DUB MARTIN & COMPANY,FROM A DISTRICT COURT d/b/a RISC, INC., APPELLANT, v. OF LELAND K. MERWIN AND ART DELAPLAIN, APPELLEES

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-01240-CV
 
DUB MARTIN & COMPANY,FROM A DISTRICT COURT
d/b/a RISC, INC.,
 
        APPELLANT,
 
v. OF
 
LELAND K. MERWIN AND
ART DELAPLAIN,
 
        APPELLEES.DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, LAGARDE AND KINKEADE
OPINION BY JUSTICE WHITHAM
JUNE 16, 1989
        This suit arises out of a contract dispute. Appellant, Dub Martin & Company, d/b/a RISC, Inc. (RISC) originally sued Leland Merwin and Art Delaplain, appellees, for damages arising out of Merwin and Delaplain's breach of contract. Merwin and Delaplain counterclaimed. The trial court entered judgment on the verdict in favor of Merwin and Delaplain. The judgment was later modified (the "Modified Final Judgment"). Because Merwin and Delaplain have failed to defeat by defenses and counterclaims RISC's right to recover as set forth in RISC's fourth amended original petition, we reverse the trial court's judgment and render judgment in RISC's favor.
        The Houston RISC office was in the excess and surplus insurance brokerage business. Insurance agents could call upon RISC and find markets for insurance coverage desired by the consumers. In 1984, Merwin and Delaplain began working for RISC in its Houston office, and in the fall of 1984, RISC's representatives discussed with Merwin and Delaplain the purchase of one-half of the assets of the Houston office. After extensive negotiation, the parties signed the "Comprehensive Agreement" in February 1985, understanding that it was effective January 1, 1985 through December 31, 1987. The Comprehensive Agreement provided that Merwin and Delaplain would purchase, operate, and manage the Houston RISC office in exchange for $90,000 (the "Rights Price") representing one-half of the assets, tangible and intangible, of the business. In the event Merwin and Delaplain operated the Houston RISC office at a profit, Merwin and Delaplain, as one unit, and RISC, as the second unit, would share equally in such profits. In the event Merwin and Delaplain operated the Houston RISC office at a loss, Merwin and Delaplain would be responsible for reimbursing to RISC the amount of the loss. RISC was to provide certain accounting records to Merwin and Delaplain, based in large measure on information generated and provided by Merwin and Delaplain, and to account for any profit or losses. Merwin and Delaplain had the responsibility for the day to day management and profitability of the Houston RISC office for a period of two years, at the end of which time RISC had the sole discretion to either sell the remaining one-half of that Houston RISC office's assets to Merwin and Delaplain or buy back from Merwin and Delaplain the one-half of the assets already sold. If the assets were to be repurchased by RISC, then Merwin and Delaplain were to receive either "cash or stock in Rigg Group, Inc."
        Merwin and Delaplain contend that they were originally employees of RISC in the Houston RISC office who had no intent to purchase any interest in RISC's business. Merwin and Delaplain assert that they signed employment contracts containing covenants not to compete and that, by design, they were thereafter required to sign the Comprehensive Agreement or lose their jobs and suffer the consequences of the covenants not to compete. Merwin and Delaplain maintain that the Comprehensive Agreement was incomplete at the time it was signed in that none of the exhibits were attached. Merwin and Delaplain argue that the assets, one-half of which were being sold, were inflated in price and were misrepresented by RISC with regard to what was actually being sold. Finally, Merwin and Delaplain contend that the situation at the Houston RISC office deteriorated to such an extent that the business was closed in September 1985.
        On the other hand, RISC maintains that Merwin and Delaplain consistently operated the Houston RISC office at a loss, thus entitling RISC to demand monthly payment of such loss. RISC contends that Merwin and Delaplain failed to make monthly "Rights Price" payments and that Merwin and Delaplain only paid RISC $45,000 instead of $90,000 as required by the Comprehensive Agreement. Although RISC sent the "Section 4.01(a) accounting" on a monthly basis, RISC concedes that it failed to send the "Section 4.03 accounting" statements regarding the monthly loss every month during the relevant January 1985 to September 1985 time period. Nevertheless, RISC asserts that Merwin and Delaplain had accounting and financial records which they themselves had generated and that those records demonstrated, or should have demonstrated, that the Houston RISC office was operating at a loss.
        In August and September of 1985, the parties discussed the deteriorating situation. Thereafter, the parties agreed to cease operation under the Comprehensive Agreement, and they discussed the possibility of Merwin and Delaplain purchasing all assets from the Houston RISC office. The parties signed an agreement to that effect, the "Draft of Intent"; however, RISC asserts that Merwin and Delaplain never fulfilled the terms of the Draft of Intent.        
        In its fourth amended original petition, RISC brought an action against Merwin and Delaplain for breach of a contract entitled by the parties as "Comprehensive Agreement". Merwin and Delaplain moved to realign the parties and in connection with their motion admitted, pursuant to Rule 266 of the Texas Rules of Civil Procedure, that RISC was entitled to recover as set forth in its fourth amended original petition except so far as it may be defeated, in whole or in part, by defenses and counterclaims of Merwin and Delaplain which may be established at trial. The trial court then realigned the parties and allowed Merwin and Delaplain to open and conclude both in adducing their evidence and in the argument. See TEX. R. CIV. P. 266.
        We turn then to the jury's findings as to Merwin and Delaplain's defenses and counterclaims. The jury found that:
        (1)        No representation made by RISC was false (question (2));
 
