asta Partners, LLC” was also admitted into

evidence, and the jury heard testimony about Samy’s duties as co-manager. Those

duties included, among others,

(a) entering into, making, and performing contracts, agreements, and
other undertakings binding the Company that may be necessary,
appropriate, or advisable in furtherance of the purposes of the Company
and making all decisions and waivers thereunder, including a
Fundamental Business Transaction;

(b) opening and maintaining bank and investment accounts and
arrangements, drawing checks and other orders for the payment of
money, and designating individuals with authority to sign or give
instructions with respect to those accounts and arrangements;

(c) maintaining the assets of the Company in good order; [and]

....

(h) selecting, removing, and changing the authority and
responsibility of lawyers, accountants, and other advisers and
consultants[.]

D. Analysis

The crux of Appellants’ argument on appeal—that the jury could not have

reduced the damages from the $232,633.73 net total shown on Appellants’ chart—

goes to the mitigation instruction. Appellants spend a full page of their brief stating

what Velu was required to show in order to establish mitigation and citing cases on

this topic. They argue that the jury could have only considered whether Appellants

exercised reasonable care in avoiding damages after July 2015, when they actually

discovered Velu’s stealing. This is an attack on the scope of the trial court’s

17
mitigation instruction within the damages question. Yet, Appellants did not object

during the charge conference to the submission of the mitigation instruction, which

does not so limit the jury’s consideration of mitigation. Because Appellants did not

object to the mitigation instruction contained in the damages question, we must

examine the sufficiency of the evidence in light of the charge as given. See id.; Bayer

Corp. v. DX Terminals, Ltd., 214 S.W.3d 586, 604 (Tex. App.—Houston [14th Dist.]

2006, pet. denied); see also Swank v. Sverdlin, 121 S.W.3d 785, 802 (Tex. App.—

Houston [1st Dist.] 2003, pet. denied) (“We are not authorized to evaluate the

sufficiency of the evidence under calculations different from those the jury were

instructed to employ.”). 8

8
In their reply brief, Appellants state that the language in the charge is from
Texas Pattern Jury Charge 115.8 and then proceed to discuss comment 1 to the
instruction:

That the Pattern Jury Charge committee believed this language required
the defendant to show that the damages were increased as a result of the
plaintiff’s action or inaction after the damages were inflicted is made
clear by the comments to the instruction. According to the Committee,
the instruction is used when “the evidence raises a question about the
plaintiff’s failure to mitigate damages after the defendant’s actionable
conduct” and requires that the “defendant must offer evidence showing
not just the plaintiff’s lack of care but also the amount by which the
damages were increased by such failure to mitigate.” [State Bar of Tex.,
Texas Pattern Jury Charges: Business, Consumer, Insurance & Employment PJC
115.8 cmt. 1 (2018).] In other words, the Committee believes that this
language requires the evidence to satisfy the conditions of Texas law
regarding mitigation of damages, as outlined by [Appellants] in [their]
Appellants’ Brief and which [Velu] agrees is “a correct statement of the
law.”

18
 Here, examining the sufficiency of the evidence in light of the charge as given,

the jury was free to choose which amounts from the chart to include in its damages

award. The jury was also required to follow the mitigation instruction and to exclude

any amount that Appellants could have avoided by the exercise of reasonable care.

Based on these instructions, the jury found damages of $130,100, which represents

the total of the amounts taken by Velu in 2009 ($73,000) and in 2010 ($57,100).

Essentially, [Velu] urges this Court to repudiate the Pattern Jury
Charge Committee’s work and declare that this instruction does not
properly capture Texas law but instead allows for the reduction of
damages for any reasons whatsoever. This instruction was not meant to
be and is not a blank check for the jury to simply reduce the damages to
be awarded to the plaintiff. [Velu] argues that the charge allows the jury
to reduce the damages based on the theory that it could have found that
[Appellants] should have discovered [Velu’s] misconduct before it actually
did. This is not evidence of the failure to mitigate damages, as [Velu]
effectively concedes, is not what this instruction allows, and is not what
this [c]ourt should interpret the Pattern Jury Charge instruction to allow.

Appellants thus attempt to distinguish between pre-actionable versus post-
actionable conduct and argue that the mitigation instruction was not applicable to the
damages here. But as pointed out above, Comment 1 specifically states, “If the
evidence raises a question about the plaintiff’s failure to mitigate damages after the
defendant’s actionable conduct, an instruction on mitigation should be included with
the damages question.” Id. (emphasis added). It does not limit the instruction to a
failure to mitigate after discovery of the actionable conduct. Based on the arguments
that Appellants raise on appeal, they should have objected during the charge
conference in the trial court that the mitigation instruction was not properly limited in
time, but they did not do that. Instead, without raising any objection, Appellants let
the unlimited mitigation instruction remain in the charge. As we concluded above, it
is Appellants’ failure to object that prevents us from looking behind the charge that
was given.

19
 The jury implicitly determined that after repeated requests of Velu to provide

the financials and no forthcoming reports, Samy should not have waited more than

two years to obtain the financial information from other sources. The testimony at

trial confirmed that the stolen funds could have been identified if Samy had requested

the bank statements from PointBank or had accessed the statements or the canceled

checks online. Moreover, it was Samy’s job as a co-manager to maintain the assets of

the company in good order, and he could not maintain the funds in the bank account

without reviewing the financial documents. Instead, he asked Velu quarterly for

financial statements for six years, received nothing, and took no further action despite

having direct access to the bank account, the accountant, and the property-

management company.

Appellants argue that because they did not learn of the theft until the summer

of 2015 and immediately took steps to remove Velu from control of its finances, there

is no evidence that anything Appellants did constituted a lack of reasonable care. But

“[t]he mitigation standard is that of ordinary care—what an ordinary prudent person

would do in the same or similar circumstances.” See Pulaski Bank & Tr. Co. v. Tex.

Am. Bank/Fort Worth, N.A., 759 S.W.2d 723, 736 (Tex. App.—Dallas 1988, writ

denied). Here, more than a scintilla of evidence supports that an ordinary prudent

person acting as a co-manager with specific duties under the Company Agreement

would not have waited more than two years to seek financial information from the

LLC’s bank, accountant, or property-management company when no financial

20
information was being supplied after repeated requests to the other co-manager. See

id. (“It takes no special expertise to discern that it was unwise to allow Lab

Management to continue to withdraw money that did not belong to it.”).

Based on the testimony and evidence presented, we conclude that the jury’s

determination—that Appellants should not recoup more than $130,100 (the total of

the amounts taken by Velu in 2009 and 2010) because they failed to exercise

reasonable care—is supported by more than a scintilla of evidence. See Cont’l Coffee

Prods., 937 S.W.2d at 450; Leitch, 935 S.W.2d at 118; see also Pulaski Bank & Tr. Co., 759

S.W.2d at 736 (holding that bank could not recover the funds attributable to its failure

to mitigate). And having concluded that the evidence is sufficient to support the

jury’s damage award, we hold that the trial court did not err by leaving the jury’s

damage award unchanged. Cf. Mundheim v. Lepp, No. 05-19-01490-CV, 2021 WL

1921122, at *7 (Tex. App.—Dallas May 13, 2021, pet. filed) (mem. op.) (“Having

found the evidence sufficient to support the complained-of jury findings, we conclude

[that] the trial court did not err [by] denying the [appellants’] motion for judgment

notwithstanding the verdict and motion for new trial.”). We overrule Appellants’ first

issue.

