NORTH TEXAS ORTHOPEDIC ASSOCIATES, ET AL., Appellants v. ROBERT JOHNSON, ET AL., Appellee s

Reversed and Rendered and Opinion filed October 17, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-01047-CV
............................
NORTH TEXAS ORTHOPEDIC ASSOCIATES, ET AL., Appellants
V.
ROBERT JOHNSON, ET AL., Appellee
s
 
 
.................................................................
On Appeal from the 116th District Court
Dallas County, Texas
Trial Court Cause No. 87-16008-F
.................................................................
O P I N I O N
Before Chief Justice Enoch and Justices Stephens FN:1 and Bissett FN:2
Opinion By Justice Bissett
        The questions presented in this appeal are whether the trial court judge erred in refusing to render judgment on the jury's verdict, and in substituting in the judgment his own findings for those of the jury. We answer those questions in the affirmative, and, accordingly, reverse the judgment of the trial court and render judgment in accordance with the jury's verdict.
        This case arose out of a dispute between North Texas Orthopedics Associates, Ralph Rashbaum, Stephen Hochschuler, Richard Guyer, and Texas Back Institute Physicians, P.A., plaintiffs in the trial court and appellants in this court, and Robert Johnson and Helen Campbell, defendants in the trial court and appellees in this court. Suit was instituted by plaintiffs to recover actual damages, punitive damages and attorneys' fees from the defendants when defendant Robert Johnson terminated his professional relationship with plaintiffs, who sought a recovery based on breach of contract, breach of fiduciary duty, unfair competition through wrongful use and disclosure of trade secrets, and wrongful interference with business relations and conversion.
        Plaintiffs Ralph Rashbaum, Stephen Hochschuler, Richard Guyer and defendant Robert Johnson are medical doctors; each was duly licensed and a practicing orthopedic surgeon in Dallas. Defendant Helen Campbell was a secretary, primarily to Dr. Johnson. All plaintiffs will be collectively referred to as the "Texas Back Institute," and the individual plaintiffs will be referred to either by name or as "plaintiff doctors." Dr. Johnson and Ms. Campbell will be referred to either by name or as "defendants."
        Dr. Johnson was employed by the plaintiff doctors under a written agreement effective August 1, 1984. The plaintiff doctors operated initially under the name of "North Texas Orthopedic Associates"; later the name was changed to "Texas Back Institute." Johnson worked for Texas Back Institute until November 30, 1987, when he and Helen Campbell, a secretary employed by Texas Back Institute, severed their employment with the Institute. After business hours on November 30, 1987, Johnson and Campbell secretly depleted their employer's computerized data and took from the RHD Medical Center, which was owned by Texas Back Institute and operated almost solely by Johnson, more than 800 patient files or charts and information forms and assignments of insurance benefits, and a number of surgical charge cards containing essential data for billing. They used those files, charts and information after they were employed by a nearby competitor. The patient files were files of the patients treated by Johnson at the Center from January 1, 1987, until November 30, 1987. Thereafter, Johnson solicited the business of those patients and sent bills to insurers seeking payment directly to him, and collected those payments, for surgical services he had rendered while employed by Texas Back Institute. As a result, Texas Back Institute closed its RHD Memorial Center, which, prior to November 30, 1987, had been operated by Johnson.
        In the summer of 1987, Johnson and the plaintiff doctors began discussing a new contractual relationship between and among themselves. Both Johnson and Texas Back Institute had benefitted economically from the employment relationship, FN:3 and the plaintiff doctors wanted to bring Johnson into their professional association on a par with themselves. Negotiations and discussions of the formalization of such relationship then ensued. Negotiations were substantially completed by October 1, 1987, when Texas Back Institute and Johnson signed an agreement referred to in the testimony as the "Deal Point Memorandum." It set out the basic terms of an affiliation agreement and contained representations that formal documents containing those basic terms would thereafter be signed. The plaintiff doctors continued to expect such an affiliation agreement to be signed in the near future, with Johnson then joining them as a fourth shareholder-employee of "Texas Back Institute Physicians, P.A." It was expected that the affiliation agreement would be signed on November 16, 1987, but it was not signed on that date. On November 30, 1987, Johnson again led Hochschuler to believe that the proposed affiliation agreement would be signed, either that day or the following day. It was never signed. Johnson admitted that if he had told Hochschuler of his intent to leave Texas Back Institute, Hochschuler would have been able to protect the Institute's charts and files.
        This suit was filed shortly after December 1, 1987. Trial was to a jury, which found that the defendants Johnson and Campbell were liable to plaintiff in damages on several of the causes of action pled by the plaintiff doctors. It found damages to plaintiffs in the following amounts of money:
        1.        $38,000 in actual damages against Johnson and Campbell for Texas Back Institute's loss of fees for medical services rendered by Johnson before December 1, 1987, to patients of Texas Back Institute;
 