        (2)        RISC did not fail to disclose information concerning the valuation of assets (question 13);
 
        (3)        RISC did not cause confusion or misunderstanding with respect to the valuation of assets (question 14(1));
 
        (4)        RISC did not cause confusion or misunderstanding as to its association with another (question 14(2));
 
        (5)        RISC did not represent that assets or accounting services had characteristics, uses, benefits, or quantities which they did not have (question 14(3));
 
        (6)        RISC did not represent that the assets or the accounting services were of a particular standard, quality, or grade (question 14(4));
 
        (7)        RISC did not represent that the assets or accounting services were of another standard, quality, or grade than as represented (question 14(4));
 
        (8)        RISC did not fail to disclose to Merwin and Delaplain information concerning RISC accounting services known by RISC with intent to induce Merwin and Delaplain into a transaction into which they would not have entered had the information been disclosed (question 15);
 
        (9)        RISC did not fail to disclose to Merwin and Delaplain information concerning the sale of one-half of the Houston Office known by RISC with intent to induce Merwin and Delaplain into a transaction into which they would not have entered had the information been disclosed (question 16);
 
        (10)        RISC did not represent to Merwin and Delaplain that the Comprehensive Agreement conferred or involved rights, remedies, or obligations which it did not have (question 17);
 
        (11)        With regard to Merwin and Delaplain's purchase of the Houston Office, RISC did not engage in an "unconscionable action or course of action" toward Merwin and Delaplain (question 18);
 
        (12)        RISC did not commit constructive fraud which prejudiced the rights of Merwin and Delaplain (question 23);
 
        (13)        RISC breached the Comprehensive Agreement (question 30);
 
        (14)        RISC's breach was a material breach (question 31);
 
        (15)        RISC's breach of the Comprehensive Agreement was not a proximate cause of damages to Merwin and Delaplain (question 32);
 
        (16)        Merwin and Delaplain breached the Comprehensive Agreement (question 38);
 
        (17)        Merwin and Delaplain's breach was a material breach (question 39);
 
        (18)        Merwin and Delaplain's breach of the Comprehensive Agreement was a proximate cause of damages to RISC (question 40);
 
        (19)        There was a special relationship between RISC and Merwin and Delaplain created by the Comprehensive Agreement (question 41);
 
        (In connection with question 41 the jury was instructed that a "special relationship" exists where there is unequal bargaining power between the parties, where one party has exclusive, arbitrary, or discretionary control over the fortunes of the other party, and where the opportunity exists for one party to take unfair advantage of the other.)
 
        (20)        RISC had no reasonable basis for its failure to provide correct accounting services or other informational services to Merwin and Delaplain (question 42);
 
        (21)        RISC's failure to provide correct accounting services or other informational services was not a proximate cause of damages to Merwin and Delaplain (question 43);
 
        (22)        RISC failed to provide correct and proper accounting services to Merwin and Delaplain (question 49);
 
        (23)        RISC's failure to provide correct and proper accounting services to Merwin and Delaplain was negligence (question 50);
 
        (24)        Merwin and Delaplain were negligent in failing to review or use financial and accounting records provided by RISC in the operation of the Houston Office (question 51);
 