IV. Attorneys’ Fees Awarded by the Trial Court

In their third issue, Appellants argue that the amount of attorneys’ fees

awarded by the trial court “was improper and ought to be corrected” by this court.

Appellants challenge the legal and factual sufficiency of the trial court’s award of trial

21
attorneys’ fees in the amount of $52,040—which was calculated by applying the

contracted-for 40% contingency fee to the jury’s damages award of $130,100—and

the trial court’s failure to award any appellate attorneys’ fees. As discussed below, the

trial court’s findings of fact demonstrate that it did not follow the lodestar method of

calculating trial attorneys’ fees but relied solely on the contingency-fee arrangement,

which was error. Additionally, the trial court abused its discretion by not awarding

appellate attorneys’ fees because case law mandates that if an award of trial attorneys’

fees is mandatory under an authorizing statute, then an award of appellate attorneys’

fees is likewise mandatory if proof of reasonable fees is presented. See Ventling v.

Johnson, 466 S.W.3d 143, 154 (Tex. 2015).

A. Standard of Review

We review a trial court’s award of attorneys’ fees for an abuse of discretion. El

Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex. 2012). A trial court abuses that

discretion if it acts arbitrarily, unreasonably, or without regard to guiding legal

principles, or if its decision is not supported by legally or factually sufficient evidence.

See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); see also Beaumont Bank, N.A. v.

Buller, 806 S.W.2d 223, 226 (Tex. 1991) (explaining that legal and factual sufficiency of

the evidence are relevant factors in determining whether the trial court abused its

discretion).

22
 B. Applicable Law

The Texas Supreme Court laid out the framework for determining attorneys’

fees in Rohrmoos Venture v. UTSW DVA Healthcare, LLP:

[T]he lodestar method as we presented it in El Apple applies for
determining the reasonableness and necessity of attorney’s fees in a fee-
shifting situation:

Under the lodestar method, the determination of what
constitutes a reasonable attorney’s fee involves two steps.
First, the [factfinder] must determine the reasonable hours
spent by counsel in the case and a reasonable hourly rate
for such work. The [factfinder] then multiplies the number
of such hours by the applicable rate, the product of which
is the base fee or lodestar. The [factfinder] may then adjust
the base lodestar up or down (apply a multiplier), if relevant
factors indicate an adjustment is necessary to reach a
reasonable fee in the case.

370 S.W.3d at 760 (citations omitted). Thus, the fact[]finder must first
determine a base lodestar figure based on reasonable hours worked
multiplied by a reasonable hourly rate. Id. In a jury trial, the jury should
be instructed that the base lodestar figure is presumed to represent
reasonable and necessary attorney’s fees, but other considerations may
justify an enhancement or reduction to the base lodestar; accordingly,
the fact[]finder must then determine whether evidence of those
considerations overcomes the presumption and necessitates an
adjustment to reach a reasonable fee. Id. at 765; see also Perdue[ v. Kenny
A. ex rel. Winn], 559 U.S. [542,] 558–59, 130 S. Ct. [1662, 1676–77
(2010)] (suggesting that adequate appellate review is only feasible when
the fact[]finder makes reasonably specific findings as to each step of the
fee determination). Arthur Andersen lists relevant considerations that may
justify an adjustment, but . . . considerations already incorporated into
the base calculation may not be applied to rebut the presumption that
the base calculation reflects reasonable and necessary attorney’s fees. See
Arthur Andersen[ & Co. v. Perry Equip. Corp.], 945 S.W.2d [812,] 818 [(Tex.
1997)]; cf. Perdue, 559 U.S. at 553, 130 S. Ct. [at 1673]; [City of] Burlington[
v. Dague], 505 U.S. [557,] 562–63, 112 S. Ct. 2638[, 2641 (1992)]; Blum[ v.
Stenson], 465 U.S. [886,] 898–900, 104 S. Ct. 1541[, 1548–50 (1984)].

23
 General, conclusory testimony devoid of any real substance will not
support a fee award. Thus, a claimant seeking an award of attorney’s
fees must prove the attorney’s reasonable hours worked and reasonable
rate by presenting sufficient evidence to support the fee award sought.
See Long[ v. Griffin], 442 S.W.3d [253,] 255–56 [(Tex. 2014)]; [City of Laredo
v.] Montano, 414 S.W.3d [731,] 736–37 [(Tex. 2013)]; El Apple, 370
S.W.3d at 763–64. Sufficient evidence includes, at a minimum, evidence
of (1) particular services performed, (2) who performed those services,
(3) approximately when the services were performed, (4) the reasonable
amount of time required to perform the services, and (5) the reasonable
hourly rate for each person performing such services. See El Apple, 370
S.W.3d at 762–63.

578 S.W.3d 469, 501–02 (Tex. 2019).

C. Evidence Presented

Appellants’ attorney, Mike Yanof, testified that he had twenty-two years of

experience as a trial and appellate specialist and that he was a partner with the

Lenahan Law Firm. Yanof explained that he was hired in this case because the

originating attorney was not a trial specialist and wanted him to take over the case as

there were pending Rule 91a motions seeking dismissal of the case. See Tex. R. Civ. P.

91a. He said that Appellants’ goal was to be made whole and that they wanted their

attorneys to determine how much Velu had taken because they had no idea of the

amount as the numbers of how much had been taken differed widely. Yanof testified

that the total of the funds taken was in dispute until the Sunday night before trial and

that, although it was very difficult to put the pieces of the puzzle together, the amount

in controversy was ultimately determined to be $232,000.

24
 Yanof testified that his hourly rate of $575 was a reasonable rate that is

customarily and routinely charged in the DFW area. He said that he had seen rates of

$450 to $800 per hour for twenty-year attorneys. Yanof stated that he was not asking

for an upward departure from the actual time spent on the case, which was billed in

0.1 increments, times $575 per hour. Yanof testified that the case was handled on a

contingency-fee contract but that he had not factored that into the fees sought.

A ledger reflecting attorneys’ fees based on the time spent on various tasks—

without regard to the contingency-fee agreement—was admitted into evidence. 9 The

hours are not totaled on the exhibit, but our summation of the hourly entries reveals

that 588.4 hours were spent.10 Multiplying the 588.4 hours by the hourly rate of $575

results in $338,330 for total attorneys’ fees through the date of the bench trial. Yanof

testified that the time spent for each of the tasks listed on the exhibit represented

reasonable and necessary hours and fees for the case.

When asked whether he had segregated fees in the billing, Yanof testified,

I did. Well, let me clarify. I segregated fees for liability. There were
different claims in this case and individual causes of action, and the
discrete tasks that I did for the individual causes of action when I took

9
The exhibit was admitted over the following responses from Velu’s attorney:
“I have objections to the sufficiency of the evidence to support the attorneys’ fees,
but not to . . . that[;] that is a true and correct chart of the fees that they have
calculated,” and “on the attorneys’ fees, I have several arguments[,] . . . but those, I
think, are objections to the evidence, not to the exhibits.”
10
Yanof testified that the only estimates on the chart were for the bench trial
held on October 23, 2019, but he explained that based on how long the hearing had
lasted, he had underestimated those amounts.