        2.        $200,000 in damages against Johnson for Texas Back Institute's loss of business opportunities before December 1, 1987 (in detrimental reliance on Johnson's representation that he would continue his affiliation with Texas Back Institute);
 
        3.        (a) $151,000 in damages against Johnson and Campbell for business loss "sustained in the past," and (b) $700,000 against them as damages which "in reasonable probability will be sustained in the future";
 
        4.        $25,001 in exemplary damages against Johnson (for his acts or omissions which were found to have been done fraudulently or maliciously by him);
 
        5.        $2,501 in exemplary damages against Campbell (for the acts or omissions which were found to have been done fraudulently or maliciously by her); and
 
        6.        $100,000 as reasonable attorneys' fees against Johnson (for the prosecution by Texas Back Institute of the claims against Johnson for breach of contract).
        Texas Back Institute moved for judgment on the verdict, seeking a judgment for the actual damages ($889,000 jointly and severally against Johnson and Campbell and $200,000 against Johnson individually), punitive damages ($25,001 against Johnson and $2,501 against Campbell), and attorneys' fees ($100,000 against Johnson), all in accordance with the jury's findings, as well as injunctive relief to prevent Johnson's continuing unfair competition.
        Johnson and Campbell moved "for Judgment Non Obstante Veredicto, and to Disregard Certain Findings and for Additional Express Findings." Johnson and Campbell, in their motions, asked that only the answer of the jury to Question 3 be disregarded on the ground that there was no evidence to support those answers.
        Question 3 inquired:
                Did Texas Back Institute reasonably, foreseeably, and substantially rely to its detriment upon the representation by Robert Johnson that he would sign an affiliation agreement and continue his affiliation with Texas Back Institute?
 
The jury answered "Yes."
 
        Question 14 (in pertinent part) asked:
 
                Did any of the following acts or omissions, as you may have been instructed or may have found in response to questions, proximately cause the loss to Texas Back Institute of any business opportunity or opportunities of Texas Back Institute prior to December 1, 1987. Answer "yes" or "no" for each of the following:
 
 
Act or Omission
* * *
        3.        Texas Back Institute's reasonable, foreseeable, and substantial detrimental reliance upon Johnson's representation that he would sign an affiliation agreement and continue his affiliation with Texas Back Institute.
The jury answered "yes" (that the above act or omission inquired about in 3 was a proximate cause of the loss to Texas Back Institute of business opportunity).
        Question 15 inquired:
                What sum of money, if paid now in cash, would fairly and reasonably compensate Texas Back Institute for its loss of any business opportunity or opportunities of Texas Back Institute prior to December 1, 1987, if any, that resulted from the foregoing acts or omissions?
The jury answered "$200,000."
        The trial judge granted defendants' motion for Judgment Non Obstante Veredicto with respect to the jury's answers to question 3. Judgment was signed on May 13, 1988, which decreed that Texas Back Institute recover the following amounts of money:
        1.    $231,000 from Robert Johnson and Helen Campbell, jointly and severally;
 
        2.    $38,000 from Robert Johnson;
 
        3.    $5,001 from Robert Johnson as punitive and exemplary damages;
 
        4.    $501 from Helen Campbell as punitive and exemplary damages;
 