        (25)        The percent of negligence attributed to the parties in answer to questions 50 and 51 as being a proximate cause of damages to Merwin and Delaplain is:
 
            Merwin and Delaplain        40%
            RISC                                          60%
        (question 52);
 
        (26)        The following amounts would reasonably compensate Merwin and Delaplain for damages suffered as a result of RISC's negligence:
 
            Merwin                        $67,000.00
                        Delaplain                           3,500.00,
        for unpaid salaries (question 53);
 
        (27)        RISC was not grossly negligent (question 54);
 
        (28)        The Comprehensive Agreement was an offer for sale of securities by RISC to Merwin and Delaplain in the form of William Rigg, Inc. stock (question 56);
 
        (29)        RISC possessed a form of permit issued by the State of Texas to offer the Rigg stock on the date of the Comprehensive Agreement (question 57) (arrived at by reading double negative. We quote question 57 and answer:
 
            Do you find from a preponderance of the evidence that Dub Martin & Company, Inc. d/b/a RISC, Inc. did not possess any form of permit issued by the State of Texas to offer such securities for sale on the date the "Comprehensive Agreement" was executed?
 
                Answer:        "We do" or "We do not."
 
                Answer:        We Do Not .)
With the exception of findings as to the partys' attorney's fees, we have summarized the jury's findings to the sixty-three questions submitted. From the above jury findings, we conclude that the jury rejected each of Merwin and Delaplain's allegations constituting a defense or counterclaim. However, in light of the jury's answers to certain questions, we conclude that it would be proper to state why the defenses and counterclaims of breach of contract and negligence are of no avail to Merwin and Delaplain. Further, in view of the trial court's disregarding a jury finding negating the defense and counterclaim of a Texas Securities Act violation, we conclude further that it would be proper to state why the defense and counterclaim of a Texas Securities Act violation is of no avail to Merwin and Delaplain.
 