25
 over the case and particularly when I amended the petition, the research
I did for the fraud, breach of fiduciary duty, and conversion claims, I
segregated those fees out and at times I just did not bill them at all. But
for amending the petition and for the initial research, I noted that I was
exempting those out of the fees in [the fees exhibit].

When it came to damages, I did not segregate fees because there
[was] one set of damages. They were intertwined. All of the damages
were intertwined regardless of the claims. That’s evidenced by the fact
that there was ultimately a single damage question submitted to the jury,
and it was not tied to particular claims. And we never had a damage
model that was separate for different claims.

And so the damages were inextricably intertwined, . . . and they
could not be separated out.

He explained that getting paid for this case would be difficult because, “for

starters, it’s a contingency[-]fee case tied to collecting the judgment.” Yanof said that

what “makes it a little more unique is that there’s serious collectibility issues.” He said

that he had information that there may be funds to collect the judgment but that it

might take going to India to collect the assets.11

Yanof testified that he had given Appellants value based on “[f]irst and

foremost, the result.” He explained that after taking over the case while Rule 91a

motions to dismiss were pending, he positioned the case to obtain a summary

judgment on the theft, conversion, and breach-of-contract claims and ensured that he

would recover attorneys’ fees. Yanof also made sure that the firm had only twenty-

When Yanof retook the stand during rebuttal, Velu’s attorney questioned him
11

on the collectibility of the judgment. Yanof testified that he understood that he could
get a charging order on Velu’s interest in the LLC and that he knew that Velu had
“stuff of value.”

26
plus-year attorneys working on the case because associates tend to bill for excessive

research, while two twenty-plus-year partners did “what [was] absolutely essential on

the case to position it to place [their] clients in the best position.” Yanof opined that

his firm had obtained “a very good result” for Appellants and had obtained hundreds

of pages of records, “many of which [were from accounts that] Velu [had] not

agree[d] in his deposition . . . were his bank accounts.”

When asked whether taking this case precluded him from taking other work,

Yanof said, “It potentially did.” He then explained that he serves as the “med-mal go-

to person” in the firm and that he had turned down a number of med-mal cases while

working on this case because “it was not realistic to take any med-mal case that would

need to be filed in the next five months” due to the time that it takes to prescreen and

obtain experts to review that type of case. Additionally, Yanof said that all other cases

stood still while he was working on this case and that this case kept him from moving

the firm’s other cases.

When asked about the nature, length, and professional relationship with

Appellants, Yanof stated this is a one-time lawsuit. As a result, Yanof said that there

is no expectation that Appellants will have other litigation, so there was no discounted

fee as there is when dealing with a volume client or an institutional client that

provides him with “lots of work.”

Yanof was also asked about his experience with appellate matters. Yanof

cataloged his experience in handling appeals for twenty years at the various levels,

27
including the Texas Supreme Court and various circuit courts. Yanof opined that

$575 per hour is a reasonable rate for appellate work “here”—in this area. Yanof

estimated that an appeal to the Second Court of Appeals would take 50 hours12 at

$575 per hour for a total of $28,750. Yanof estimated that filing a petition for review

in the Texas Supreme Court would take 30 hours13 at $575 per hour for a total of

$17,250. Yanof estimated that filing a brief on the merits in the Texas Supreme Court

would take 80 hours14 at $575 per hour for a total of $46,000.

Velu’s attorney, Samuel B. Burke, cross-examined Yanof. Yanof confirmed

that Appellants had contracted for a 40% contingency-fee agreement, so 40% is all

that Appellants are obligated to pay his firm. When asked what percentage of the trial

preparation was necessary because of the fraud and exemplary-damages claims, Yanof

testified that he did not attribute any time to those causes of action because the trial

came down to damages, and the damages were the same for every cause of action.

12
Yanof broke down the 50 hours as follows: 10 hours to designate portions of
the record and review the entire record, including the jury trial; 25 hours to research
issues to be raised in the briefs and to draft any reply; 10 hours to prepare for oral
argument; and 5 hours to travel and to give the oral argument.
13
Yanof broke down the 30 hours as follows: 5 hours to research for the
petition for review and 20 hours to draft the response to the petition for review, but
he did not account for the remaining 5 hours.
14
Yanof broke down the 80 hours as follows: 10 hours to research; 30 hours to
draft the brief; 30 hours to prepare for oral argument; and 10 hours to travel and to
give the oral argument.

28
 Burke offered rebuttal testimony on the issue of Appellants’ attorneys’ fees.

Burke, who had been licensed for 21 years, testified that a reasonable rate in this case

in this locality is between $400 and $450 and that a rate of $575 is excessive and is not

consistent with the market.

Burke stated that the initial disclosure that was served on March 31, 2017,

sought $216,298.44 in damages. Burke testified that the case was mediated in August

and that approximately 500 hours of attorney time had been spent on the case since

the mediation. The net result of that work was an increase in damages from $216,000

to $232,000. Burke opined, “That’s not reasonable[,] and it’s not necessary.”

Burke further critiqued the type of work that the attorneys had performed.

Burke pointed out that Appellants used attorneys with an hourly rate of $575 to go

through canceled checks and calculate the amount that Velu had stolen.

Burke mentioned the contingency-fee agreement and said that if Appellants

had not had a contingency-fee agreement and had instead been paying $575 per hour,

“they wouldn’t have had their $575-an-hour lawyer counting checks. They’d have

done it a different way, and you wouldn’t have this excessive legal bill here.” Burke

suggested to the trial court,

If you simply want to compensate [Appellants] for what they were out --
in other words, what it cost them to get here -- it’s $52,000, and they are
saying a reasonable and necessary fee is $338,000. In my experience,
that’s not true and it’s not reasonable and necessary[] and it’s certainly
not in Denton County in a case like this.

29
Burke further testified that a reasonable and necessary fee in this case is “somewhere

between $22,000, which is about what had been incurred up to the point of

mediation, and $52,000, which is what these people actually will owe Mr. Yanof based

on his 40 percent contingency fee.”

D. Trial Court’s Findings and Conclusions on Attorneys’ Fees

The trial court made the following findings of fact and conclusions of law

related to attorneys’ fees:

6. The [c]ourt finds that a significant portion of the attorneys’ fees
sought by [Appellants] were excessive and that a significant part of the
work performed by [Appellants’] counsel was not reasonable or
necessary.

7. The [c]ourt finds that for significant portions of the work
performed by [Appellants’] counsel $575.00 per hour was not a
reasonable hourly rate.

8. The [c]ourt finds the reasonable amount necessary to
compensate [Appellants] for the fees actually incurred was $52,040.00.[15]

9. The [c]ourt finds the total hourly fees requested by
[Appellants] were unreasonable and excessive given the nature of the
claim and the size of the recovery.

15
The final judgment states how the amount of trial attorneys’ fees was
calculated:

Accordingly, after the jury trial concluded, [Appellants] and [Velu]
appeared before the [c]ourt and presented evidence, authorities, and
arguments regarding the award of attorneys’ fees to [Appellants], . . . and
the [c]ourt having consider[ed] same and the pleadings and records on
file in this [lawsuit] found that [Appellants] should be awarded their
attorneys’ fees in the amount of $52,040.00 (40% of the jury verdict of
$130,100.00)[.]

30
 CONCLUSIONS OF LAW

....