        5.    $60,000 from Robert Johnson as reasonable attorneys' fees; and,
 
        6.    Interest in the aforesaid sum of money from date of judgment until paid.
In addition, the judgment provided for an injunction against Johnson, which, however, is not involved in this appeal.
        Defendants filed a "Motion to Modify the Judgment," which was granted in part. As a result, the judgment signed on May 13, 1988, was modified by judgment signed on June 7, 1988. The only change in the two judgments was the deletion in the last judgment of the injunctive provision contained in the first judgment. Thus, the trial judge refused to include in the judgment signed on June 7, 1988, any of the injunctive relief sought by plaintiff. FN:4 In effect, the trial court, in the final judgment, as modified, refused to render judgment on the verdict and (1) substituted for the jury's answers in the verdict his own findings of lesser amounts of damages, punitive damages, and attorneys' fees, and (2) disregarded jury findings of liability and $200,000 in reliance damages.
        Texas Back Institute presents two points of error FN:5 in this appeal. They read:
First Point of Error
                The trial court erred in refusing to render judgment on the verdict and, instead, substituting in the judgment its findings, for those of the jury, as to the amounts of actual damages, punitive damages, and attorneys' fees.
 
Second Point of Error
                The trial court erred in refusing to render judgment on the verdict, including the jury's answers establishing liability for $200,000 in reliance damages for a lost business opportunity.
 
        Defendants, in seven reply points, contend:
 
        1.    The trial court's reduction of damages is not an appealable order under Tex. R. App. P. 85(b);
 
        2.    The Court of Appeals lacks jurisdiction to consider this appeal because appellants' rejection of the reduction of damages resulted in the automatic granting of a new trial;
 
        3.    Appellants waived the right to complain of the manner of the trial court's reduction of damages;
 
        4.    Appellants have waived the right to complain of the action of the trial court because appellants' points of error are global, vague and do not complain of appealable error;
 
        5.    Appellants waived the right to complain of the action of the trial court by failing to make a specific objection at the trial court level;
 
        6.    The trial court properly remitted the jury's award of attorneys' fees, future business loss and injury, and exemplary damages because the evidence was factually insufficient to support the jury's findings of such damages; and
 