Breach of Contract
        In answer to question thirty, thirty-one, and thirty two, the jury found that RISC breached the Comprehensive Agreement; that RISC's breach was a material breach; and that RISC's breach was not a proximate cause of damages to Merwin and Delaplain. Under its first and second points of error, RISC maintains that the trial court erred in failing to give effect to Merwin and Delaplain's rule 266 admissions because, among other reasons, the jury's finding to question thirty-two establishes that Merwin and Delaplain failed under their breach of contract defense and counterclaim to obtain an offset to RISC's right to recover. We agree. Proximate cause includes two essential elements: (1) foreseeability, and (2) cause in fact. Both elements must be present and may be established by direct or circumstantial evidence. Proximate cause cannot be established by mere guess or conjecture, but rather must be proved by evidence of probative force. Foreseeability is satisfied by showing that the actor, as a person of ordinary intelligence, should have anticipated the danger to others by his negligent act. Cause in fact means that the act or omission was a substantial factor in bringing about the injury and without which no harm would have occurred. McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 903 (Tex. 1980) (citations omitted). While a proximate cause issue appears to be a negligence issue rather than a breach of contract issue, nevertheless, we treat the jury's finding that RISC's breach of the Comprehensive Agreement was not a proximate cause of damages to Merwin and Delaplain as a finding that Merwin and Delaplain were not damaged by RISC as a result of the breach by RISC of the Comprehensive Agreement. The essential elements of a suit for breach of contract are (1) the existence of a valid contract; (2) that the plaintiff performed or tendered performance; (3) the defendant breached the agreement; and (4) the plaintiff was damaged as a result of the breach. Landrum v. Devenport, 616 S.W.2d 359, 361 (Tex. Civ. App.--Texarkana 1981, no writ). When the cause of action is based on contract, there must be some showing of the existence of a contract between the parties: that duties were created by the contract, that a breach of the duties occurred, and that the party sustained damages. Title Insurance Co. of Minnesota v. Dean, Ludka, Harrison and Johnson, 616 S.W.2d 683, 684 (Tex. Civ. App.--Corpus Christi 1981, no writ). Absent a finding of damages, we conclude that Merwin and Delaplain cannot recover damages for RISC's breach of the Comprehensive Agreement. It follows, therefore, that Merwin and Delaplain failed under their breach of contract defense counterclaim to obtain an offset to RISC's right to recover. Hence, we conclude that the trial court erred in entering judgment on the verdict in favor of Merwin and Delaplain. We sustain RISC's first and second points of error. By doing so, we determine that Merwin and Delaplain's breach of contract defense and counterclaim to be of no avail to defeat RISC's right to recover under its fourth amended original petition.
Negligence
        In answer to question fifty-three, the jury found that the following amounts would reasonably compensate Merwin and Delaplain for damages suffered as a result of RISC's negligence:
        Merwin                $67,000.00
        Delaplain                 3,500.00
RISC moved to disregard the jury's finding to question fifty-three. Instead, the trial court rendered judgment on the verdict. In its third point of error, RISC contends that the trial court erred in entering judgment for Merwin and Delaplain because Merwin and Delaplain failed under their negligence claim to obtain an offset to RISC's right to recover. We agree. Merwin and Delaplain's negligence claim stands upon the jury's finding in response to question fifty that RISC's failure to provide correct accounting services to Merwin and Delaplain was negligence. However, the jury in answer to question forty-three found that RISC's failure to provide correct accounting services to Merwin and Delaplain was not a proximate cause of damages to Merwin and Delaplain.
        In connection with question forty-three the trial court instructed the jury:
        In connection with this special issue, and this special issue only, you are instructed that the term "proximate cause" means that cause which in a natural and continuous sequence, produces an event, and without this cause such an event would not have occurred; and in order to be a proximate cause the condition complained of must be such that a person of ordinary care would have foreseen that the event, or any similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.
Merwin and Delaplain do not challenge the jury's response to question forty-three or the instruction. Absent a finding of proximate cause, we conclude that Merwin and Delaplain cannot recover damages for RISC's negligent failure to provide correct accounting services to Merwin and Delaplain. To sustain a cause of action for negligence it is necessary to produce evidence of a duty, a breach of that duty, proximate cause, and damage. Colvin v. Red Steel Co., 682 S.W.2d 243, 245 (Tex. 1984). In light of the jury's unchallenged finding to question forty-three, it is obvious that Merwin and Delaplain failed to meet their burden to establish proximate cause. Hence, absent proximate cause Merwin and Delaplain failed to sustain a defense and counterclaim of negligence. It follows, therefore, that Merwin and Delaplain failed under their negligence claim to obtain an offset to RISC's right to recover. Hence, we conclude that the trial court should have granted RISC's motion to disregard the jury's finding to question fifty-three. We sustain RISC's third point of error. By doing so, we determine that Merwin and Delaplain's negligence defense and counterclaim to be of no avail to defeat RISC's right to recover under its fourth amended original petition.