5. The fees requested by [Appellants] in excess of $52,040.00 were not
reasonable or necessary[] and were excessive.

E. Analysis of Award of Trial Attorneys’ Fees

As set forth above, Appellants presented evidence that two attorneys who

charged $575 per hour had spent 588.4 hours working on the case, for a total of

$338,330 in trial attorneys’ fees. The chart that they presented contains evidence of

(1) the particular services performed, (2) who performed the services, (3) when the

services were performed, and (4) the time required to perform the services. Yanof

testified to the reasonableness of the hourly rate and the time spent on the case.

Burke challenged the reasonableness of the hourly rate, stating that it was significantly

higher than the usual $400 to $450 that was reasonable for similar attorneys in the

area, and challenging whether it was necessary to use partner-level attorneys to go

through checks and bank statements to determine how much Velu had stolen from

Appellants. The evidence presented thus informed the trial court of the time spent on

specific tasks and enabled the trial court to meaningfully review the requested fees.

The trial court’s findings of fact demonstrate that the trial court found

Appellants’ trial attorneys’ $575 hourly rate to be unreasonable for “significant

portions of the work [that they] performed.” The trial court’s findings, however, do

not demonstrate that the trial court determined what a reasonable rate should be for

31
such work. Instead, the trial court, as reflected in the final judgment, chose to

calculate Appellants’ trial attorneys’ fees based solely on the contingency-fee

agreement of 40% of the damages awarded by the jury. The award of trial attorneys’

fees based on this calculation cannot stand.

As set forth in Rohrmoos, the factfinder must first perform a lodestar calculation

based on reasonable hours worked multiplied by a reasonable hourly rate. 578 S.W.3d

at 501. We have no indication that the trial court determined the reasonable hours

worked or a reasonable hourly rate. The trial court instead skipped this step and

relied solely on the contingency-fee agreement. A contingency-fee agreement,

however, is only one factor that is considered when calculating the lodestar and

cannot be the only factor used to determine attorneys’ fees. See Arthur Andersen, 945

S.W.2d at 818–19 (holding that although “[a] contingent fee may indeed be a

reasonable fee from the standpoint of the parties to the contract,” it is not “in and of

itself reasonable for purposes of shifting that fee to the defendant”); State Office of Risk

Mgmt. v. Olivas, 509 S.W.3d 499, 508 (Tex. App.—El Paso 2016, no pet.) (stating that a

contingency-fee agreement is a factor for a court to consider in making a fee award,

but it cannot be the only factor).

Even if we presume that the trial court made a base lodestar calculation, the

trial court was not allowed under the second step of the lodestar method to reduce

the calculation based on the contingency-fee agreement. See Rohrmoos, 578 S.W.3d at

501 (stating that the Arthur Andersen considerations, such as the existence of a

32
contingency-fee agreement, already incorporated into the base calculation may not be

applied to rebut the presumption that the base calculation reflects reasonable and

necessary attorneys’ fees); cf. City of Burlington, 505 U.S. at 562–63, 566–67, 112 S. Ct.

at 2641, 2643–44 (disallowing an enhancement for contingency-fee agreement because it

would likely duplicate in substantial part considerations already subsumed in the base

lodestar calculation, as “[t]he risk of loss in a particular case (and, therefore, the

attorney’s contingent risk) . . . is ordinarily reflected in the lodestar—either in the

higher number of hours expended to overcome the difficulty, or in the higher hourly

rate of the attorney skilled and experienced enough to do so”).

Based on the evidence presented, Appellants may not have been entitled to

recover all of their requested attorneys’ fees, but they were statutorily entitled to their

reasonable attorneys’ fees incurred. See generally Tex. Civ. Prac. & Rem. Code Ann.

§§ 38.001(b)(8) (permitting award of attorneys’ fees for successful breach-of-contract

claim), 134.005 (permitting award of attorneys’ fees for successful claim under the

Texas Theft Liability Act). We conclude that the trial court’s award of trial attorneys’

fees based solely on the contingency-fee agreement is without reference to the guiding

principles set forth in Rohrmoos and is legally insufficient. See 578 S.W.3d at 501. We

therefore hold that the trial court abused its discretion by awarding trial attorneys’ fees

of $52,040. Accordingly, we sustain the portion of Appellants’ third issue challenging

the amount of trial attorneys’ fees.

33
 F. Analysis of Award of No Appellate Attorneys’ Fees

Appellants also argue within their third issue that the trial court’s failure to

award them appellate attorneys’ fees is both legally and factually insufficient. Velu’s

brief does not respond to Appellants’ argument regarding appellate attorneys’ fees.

When, as here, trial attorneys’ fees are mandatory under a statute, then appellate

attorneys’ fees are also mandatory when proof of reasonable fees is presented. See

Ventling, 466 S.W.3d at 154. Here, Appellants provided opinion testimony about the

services that they reasonably believed would be necessary to defend the appeal and

the hourly rate for those services. Even if the trial court determined that the hourly

rate of $575 was not reasonable, the trial court had no discretion to determine that

Appellants were not entitled to any conditional appellate attorneys’ fees. Because the

trial court’s failure to award appellate attorneys’ fees is without reference to the

guiding principles set out in Ventling, we hold that the trial court abused its discretion

by failing to award Appellants their appellate attorneys’ fees. See DaimlerChrysler Motors

Co. v. Manuel, 362 S.W.3d 160, 198–99 (Tex. App.—Fort Worth 2012, no pet.)

(remanding case for a new trial concerning the amount of reasonable and necessary

appellate attorney’s fees because the trial court had awarded none despite such fees

being mandatory under Section 38.001). We therefore sustain the remaining portion

of Appellants’ third issue challenging the trial court’s failure to award appellate

attorneys’ fees.

34
 V. Zero Prejudgment Interest Awarded by the Trial Court

In their fourth issue, Appellants argue that the trial court abused its discretion

by failing to award prejudgment interest. As explained below, any prejudgment

interest award in this suit could only be based on general principles of equity,

according to which the trial court did not abuse its discretion by denying prejudgment

interest under the facts presented.

A. Law on Prejudgment Interest

This court has previously summarized the law on prejudgment interest:

An award of prejudgment interest advances two ends: 1) achieving full
compensation to plaintiffs; and 2) expediting both settlements and trials.
The two legal sources for a prejudgment interest award are 1) general
principles of equity, and 2) an enabling statute. The enabling statute,
Texas Finance Code [S]ection 304.104, only applies to wrongful death,
personal injury, and property damage cases. Where no statute controls
the award of prejudgment interest, the decision to award prejudgment
interest is left to the sound discretion of the trial court, which should
rely upon equitable principles and public policy in making this decision.

Citizens Nat’l Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 486–87 (Tex. App.—Fort

Worth 2004, no pet.) (op. on reh’g) (footnotes omitted).

B. Applicable Findings of Fact and Conclusions of Law

The trial court made the following finding of fact and conclusions of law

related to prejudgment interest:

5. Further, the [c]ourt finds an offer of settlement was tendered by
[Velu] exceeding the amount of the judgment before the [suit] began.

....

35
 CONCLUSIONS OF LAW

....

3. Prejudgment interest is “compensation allowed by law as
additional damages for lost use of the money due as damages during the
lapse of time between the accrual of the claim and the date of
judgment.” Cavnar v. Quality-Control Parking, Inc., 696 S.W.2d 549, 552
(Tex. 1985) (citing McCormick, Damages § 50 (1935)).