        7.    The trial court properly disregarded the jury's findings of detrimental reliance, proximate cause of such reliance to any injury and the award of damages because the evidence was legally insufficient to support the jury's findings.
        Defendants, in their first five "reply points," contend that the final judgment is not an appealable order. They argue in reply point two that the judgment, as modified, is not a final judgment but is no more than an order granting a new trial, which is not appealable. We disagree. The judgment is a final judgment which satisfies the requirements of Tex. R. Civ. P.301.
        Concerning reply point one, defendants assert that the final judgment is, in effect, a remittitur, and, therefore, is not an appealable order under Tex. R. App. P. 85(b). We do not agree. We hold that the trial court did not direct a remittitur in this case, and the judgment, as above-stated, is a final judgment.
        Tex. R. Civ. P. 315 establishes how a remittitur may be made. For there to be a remittitur: (1) a final judgment must be rendered in favor of a party to the suit; (2) that party may make a remittitur (a) in open court or (b) by filing with the clerk of the court a written, executed and acknowledged instrument of remittitur; and (3) the remittitur must be part of the record. None of those acts occurred in this case. Defendants' claim that "it is clear that the trial court's reduction of the damage award was in truth and fact the granting of a remittitur" cannot be sustained. Defendants' reliance upon City National Bank in Wichita Falls v. Jackson National Bank, 602 S.W.2d 511 (Tex. 1980), is misplaced. In that case, the defendant filed a motion for new trial, and in the alternative, requested a remittitur; the trial court granted a new trial conditional on the plaintiff's non-compliance with the order of remittitur. In the instant case, defendants, in their motion for new trial, did not alternatively request a remittitur, nor did the trial court grant a new trial conditional on the plaintiffs' non-compliance with the order directing a remittitur. See Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 (1959), overruled on other grounds, Larson v. Cactus Utility Co., 730 S.W.2d 640, 641 (Tex. 1987). The reduction in the amounts of money found by the jury to be due Texas Back Institute by the trial judge sua sponte was not a remittitur. We agree that the trial court has the power to require a remittitur on its own motion as a part of its power to grant a new trial, as contended by defendants, and as held in Union Carbide Corp. v. Burton, 618 S.W.2d 410, 416 (Tex. Civ. App.--Houston [14th District] 1981, writ ref'd n.r.e.). However, in the case at bar, the trial judge did not order a remittitur in connection with the granting of a new trial; instead, he overruled defendants' motion for new trial. Defendants' arguments to the effect that the reduction in damages by the trial court constituted "the granting of a remittitur," and "is the legal equivalent, in terms of appealability, of a motion for new trial," has no merit.
        There was no waiver by Texas Back Institute of any rights to complain of the action by the trial court as claimed by defendants in their reply points three, four and five. The record showed that Texas Back Institute on numerous occasions objected and excepted to the actions by the trial court. Specifically, Texas Back Institute (1) moved for judgment in the verdict, (2) excepted to the trial court's ruling at the hearing on its motion for judgment and on defendants' motion for judgment non obstante veredicto, and (3) moved to modify the judgment, again requesting the trial court to render judgment on the verdict. Texas Back Institute, in its motion to modify the judgment, re-urged the court to render judgment on the verdict and each of its answers in that verdict. It also pointed out to the trial court that the court had committed error in granting a partial judgment non obstante veredicto by disregarding the jury findings regarding question 3, 14 and 15. All of the errors by the trial court complained of by Texas Back Institute were timely brought to the attention of the trial court. There is no merit in defendants' reply points three, four and five.
        The two points of error presented by Texas Back Institute are not global, vague and do complain of appealable error. Tex. R. App. P. 74(p) mandates that the briefing rules are to be construed liberally. The rule states:
        The purpose of briefs being to acquaint the court with the points relied upon, the manner in which they arose, together with such argument of facts and law as will enable the court to decide the same, a substantial compliance with these rules will suffice in the interest of justice; but for a flagrant violation of this rule the court may require the case to be rebriefed.
        A review of the two points of error before this court in this appeal, considering the language in the points, the statements and arguments, shows that Texas Back Institute has clearly and concisely stated its complaints of the trial court's actions in its rendition of the judgment. The points of error adequately call this Court's attention to the matters of which Texas Back Institute complains. The record is replete with citations by page and volume where the asserted errors were made. It is clearly shown by the references to the record made by Texas Back Institute in its brief that the trial judge refused to render judgment in accordance with the jury's findings in answer to questions which inquired into amounts of money for actual damages, punitive damages and attorneys's fees. It is further shown by such references that the effect of the trial court's partially granting defendants' motion for judgment non obstante veredicto was to completely disregard the jury's answer to questions 3, 14 and 15 concerning liability for $200,000 in reliance damages for lost business opportunity. The statements and arguments in Texas Back Institute's brief are sufficient to challenge the granting, in part, of defendants' motion for judgment non obstante veredicto. The points of error are sufficient under the rule announced in Fambrough v. Wagley, 141 Tex. 1, 169 S.W.2d 478, 482 (1943), and pursuant to Tex. R. App. P. 74(p). The points of error properly complain of appealable error.