The Texas Securties Act
        In points of error thirteen, fourteen, and fifteen, RISC argues that the trial court erred, for various reasons, in granting Merwin and Delaplain recovery under their Texas Securities Act claims. TEX. REV. CIV. STAT. ANN. art. 581-1 et seq. (Vernon Supp. 1989). RISC maintains that Merwin and Delaplain assumed the burden of proof on the whole case by filing their amended admission pursuant to Texas Rule of Civil Procedure 266. Merwin and Delaplain assert that RISC failed to plead and prove, at trial, that any exemption from registration existed. Merwin and Delaplain rely on article 581-33A(1) which provides for the following civil liability of sellers of unregistered securities:
        (1) Registration and Related Violations. A person who offers or sells a security in violation of Section 7, 9 (or a requirement of the Commissioner thereunder), 12, 23B, or an order under 23A of this Act is liable to the person buying the security from him, who may sue either at law or in equity for rescission or for damages if the buyer no longer owns the security.
TEX. REV. CIV. STAT. ANN. art. 581-33A(1) (Vernon Supp. 1989). Merwin and Delaplain contend that they were entitled to rescission of the Comprehensive Agreement absent proof from RISC that the securities were exempt from registration. Therefore, Merwin and Delaplain maintain that RISC failed to prove an exemption at trial. As previously stated, Merwin and Delaplain admitted, pursuant to rule 266, that RISC was entitled to recover as set forth in its fourth amended original petition except so far as it may be defeated by Merwin and Delaplain's defenses and counterclaims which may be established at trial. See TEX. R. CIV. P. 266. Thus, the issue of whether RISC offered a security within the provisions of the Comprehensive Agreement and whether the security was registered or exempt from registration is a defense and counterclaim to RISC's assertion that Merwin and Delaplain breached the Comprehensive Agreement. We conclude, therefore, that Merwin and Delaplain's admission serves to place the burden of establishing a Texas Securities Act defense or counterclaim on Merwin and Delaplain.
        The jury answered but one question pertaining to Texas Securities Act violations. In response to question fifty-seven, the jury in effect found that RISC possessed a form of permit issued by the State of Texas to offer the Rigg stock on the date of the Comprehensive Agreement. Therefore, at that point Merwin and Delaplain failed to defeat, by Securities Act defense and counterclaim, RISC's right to recover as set forth in RISC's fourth amended original petition. The trial court, however, on its own motion, disregarded the jury's finding to question fifty-seven. RISC maintains that the trial court cannot disregard the jury's finding to question fifty-seven on its own initiative and in the absence of a motion. In response to RISC's assertion, Merwin and Delaplain insist that the trial court properly disregarded the jury's answer to question fifty-seven for two reasons.
        First, Merwin and Delaplain state that "there was an abundance of evidence to the contrary" to the jury's answer. But we cannot decide the issue on just evidence "contrary" to the finding. Under the provisions of Texas Rule of Civil Procedure 301, the trial court is authorized, upon motion and notice, to disregard the jury's findings in cases wherein the evidence is legally insufficient to raise any jury question. Rule 301 does not allow the rendition of a judgment non obstante veredicto when the verdict, or the particular findings challenged, though having support in the evidence, is contrary to the preponderance of the evidence. Leyva v. Pacheco, 163 Tex. 638, ___, 358 S.W.2d 547, ___ (1962). Thus, rule 301 allows a trial judge to disregard an answer to a jury question only if there is no evidence to support the jury's answer, see Ballard v. Hillcrest State Bank, 592 S.W.2d 373, 375 (Tex. Civ. App.--Dallas 1979, writ ref'd n.r.e.), and not merely because the evidence is factually insufficient to support the same. Garza, 395 S.W.2d 821. A "no evidence" point is a "legally insufficient point" presenting a question of law. Garza, 395 S.W.2d at 823. In deciding the question, we must consider only the evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary. Garza, 395 S.W.2d at 823. Applying these principles, we must determine if the trial court could properly disregard the jury's answer to question fifty-seven. Although Merwin and Delaplain claim an abundance of evidence contrary to the jury's answer to question fifty-seven, Merwin and Delaplain only cite to the following testimony elicited by counsel for Merwin and Delaplain. Counsel asked Jay Scheideman, chief financial officer for RIG Group (the parent company of RISC), the following question:
        Q. [Counsel] Prior to -- prior to entering into the Comprehensive Agreement of drafting the thing, did y'all get an opinion that Section 8.04 constitute -- did or not constitute an offering under either state or federal securities laws?
 