4. No pre[]judgment interest is recoverable by [Appellants].

C. Evidence Regarding Settlement Offer

The record reflects that on April 7, 2016, Appellants demanded that Velu and

Selvi pay $206,500 within 10 days after receiving the demand letter. On May 12, 2016,

Velu and Selvi made an offer of settlement. In the letter that Velu’s counsel sent to

Appellants’ then-attorney, Velu and Selvi asked Appellants’ members to agree to

accept (1) a transfer of Velu’s and Selvi’s membership interests in the two entities

(stating that the “book value” of their interests was $110,000); (2) the payment that

they previously made in the amount of $25,000; and (3) an additional payment in the

amount of $14,000. The settlement offer further states, “If this offer is acceptable,

please provide direction regarding to whom [Velu’s] and Selvi[’s] membership

interests should be assigned and to whom the additional $14,000.00 payment should

be made.” Thus, the total amount of the settlement offer (calculated using the book

value stated in the letter) was $149,000. The offer was not accepted.

At the outset of the bench trial, the trial court agreed to take judicial notice of

the jury trial and to consider all the previously admitted evidence. During the jury

36
trial, Samy had testified that Velu and Selvi each owned a 5.5% interest (or 11% total)

in Appellants. The Company Agreement calls for a member’s interest to be

determined as follows:

14.07 Determination of Fair Value. The “Fair Value” of a
Membership Interest shall be the amount that would be distributable to
the Member holding such interest in the event that the assets of the
Company were sold for cash and the proceeds, net of liabilities, were
distributed to the holders of all Membership Interests pursuant to this
Agreement. In the event that the Fair Value of a Membership Interest is
to be determined under this Agreement, the Members shall select a
qualified independent appraiser to make such determination, and the
Members shall make the books and records available to the appraiser for
such purpose. The determination of Fair Value made by such appraiser
shall be final, conclusive, and binding on the Company, all Members,
and all Assignees of a Membership Interest.

Velu’s counsel questioned Samy about valuing a member’s interest and

referenced the Company Agreement:

[By Defense Counsel:] So, generally speaking, Article 14 deals with buy-
out of [a] membership interest, correct?

A. Correct.

Q. And it deals with several different scenarios, death of a
member, bankruptcy of a member, insufficient surplus, other members’
options to purchase, and then it has Sections 14.06, 14.07, and 14.08,
which deal with an exercise of an option to purchase. Do you see that?

A. Yes, I see it.

Q. Okay. And Section 14.07 deals with how we’re going to value
a member’s interest, correct?

A. Correct.

37
 Q. Okay. And it has a definition of fair value. It says[, “]The fair
value of a membership interest shall be [the] amount that would be
distributed to the member holding such interest in the event that the
assets of the company were sold for cash and the proceeds net of
liabilities were distributed to the holders of all membership interests
pursuant to this agreement.[”]

Have I read that correctly?

A. Yes.

....

Q. Well, so you knew in 2015 that Velu had taken money in
breach of the [C]ompany [A]greement, correct?

A. Correct.

Q. Okay. And there were actually some discussions about
applying his membership interest to the debt, correct?

A. There may have been.

Q. Okay. And so those conversations should have referenced
the [C]ompany [A]greement and followed those provisions. Do you
agree with that?

A. No. We rejected his claim about submitting his shares
because we are focused on getting the money back that he has taken.
We never admitted about using his shares.

Q. You have refused to use this procedure?

A. No. We are focused on getting the money he has taken.

Q. Okay. So in . . . the summer of 2015, what were the value of
the company assets?

A. That requires an appraisal, so . . . I don’t know.

Q. Did you request an appraisal?

38
 A. We did not.
....

Q. Do you have any idea how much an appraisal in 2015 would
have cost the company?

A. I don’t know.

Q. Have you investigated that at all?

A. We never thought about appraising.

Velu put on valuation evidence through Greg Johnson—a commercial real

estate broker, a real estate developer, and an investor. Johnson testified that he was

qualified to value the property owned by Appellants. For the building owned by

Appellants, Johnson reviewed the rent roll, analyzed the tenant types, and performed

a calculation using the net operating income of $175,000 and a 7% cap rate 16 to come

up with a purchase price of $2.5 million. To make sure that the $2.5 million was a

realistic number of “what the market would have paid,” Johnson reviewed actual sales

16
Johnson explained the cap rate as follows:

[I]n the real estate world, we shorten that to cap rate. It’s actually
capitalization rate. Essentially, what that means is if you paid cash for
the property, that’s what your return on investment would be every . . .
year.

So, for example, a 7 percent cap rate -- there’s a mathematical
formula to determine what’s the value of the property. You take the net
income and you divide that by 7 percent, and that will give you the value
of what you could pay for it. If you paid cash, that would mean you
would get 7 percent return on your money every year that the rent stayed
the same.

39
and noted that the cap rates ranged “from 6.4ish up into the mid 8’s.” After looking

at comparable sales, Johnson testified that the sales price “would have been a little

north of the $2.5 million.” Johnson said, “I felt like if somebody said, [‘]Can you sell

this building for $2.5 million,[’] I’d put my name on it and say, [‘]Yes.[’]”

The evidence during the jury trial also showed that Appellants’ sole debt was

the loan from PointBank for the mortgage on the building. A chart was admitted into

evidence showing that the outstanding amount on the loan around the time of Velu’s

settlement offer was $1,145,181.25. 17

Using the sales price determined by Johnson and the outstanding amount on

the loan as shown on the loan chart, Velu’s attorney in his appellate brief calculated

Velu’s and Selvi’s membership interest as follows:

$2,500,000.00 Value of the property if sold for cash
($1,145,181.00) Less mortgage on the property
$1,354,819.00 Value of asset net of liability that could be distributed
x .11 Velu and Selvi’s interest as a percentage
$ 149,030.09 Value of Velu and Selvi’s joint membership interest

During the bench trial, Velu’s attorney argued, “The uncontradicted evidence at

trial was that the value of that interest was $146,000[,18 which is] an amount in excess

of what the jury awarded.” He explained that this differs from the book-value offer,

Velu’s brief uses the amount remaining as of May 31, 2016, instead of the
17

amount remaining as of May 2, 2016, which was closer in time to the date of the offer.
The May 2, 2016 amount was $1,148,839.36 and would have valued Velu and Selvi’s
joint membership interest at $148,627.67.

It is not clear why Velu’s attorney used $146,000 instead of $149,000.
18

40
but “if you take the equity, the fair value, then the value of that interest was $146,000.

It’s the equity in the real property plus the $14,000 in the bank account times 11

percent, $146,000.” In addition to Velu’s and Selvi’s membership interests, their

settlement offer also included the $25,000 that they had previously paid and an

additional $14,000, thus bringing the settlement offer to over $188,000.

D. Analysis

Here, Appellants agree that there is no statute allowing for the recovery of

prejudgment interest for the claims on which they prevailed. Thus, the trial court was

permitted to rely on equitable principles and public policy in deciding whether to

award prejudgment interest.

In making the decision not to award prejudgment interest, the trial court heard

evidence on the various values placed on Velu’s and Selvi’s membership interests.

Because the Company Agreement specified that “fair value” was to be used in

calculating the value of a membership interest, the trial court could have determined

that Appellants had thwarted the process of determining the fair value by not

requesting an appraisal pursuant to the terms of the Company Agreement. The trial

court could have further determined that Velu’s May 2016 settlement offer—whether

using either the book value of the membership interests as stated in the offer of

settlement ($110,000) or the value of the membership interests calculated using the

sales price as determined by Johnson ($149,000) and the remaining loan balance from

the loan chart, plus applying the additional $25,000 prior payment and the $14,000

41
cash payment—exceeded the amount that the jury awarded Appellants for damages.