        Defendants' reply point six is based on the contention that the trial court's action refusing the amount of damages found by the jury is, "in essence, a remittitur," and on the further contention that the trial court "determines that the evidence was factually insufficient to support the excessive award of damages under the jury's verdict." Neither contention has any merit. The trial court did not order a remittitur. As we have already held, there was no remittitur in this case. Furthermore, Texas Back Institute, the party who prevailed in the trial court, was not given the option of accepting a remittitur or having a new trial granted. See Larson v. Cactus Utility Co., 730 S.W.2d at 641.
        Moreover, if defendants' real complaint in reply six is that the evidence is factually insufficient to support the jury's answer to the damages question, then the point must fail. In that instance, they should have filed a cross-point asserting such deficiency and asked for a reversal and remand. See Tex. R. Civ. P. 324(c); Jackson v. Ewton, 411 S.W.2d 715, 717 (Tex. 1967). Defendants did not bring a cross point wherein they contended that the evidence is factually insufficient to support the damages found by the jury. Consequently, the contention, if viable, has been waived. Most Worshipful Prince Hall v. Jackson, 732 S.W.2d 407, 411 (Tex. App.--Dallas 1987, writ ref'd n.r.e.). We note that defendants, while arguing factual insufficiency of the evidence, did not ask for a reversal and remand; instead they asked that the judgment be affirmed, thereby representing that the evidence was sufficient to support the damage award made by the trial court. Therefore, they have waived any complaint which would have prevented an affirmance of the judgment if the judgment had been rendered in harmony with the jury verdict.
        Texas Back Institute, in its second point of error, argues that the trial court erred in granting defendants' judgment non obstante veredicto with respect to the jury's answers to question 3 and in refusing to award them $200,000 in reliance damages for a lost opportunity, as found by the jury. Defendants, in their reply point seven, assert that the trial court properly rendered partial judgment non obstante veredicto and correctly disregarded "the jury's findings of detrimental reliance, approximate cause of such reliance, and the award of damages for detrimental reliance because the evidence was legally insufficient to support the jury's findings." Both points will be considered together.
        First, we discuss defendants' reply point seven, as argued by them in their brief. The judgment rendered by the trial court is exactly the judgment requested by defendants. The trial judge disregarded the jury's answers to questions 3, 14 and 15, and granted defendants' motion for judgment non obstante veredicto and to disregard the jury's answers to those questions. Consequently, they do not have any complaint as to the trial court's disregarding the jury's answers to those questions. See Houston First American Savings v. Musick, 650 S.W.2d 764, 770 (Tex. 1983).
        The trial court submitted to the jury, without objection by defendants, the theory of promissory estoppel, and the jury made findings in answer to questions 3, 14 and 15 against the defendants on each and every element of such theory, including reasonable, detrimental, and substantial reliance upon Johnson's promise, proximate causation, and damages. Defendants do not contend that the trial court erred in submitting the elements of promissory estoppel to the jury; they do not present any argument in support of their assertion about the legal sufficiency of the evidence supporting the jury's findings of (1) the promise, (2) the foreseeable reliance thereon, and (3) the loss of a business opportunity worth $200,000. Rather, they argue merely about sufficiency of evidence of facts and elements of recovery that were not asked about in such questions. They list six elements for a cause of action for fraud, a theory which was not submitted to the jury and on which the verdict was not based, and now attempt to demonstrate that there was no evidence for their listed elements that the speaker knew the representation was false, made recklessly, or that the speaker made the representation with the intent that it should be acted upon by the plaintiff doctors. They wholly failed to demonstrate that there was no evidence, or "legally insufficient evidence," to support the jury's findings of liability, causation, and damages on the theory of promissory estoppel. See English v. Fischer, 660 S.W.2d 521, 524 (Tex. 1983); Wheeler v. White, 398 S.W.2d 93 (Tex. 1965); First State Bank in Archer City v. Schwartz Co., 687 S.W.2d 453 (Tex. App.--Dallas 1985, writ ref'd n.r.e.).
        Johnson commenced working for the plaintiff doctors in August 1984. During the three years that followed, he developed as a skilled physician, and the plaintiff doctors felt confident in entrusting their patients to his care. He was entrusted with and given the responsibility for manning their RHD Memorial Center satellite office.
        Around October 27, 1987, almost a month after the basic terms of the new relationship had been agreed to in the "Deal Point Memorandum," Texas Back Institute was approached by the administrator of RHD Memorial Center with a business opportunity. He proposed that if Texas Back Institute would close its satellite office at the competing Trinity Memorial Center and consolidate its practice and physicians from that office to the RHD Memorial Center office, it would furnish benefits worth more than $200,000, including marketing and advertising, reimbursement of a finders fee, and assumption of Texas Back Institute's obligations on its office lease at Trinity, and other benefits. Thus, Texas Back Institute was presented with an opportunity to be paid the equivalent of more than $200,000 to close one of its offices and consolidate into another. Johnson, who had earlier represented and promised in the "Deal Point Memorandum" and otherwise that he would sign an affiliation agreement, complained to the Texas doctors about the other doctor from the Trinity office being placed in the RHD Memorial Center office where he, Johnson, had prime responsibilities and benefits. Because of such objection, in reliance upon his representation that he would soon join it as a shareholder-employee, Texas Back Institute turned down the $200,000 business opportunity that had been offered. Later, because of Johnson's acts, Texas Back Institute had to close the RHD Memorial Center office, with no such benefits available. On December 1, 1987, Johnson notified Texas Back Institute that he would no longer be associated with it, and immediately became associated with another group of orthopedic surgeons.
        In signing the "Deal Point Memorandum," Johnson could and should have foreseen that Texas Back Institute would rely upon his representations made therein. It is undisputed that Texas Back Institute was led to believe that its president and Johnson, through his lawyer, were continuing in good faith to work on the final documentation, and it was unaware of Johnson's contrary intentions. From October 1, 1987, through November 30, 1987, including the expected signing of the affiliation agreement in mid-November 1987, Texas Back Institute was not given any reason to believe that Johnson would not continue to be affiliated with it or leave, in the way he left, or otherwise. The substantiality of, and the detriment from, the reliance is shown by the $200,000 value of the benefit rejected in reliance upon Johnson's representations. There is evidence that Texas Back Institute lost the valuable business opportunity because it relied on Johnson's representation that shortly he would be the new and fourth principal in Texas Back Institute. There is some evidence that Texas Back Institute would have accepted the valuable business proposition but for Johnson's representation that he would sign the affiliation agreement.
        It has long been the rule that the judgment of the trial court shall conform to the pleadings, the nature of the case proved, and the verdict in a case tried to a jury; provided, however, that upon motions and reasonable notice the court may render judgments non obstante veredicto if a directed verdict would have been proper, and provided further that the courts may, upon like motion and notice, disregard any jury finding on a question that has no support in the evidence. Tex. R. Civ. P. 301.
        A judgment non obstante veredicto is authorized only where there is no evidence of probative force to support the findings of the jury, or where the questions are immaterial to the case. Garza v. Alviar, 395 S.W.2d 821 (Tex. 1965).
        In resolving the questions of whether the trial court properly rendered a partial judgment non obstante veredicto or in disregarding the jury's answers to questions 3, 14, 15, we must determine whether there is any evidence reasonably tending to prove, either directly or indirectly, the findings made by the jury. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958). In reviewing the evidence, an appellate court views such evidence in the light most favorable to the verdict. Frost National Bank v. Nicholas and Barrera, 534 S.W.2d 927, 932 (Tex. Civ. App.--Tyler 1976, writ ref'd n.r.e.).
        We have already set out the evidence relating to Questions 3, 14 and 15. Such evidence is legally sufficient to support the jury's findings: (1) that Texas Back Institute did, in fact, rely to its detriment upon Johnson's representations and that such reliance was reasonable, foreseeable and substantial (Question 3); (2) that the "acts or omissions" of Johnson proximately caused the loss to Texas Back Institute of a business opportunity (Question 14); and (3) that $200,000 would fairly compensate Texas Back Institute for the loss of the business opportunity (Question 15). The trial court erred in granting partial judgment non obstante veredicto, in disregarding the answers by the jury in response to Questions 3, 14, and 15, and in failing to include in its judgment the $200,000 in reliance damages. Defendants' reply point seven has no merit. Texas Back Institute's second point of error is sustained.
        We now turn to Texas Back Institute's first point of error wherein complaint is made that the trial court erred in refusing to render judgment on the verdict and in substituting in the judgment its findings for those of the jury concerning the amounts of actual damages, punitive damages and attorney's fees. We sustain the point.
        As has already been stated, the jury's answers to the questions propounded to it may be disregarded by the trial court only if they are immaterial or have no support in the evidence. See Eubanks v. Winn, 420 S.W.2d 698, 701 (Tex. 1967). This rule also controls even though the great weight and preponderance of the evidence might be to the contrary. Gulf, Colorado & Santa Fe Railway Co. v. Deen, 158 Tex. 466, 312 S.W.2d 933 (1958), cert. denied, 358 U.S. 874, 79 S. Ct. 111, 3 L. Ed. 2d 105 (1958).
        Defendants do not contend that there was "no evidence" to support the answers by the jury to support the several findings of damages and attorney's fees. By asking that the judgment be affirmed, they have admitted that there was evidence, factually and legally sufficient, to support awards to plaintiffs of actual damages, punitive damages and attorney's fees. They argue, in effect, that the trial court properly refused to render judgment on the verdict and, in reducing the damages and attorney's fee findings of the jury, properly disregarded these findings. We disagree. The jury's findings with respect to actual damages, punitive damages and attorneys' fees are not immaterial and are supported by evidence of probative value. The trial court erred in failing to render judgment on the verdict and in substituting his own findings for those of the jury in the judgment now on appeal to this court.
        The judgment of the trial court is reversed and judgment is here rendered as follows: that plaintiffs Texas Back Institute Physicians, P.A., Ralph Rashbaum, Stephen Hochschuler and Richard Guyer recover of and from Robert Johnson and Helen Campbell, jointly and severally, the sum of $889,000 plus interest thereon at the rate of ten percent per annum from and after April 12, 1988, until paid; that plaintiffs Texas Back Institute Physicians, P.A., Ralph Rashbaum, Stephen Hochschuler and Richard Guyer recover of and from Robert Johnson, additionally, punitive and exemplary damages in the sum of $25,001.00, plus interest thereon at the rate of ten percent per annum from and after the date of this judgment until paid; that plaintiffs Texas Back Institute Physicians, P.A., Ralph Rashbaum, Stephen Hochschuler and Richard Guyer recover of and from Helen Campbell, additionally, punitive and exemplary damages in the sum of $2,501.00, plus interest thereon at the rate of ten percent per annum from and after the date of this judgment until paid; that Texas Back Institute Physicians, P.A., Stephen Hochschuler and Richard Guyer have and recover of and from Robert Johnson the sum of $100,000 as attorneys' fees, plus interest on such sum at the rate of ten percent per annum from and after the date of this judgment until paid; and that defendants Robert Johnson, Robert Johnson, M.D., P.A., take nothing by their counterclaims and that all court costs are taxed against defendants Robert Johnson, Robert Johnson, M.D., P.A., and Helen Campbell.
        Reversed and rendered.
 