Either total—the $149,000 and the $188,000—constitute more than a scintilla of

evidence to support the trial court’s decision that it was equitable to deny

prejudgment interest because Appellants had rejected a settlement offer that exceeded

the $130,100 in damages awarded by the jury. See Hameed Agencies (pvt) Ltd. v. J.C.

Penney Purchasing Corp., No. 11-05-00140-CV, 2007 WL 431339, at *6–7 (Tex. App.—

Eastland Feb. 8, 2007, pet. denied) (mem. op.) (considering settlement offer that

exceeded appellant’s recovery in affirming trial court’s decision not to award

prejudgment interest in contract dispute).

Appellants rely on a case from this court to argue that there is no authority

authorizing the trial court to deprive them of equity-based prejudgment interest based

on their refusal to accept a settlement offer. See AMX Enters., L.L.P. v. Master Realty

Corp., 283 S.W.3d 506 (Tex. App.—Fort Worth 2009, no pet.) (op. on reh’g). The

prejudgment interest in AMX Enterprises, however, was awarded based on an enabling

statute—the Prompt Payment to Contractors Act. Because the case was decided

under an enabling statute—not general principles of equity—and did not discuss

whether settlement offers can be considered in determining whether to award

prejudgment interest according to equitable principles, AMX Enterprises is thus

distinguishable.19

Moreover, after AMX Enterprises, this court remanded a breach-of-contract
19

case for the trial court to recalculate the correct amount of prejudgment interest

42
 In their reply brief, Appellants argue for the first time that Velu’s offer to settle

the claim did not include “the actual production of funds to pay the amount due”

because Velu offered only an ownership interest; and as a result, “the alleged ‘offer’ is

not a ‘tender’ triggering this rule [preventing any prejudgment interest from

accruing].”20 An “appellant may file a reply brief addressing any matter in the

appellee’s brief,” see Tex. R. App. P. 38.3, but “[t]he Texas Rules of Appellate

Procedure do not allow an appellant to include in a reply brief a new issue in response

to some matter pointed out in the appellee’s briefs but not raised by the appellant’s

original brief.” Jennings v. Jennings, 625 S.W.3d 854, 868–69 (Tex. App.—San Antonio

2021, pet. filed); Dall. Cnty. v. Gonzales, 183 S.W.3d 94, 104 (Tex. App.—Dallas 2006,

pets. denied) (op. on reh’g). Appellants waived this contention by raising it for the

first time in their reply brief. See Pineridge Assocs., L.P. v. Ridgepine, LLC, 337 S.W.3d

461, 472 n.10 (Tex. App.—Fort Worth 2011, no pet.).

Having held that there is more than a scintilla of evidence to support the trial

court’s decision to award $0 prejudgment interest under these facts, we hold that the

“[b]ecause neither party ha[d] briefed what date should apply, and because appellants
claim that they are entitled to the tolling of the accrual of interest while a settlement
offer was open.” See Dall. Area Rapid Transit v. Agent Sys., Inc., No. 02-12-00517-CV,
2014 WL 6686331, at *16 (Tex. App.—Fort Worth Nov. 26, 2014, pet. denied) (mem.
op.).

Appellants appear to ignore that Velu’s settlement offer included a prior
20

payment of $25,000 and an offer to pay $14,000 in cash.

43
trial court did not abuse its discretion by denying prejudgment interest. We overrule

Appellants’ fourth issue.

VI. Zero Loss-of-Use Damages Awarded by the Trial Court

In their second issue, Appellants argue that the trial court erred by rejecting

their claim for compensatory damages for loss of use of the money taken by Velu and

that we should reverse and render judgment to include an award of those damages.

As discussed below, Appellants failed to conclusively establish that they had incurred

loss-of-use damages for allegedly not being able to prepay the mortgage.

A. Standard of Review

A trial court’s findings of fact have the same force and dignity as a jury’s

answers to jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.

1991). As with jury findings, a trial court’s fact-findings on disputed issues are not

conclusive, and, when the appellate record contains a reporter’s record, an appellant

may challenge those findings for evidentiary sufficiency. Catalina v. Blasdel, 881

S.W.2d 295, 297 (Tex. 1994); Super Ventures, Inc. v. Chaudhry, 501 S.W.3d 121, 126

(Tex. App.—Fort Worth 2016, no pet.). We review the sufficiency of the evidence

supporting challenged findings using the same standards that we apply to jury

findings. Catalina, 881 S.W.2d at 297.

Additionally,

[i]n a bench trial, the trial court is the factfinder and sole judge of the
credibility of the witnesses. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696
(Tex. 1986). “Accordingly, the trial court may consider all the facts and

44
 circumstances in connection with the testimony of each witness and
accept or reject all or part of that testimony.” Hailey v. Hailey, 176
S.W.3d 374, 383 (Tex. App.—Houston [1st Dist.] 2004, no pet.). The
trial court may believe one witness, disbelieve others, and resolve
inconsistencies in any testimony. McGalliard, 722 S.W.2d at 697. “An
appellate court may not substitute its judgment for the trial court’s
assessment of witnesses’ testimony in a bench trial.” Hailey, 176 S.W.3d
at 383.

12636 Rsch. Ltd. v. Indian Bros., Inc., No. 03-19-00078-CV, 2021 WL 417027, at *5

(Tex. App.—Austin Feb. 5, 2021, no pet.) (mem. op.).

B. Law on Omitted Findings

A recent case from the Austin Court of Appeals demonstrates how appellate

courts handle omitted, unrequested findings and their practical effect on the court’s

holding:

[W]hile [appellant] may have satisfied his burden with respect to the
elements of existence of and breach of the duty, it does not necessarily
follow that he is entitled to relief from that grievance. Texas law affords
an aggrieved individual several remedies for breach of fiduciary duty. . . .
In this case, as compensation for the breach of fiduciary duties,
[appellant] sought an additional $71,778.40 in damages. [Appellant]
derives this sum from evidence of monies Garcia obtained while
operating Active Euroworks and from his theory that “all of the profits
and payments would have been split between Garcia and [appellant]”
had Garcia not breached his fiduciary duty by opening and operating the
competing enterprise. However, the district court made no finding
regarding Garcia’s profits from the operation of Active Euroworks.
Moreover, [appellant] presumes that all of Garcia’s profits were made
while the two men were still partners, but the district court made no
finding regarding the date the partnership ended. Nor did either party
specifically request any findings regarding the alleged breach of fiduciary
duty or any profit Garcia might have made while operating Active
Euroworks. As an appellate court, we must assume that any omitted,
unrequested findings support the judgment. See Tex. R. Civ. P. 299;
Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989); Williams v. Milliger,

45
 352 S.W.2d 794, 795 (Tex. App. 1961, writ ref’d n.r.e.) (“It is implied in
support of the judgment that the court found against the defendant on
this issue since the court made no specific finding on such issue and
none was requested.”). In other words, we must infer that the district
court concluded: (1) that the fiduciary relationship had already ended
when Garcia began earning profits from Active Euroworks, (2) that
[appellant] was not harmed by Garcia’s operation of Active Euroworks,
or (3) that [appellant] simply failed to prove any damages incurred.