 
                                                          
                                                          GERALD T. BISSETT
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 90
 
881047.U05
 
FN:1 The Honorable Bill J. Stephens, retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
FN:2 The Honorable Gerald T. Bissett, Justice, retired, Court of Appeals, Thirteenth District of Texas at Corpus Christi, sitting by assignment.
FN:3 Johnson was paid salary, bonus and fringe benefits of $96,710, $201,842, and $361,241, respectively in his three years. Texas Back Institute made net profits from the RHD Medical Center of $121,893, $130,140, and $141,886, respectively for the three years.
FN:4 After the judgment had been rendered, on May 13, 1988, and modified on June 7, 1988, the trial judge signed an order on August 16, 1988, attaching an exhibit called "Rulings of the Court," which shows how the final judgment amounts were calculated. Although referring to "portions of the Motion for JNOV," the trial judge actually made a notation relating to each jury question, rather than to the particular points in Johnson's and Campbell's Motion for JNOV. The notations were either "stand," "NOV," or a number. Where a number was written, the trial judge substituted for the jury's his own finding of an amount of damages, punitive damages, or attorneys' fees. Before rendering judgment, the trial judge had stated about the question to which the jury had found $700,000, "well, my answer to that's going to be eighty thousand dollars. Eighty thousand." As to the jury's answer to the question where the jury had assessed punitive damages of $25,000 and $2,500, he stated: "I'm going to cut those exemplary damages to five thousand to Robert Johnson, five hundred to Helen Campbell." As to the jury's finding of $100,000 in attorneys' fees, he stated," I'm going to cut or reduce that to 60 thousand dollars."
FN:5 Texas Back Institute brought up three points of error in its brief. It complained in its third point that the trial court erred in refusing to include the prayed-for injunctive relief against Dr. Johnson. However, it waived this point at oral argument.
File Date[10-17-89]
File Name[881047]