Dandachli v. Active Motorwerks, Inc., No. 03-19-00494-CV, 2021 WL 3118437, at *6

(Tex. App.—Austin July 23, 2021, no pet.) (mem. op.).

C. Law on Loss-of-Use Damages

No rigid rule applies when determining loss-of-use damages. Canyon Vista Prop.

Owners Ass’n, Inc. v. Laubach, No. 03-11-00404-CV, 2014 WL 411646, at *5 (Tex.

App.—Austin Jan. 31, 2014, no pet.) (mem. op.). Instead, factfinders must consider

the particular circumstances of the plaintiff and the facts of each case in assessing

loss-of-use damages. Id.

The Texas Supreme Court has set forth the following broad parameters on

loss-of-use damages:

As with all consequential damages, the availability of loss-of-use damages
is necessarily circumscribed by common[ ]sense rules. To begin with,
the damages claimed may not be “too remote.” This is not to say they
must be “the usual result of the wrong,” but they must be foreseeable
and directly traceable to the tortious act. The damages also must not be
speculative. Although mathematical exactness is not required, the
evidence offered must rise above the level of pure conjecture.
Moreover, the damages may not be awarded for an unreasonably long
period of lost use. Whether framed as a duty of mitigation or a doctrine
of avoidable consequences, the principle is the same: A plaintiff may not
recover loss-of-use damages for a period longer than that reasonably
needed to replace the personal property. That principle compels a

46
 plaintiff’s diligence in remedying his loss and deters an opportunistic
plaintiff from dilly-dallying at the expense of the defendant. After all,
the role of actual damages is to place the plaintiff in his rightful position,
not the position he wishes to acquire.

J&D Towing, LLC v. Am. Alt. Ins. Corp., 478 S.W.3d 649, 677 (Tex. 2016) (citations

omitted).

D. What the Record Shows

Appellants pleaded for loss-of-use damages as follows:

27. As a result of [Velu’s] breaches of the [c]ontracts, [Appellants] and
[their] other members suffered damages, including [Appellants’] losing
use of said funds to pay down the mortgage on the property, pay taxes,
and reduce the principal on the loan.

....

30. As a result of [Velu’s] conversion of the property,
[Appellants] lost the use of those monies for [their] business purposes,
including, but not limited to, paying down the mortgage on the property,
paying taxes, and reducing the principal on the loan so as to reduce
interest paid on the mortgage over time.

....

34. [Appellants have] sustained damages as a result [of Velu’s
theft], including loss of property[] and loss of use of property.

....

46. As a result of [Velu’s] breach of fiduciary duty, theft, and
fraud, and [Velu’s] breach of contract and conversion, [Appellants] and
[their] other members have suffered actual damages in the form of lost
income and revenues of at least $350,000, interest on lost use of this
amount, and other damages.

47
 During the jury trial, Sengottiyan testified that he believed the net revenue from

2009 to 2014 “was going towards paying off the loan” and that he trusted that Velu

was paying down the mortgage with net revenue; in other words, without using the

exact wording, it appears that Sengottiyan believed that they were prepaying the

mortgage. At the time of the jury trial, Appellants’ account had “roughly close to

$200,000.” Sengottiyan was asked on cross-examination what Appellants had done

with the money, and he said that a majority of members had voted “to pay the excess

amount towards the loan.” When asked what amount was applied to the loan and

when, Sengottiyan testified that he did not remember the exact details; he said, “I can

tell you we paid one time $50,000 and another time 35-some-thousand. I don’t

remember the exact numbers, but we can look at the accounts and tell you.” Upon

further questioning to pinpoint the timing of the payments, Sengottiyan testified, “I

think both of them were made either in 2017, I think.” On redirect, Sengottiyan

agreed that since 2015, during the time that he and Samy had been co-managers, “at

times, [they had] paid net revenues towards the mortgage to pay down the mortgage.”

The sole finding that the trial court made on this issue was that “the interest

[Appellants] sought to recover w[as] damages for the loss of the use of money.” The

trial court’s judgment does not award loss-of-use damages.

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 E. Analysis

In their opening brief, Appellants raise legal arguments to show that Texas

allows recovery of loss-of-use damages,21 that Appellants had a “right to this award of

damages,” and that neither the trial court nor Velu presented a viable basis for

denying Appellants an award of loss-of-use damages. They rely on their chart

showing an interest calculation 22 on the $130,100 damages found by the jury, but they

set forth no evidence to show that they conclusively proved during the bench trial

that the stolen money would have been used to pay down the mortgage. Instead,

Appellants state that they conclusively established their “right to this award of

damages” and then set forth the following two sentences:

Sengottiyan testified that during the time when [Velu] was the primary
managing member, the expectation was that the net revenues were being
used to reduce the loan on the building. Both Sengottiyan and [Samy]
testified that after Sengottiyan replaced [Velu] as co-managing member
of [Appellants], the use of accumulated revenue was discussed with
[Appellants’] members, and the funds were used to pay down the
principal of the mortgage[—]a claim born[e] out by the mortgage
account records. [Record references omitted.]

21
On appeal, Velu does not challenge that Texas recognizes loss-of-use
damages as a measure of damages for claims of theft and conversion. For purposes
of our analysis, we therefore assume that such damages were available to Appellants if
properly proven.
22
For disposition of this issue, we need not address the correctness of the
interest rates used, but we note that the various interest charts that Appellants
reference have different totals: Plaintiffs’ Exhibit 14 shows the total interest as
$73,535.38 (though adding the yearly interest column produces a total of $78,048.23),
while Plaintiff’s Exhibit – Hearing Ex. 1 shows the total interest as $78,045.

49
 Velu points out the following shortcomings in Appellants’ theory that the

stolen money would have been used to pay down the mortgage because Appellants

had made additional mortgage payments “at times” after Velu was removed as co-

manager:

No context was ever provided by [Appellants] for why any payments on
[their] mortgage “at times” were actually made and then comparing these
circumstances with those that existed during the relevant times at issue
in this lawsuit. Stated another way, [] Appellants failed to show that the
circumstances allegedly warranting payment “at times” on the mortgage
existed at any time when Velu is accused of any wrongdoing, thus
allegedly supporting the circumstantial inference that additional
payments would have been made as well. Indeed, there is no evidence
of the amount [Appellants] would have had in available cash had Velu
not taken the $130,100.00; no evidence of how many alleged payments
would have been made; how much each such alleged payment would
have been; or when each such alleged payment would have been made.
Myriad questions abound with regard to Appellants’ theory making it
nothing more than unsubstantiated innuendo. For example, how much
did [Appellants] have at all times? Did the amount exceed $200,000.00?
Even if [they] did, did [Appellants] have other debts that [they] needed
to pay with this money? Did [they] need to keep a cash reserve for any
secured loans to be sufficiently collateralized? What condition was the
economy in during the time in question? Was saving for contingencies
more important than paying off debt? Were there other opportunities
that would yield a greater investment return than retiring the subject
mortgage? [Appellants] failed to provide any context whatsoever to
prove the findings that were made were clearly wrong and unjust.

Another problem with [Appellants’] theory is that it is totally
dependent on the self-serving testimony of its current managers. . . .
[Appellants’] witnesses provided no documentary evidence that
supported their assertion that [Appellants] intended to use excess cash to
pay down [Appellants’] mortgage. Further, the general disinterest of
[Appellants’] co-manager, Samy, and [Appellants’] failure to use
reasonable care to avoid [their] injuries, undermines the testimony of
[Appellants’] managers that there was a plan to pay down the mortgage.
Additionally, undermining their credibility is the lack of clear recollection

50
 of the mortgage principal payments that [Appellants] made since Velu’s
removal. Finally, a fact[]finder could infer from the testimony at trial
that the mortgage payments made by [Appellants] were made not as part
of a preexisting plan but to bolster [Appellants’] claim for consequential
damages.

Appellants filed a reply brief attacking Velu’s arguments, describing them as

“newly-minted theories.” Without citing any authority, Appellants imply that Velu

was limited to raising the same arguments that he raised in the trial court because “[t]o

the extent they do anything, the [t]rial [c]ourt’s findings of fact and conclusions of law

(drafted by [Velu]) point to those theories [that he raised in the trial court].”

Appellants further contend that “[nowhere] in the factual findings does the [t]rial

[c]ourt criticize the evidence presented by [Appellants] as being insufficient to carry

[their] burden of proof on this issue.” Appellants, however, failed to seek additional

findings from the trial court on this issue. As an appellate court, we must assume that

any omitted, unrequested findings support the judgment, and we must assume from

the trial court’s decision to award $0 for loss-of-use damages that the trial court

determined that Appellants had failed to conclusively establish their burden on these

damages. See Tex. R. Civ. P. 299; Roberson, 768 S.W.2d at 281; Williams, 352 S.W.2d at

795.

Appellants also argue in their reply brief that this court cannot imply a finding

regarding the credibility of Appellants’ witnesses’ testimony. Yet, we must defer to

the trial court’s credibility determinations and cannot substitute our judgment for the

trial court’s assessment of witnesses’ testimony in a bench trial. See 12636 Rsch., 2021

51
WL 417027, at *5. Here, the trial court’s judgment awarding $0 for loss-of-use

damages implies that it did not find Appellants’ witnesses’ testimony credible; thus, we

defer to that decision on the credibility of Appellants’ witnesses’ testimony.

Appellants’ reply brief further contends that Velu urges this court to apply a

higher burden than Texas law requires by asserting that Appellants had to prove that

money taken by Velu would have been used to pay down the mortgage. Appellants

argue that they are required to establish their damages with “reasonable certainty,” not

mathematical precision, and that they need only show “a reasonably foreseeable use of

funds wrongfully” taken. Reasonable certainty, however, is not the question; the

question is one step removed: it is whether Appellants credibly proved that they had

incurred loss-of-use damages. Based on the limited testimony provided, which

amounted to mere conjecture, Appellants failed to conclusively establish that they had

incurred loss-of-use damages.

Within this same argument, Appellants contend that “[r]equiring proof that the

money would have been used in a certain way imposes an impossible burden on

[Appellants].” Appellants, however, were the ones who pleaded that they had “lost

the use of those monies for . . . business purposes, including, but not limited to,

paying down the mortgage on the property.” Moreover, the burden was not an

impossible one as the trial court could have believed Appellants’ witnesses’ testimony;

it simply chose not to.

52
 Appellants’ final reply is that “[Velu]’s claim that the proof consists solely of

‘self-serving’ testimony is incorrect.” Appellants point to bank records, arguing that

they show that funds in Appellants’ possession after Velu was removed from handling

money were used to prepay the mortgage debt. Such evidence of prepaying the

mortgage in 2016 and 2017, however, does not conclusively establish that Appellants

had any intention of prepaying the mortgage in 2009 to 2010—the initial years after

the LLCs were formed.

After reviewing the record under the required standard of review and analyzing

the arguments raised, we conclude that Appellants’ legal sufficiency challenge fails.

For Appellants to prevail on their claim for loss-of-use damages, they had the burden

to conclusively establish their entitlement to interest for the loss of use of the stolen

money. Appellants’ evidence on loss-of-use damages was not conclusive; the

testimony about after-the-fact uses of the money seven to eight years after the money

was stolen amounted to mere conjecture as to how any net revenue would have been

used in 2009 and 2010. Neither Samy nor Sengottiyan testified that there were general

meetings of the members during 2009 and 2010 in which they voted to pay down the

mortgage; the only testimony was that Sengottiyan “believed” that the net revenue

was being used to pay down the mortgage from 2009 to 2015.

Accordingly, we hold that Appellants failed to conclusively prove that they

suffered any loss-of-use damages, and thus the trial court did not err by determining

that Appellants should be awarded $0 for loss-of-use damages. Cf. Wiese v. Pro Am

53
Servs., Inc., 317 S.W.3d 857, 863–64 (Tex. App.—Houston [14th Dist.] 2010, no pet.)

(holding that there was no legally sufficient evidence proving appellee’s loss-of-use

damages where appellee failed to provide competent evidence that it was entitled to

recover loss-of-use damages consisting of lost profits); Automek, Inc. v. Orandy, 105

S.W.3d 60, 65 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (stating that “[w]ithout

any evidence, an award for damages for loss of use must be based upon conjecture

and is thus impermissible” and holding that the evidence was legally insufficient to

hold that appellee had suffered loss-of-use damages). We overrule Appellants’ second

issue.

VII. Breach-of-Fiduciary Ruling Not Explicit in Judgment

As mentioned above, at the conclusion of the evidence in the jury trial,

Appellants moved for a directed verdict on both the existence of a fiduciary duty

owed to Appellants by Velu and Velu’s breach of that duty. The trial court granted

the motion for directed verdict. After the final judgment was rendered, Appellants

filed a motion to correct the final judgment, requesting the trial court to “identify this

cause of action or ruling in the [f]inal [j]udgment,” but the trial court denied the

motion.

In their fifth issue, Appellants request this court to modify the final judgment

to reflect that the trial court granted a directed verdict in their favor on their breach-

of-fiduciary-duty claim. Concluding that there was no abuse of discretion, we decline

to do so. See Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 194 (Tex.

54
App.—Houston [14th Dist.] 2002, no pet.) (stating that the trial court’s interlocutory

ruling granting a directed verdict on the entire breach-of-fiduciary-duty claim merged

into the trial court’s final judgment). See generally Wagner v. Edlund, 229 S.W.3d 870,

879 (Tex. App.—Dallas 2007, pet. denied) (stating that appellate courts review the

denial of a motion to modify, correct, or reform a judgment for an abuse of

discretion). The record reflects that the jury charge sought to have the jury assess

damages solely for theft, conversion, and breach of contract; there was no question

asking the jury to assess damages related to the breach-of-fiduciary-duty claim, and

there were no objections to the charge. Thus, there was no damage award for the

breach of fiduciary duty. Accordingly, we overrule Appellants’ fifth issue.

VIII. Conclusion

Having sustained Appellants’ third issue because the trial court failed to follow

the steps set out in Rohrmoos for calculating trial attorneys’ fees and because the trial

court failed to award any appellate attorneys’ fees despite that Appellants were entitled

to an award of appellate attorneys’ fees, we reverse and remand for a new trial solely

on attorneys’ fees. Having overruled Appellants’ first, second, fourth, and fifth issues,

we affirm the remainder of the trial court’s judgment.

/s/ Dabney Bassel

Dabney Bassel
Justice

Delivered: November 4, 2021

55