        A. [Scheideman] No, we did not.
Merwin and Delaplain fail to cite to any other portion of the record which would support an affirmative finding to question fifty-seven. We fail to see how the above quoted testimony constitutes any evidence that RISC failed to possess a form of permit issued by the State of Texas to offer the Rigg stocks on the date of the Comprehensive Agreement. Therefore, we conclude that there is no evidence that RISC failed to register the security. Hence, we find no merit in Merwin and Delaplain's first reason advanced as to why the trial court correctly disregarded the jury's answer to question fifty-seven.         Second, Merwin and Delaplain contend that the trial court properly disregarded the jury's answer to question fifty-seven because their motion to enter judgment squarely placed before the trial court the question of whether the jury's answer to question fifty-seven should have been disregarded. A trial court may not enter a judgment non obstante veredicto or disregard jury questions except upon written motion and notice. Brown v.Armstrong, 713 S.W.2d 725, 728 (Tex. App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.), citing Hines v. Parks, 128 Tex. 289,___, 96 S.W.2d 970, 972 (1936). Nonetheless, a trial court on its own motion may disregard the jury's answer to immaterial questions. Brown, 713 S.W.2d at 728. A question is immaterial when it should not have been presented to the jury and such finding is inapplicable to the case. Brown, 713 S.W.2d at 728. We conclude that the question is not immaterial and that the finding is applicable to the case. Hence, we conclude further that the trial court erred by granting judgment non obstante veredicto, regarding question fifty-seven, in favor of Merwin and Delaplain. We reach this conclusion because the trial court had no power to disregard the jury's finding in answer to question fifty-seven absent a proper motion seeking such relief. Although Merwin and Delaplain did file a motion to enter judgment, the motion fails to address question fifty-seven and further fails to request any relief other than judgment based on the jury's answers. Where only one or more questions are challenged, but not the whole verdict, the motion to disregard must be directed to the objectionable question or questions and point out the reasons why such question should be disregarded. See Dewberry v. McBride, 634 S.W.2d 53, 55 (Tex. App.--Beaumont 1982, no writ). Thus, Merwin and Delaplain's motion to enter judgment does not adequately address question fifty-seven. Furthermore, we conclude that question fifty-seven was material to the case because a jury finding that RISC failed to register the security or that the security was not exempt was a necessary element for recovery of damages or rescission of the Comprehensive Agreement under the Texas Securities Act. See TEX. REV. CIV. STAT. ANN. art. 581-33A(1) (Vernon Supp. 1989). Because the proper procedure for setting aside the jury's verdict was not followed and because question fifty-seven was material, the action of the trial court in disregarding the jury's response to question fifty-seven was improper. Further, the action of the trial court does not appear to be predicated on a finding that there was no evidence supporting the verdict. Hence, we find no merit in Merwin and Delaplain's second reason advanced as to why the trial court correctly disregarded the jury's answer to question fifty-seven. Accordingly, we sustain RISC's points of error thirteen, fourteen, and fifteen. By doing so, we determine that Merwin and Delaplain's Texas Securities Act defense and counterclaim to be of no avail to defeat RISC's right to recover under its fourth amended original petition.
Our Judgment
        As pointed out, Merwin and Delaplain moved to realign the parties and in connection with their motion admitted, pursuant to Rule 266 of the Texas Rules of Civil Procedure, that RISC was entitled to recover as set forth in its fourth amended original petition except so far as it may be defeated, in whole or in part by defenses and counterclaims of Merwin and Delaplain which may be established at trial. We have concluded that Merwin and Delaplain failed to defeat, in whole or in part, RISC's recovery as set forth in RISC's fourth amended original petition. In its original brief, RISC tells us that it is entitled to recover "$232,208.00 when the Fourth Amended Original Petition, the amended admission of Merwin and Delaplain, the stipulation of expert witness's fees, and jury findings are considered together." In their brief, Merwin and Delaplain do not challenge RISC's statement or the recovery amount of $232,208.00. Therefore, we accept RISC's quoted statement and the recovery amount of $232,208.00 as correct. Any statement made by appellant in his original brief as to the facts or the record may be accepted by the court as correct unless challenged by the opposing party. TEX. R. APP. P. 74(f) (formerly TEX. R. CIV. P. 419). This court has applied the rule. Any statement made by appellant in his original brief, as to the facts or the record may be accepted by the court unless challenged by opposing party. Jones v. American Economy Ins. Co., 672 S.W.2d 879, 881 (Tex. App.--Dallas 1984, no writ). In Jones, we then proceeded to accept the unchallenged statements. Indeed, the rule is applicable to unchallenged statements pertaining to damage calculations. See Modern Aero Sales, Inc. v. Winzen Research, Inc., 486 S.W.2d 135, 141 (Tex. Civ. App.--Dallas 1972, writ ref'd n.r.e.) (plaintiff stated in brief that the market value of the aircraft is established conclusively in the amount of $16,000.00 by uncontroverted testimony: held that since this statement was not challenged in appellee's brief, this court accepts it as true under Texas Rule of Civil Procedure 419). See also Board of Ins. Commissioners of Texas v. Allied Underwriters, 180 S.W.2d 990, 993 (Tex. Civ. App.--Dallas 1944, no writ) (we accepted as correct appellants' unchallenged statement that various named items aggregated $30,777.34 of losses sustained by the company by reason of the fraud, dishonesty, and bad faith of its president and secretary).
        RISC prays that we reverse the trial court's judgment and render judgment in RISC's favor in the amount of $239,208.00 plus attorney's fees of $7,000.00 which the jury found in answer to question sixty-three to be the reasonable value of attorney's fees for the preparation and presentation of this case before this court. Because Merwin and Delaplain have failed to defeat by defenses and counterclaims RISC's right to recover as set forth in RISC's fourth amended original petition, we reverse the trial court's judgment and we render judgment that Merwin and Delaplain take nothing against RISC. We render judgment in favor of RISC and against Merwin and Delaplain in the sum of $246,208.00 together with interest thereon at the rate of 10% per annum from the 29th day of August 1988, the date of the trial court's modified final judgment. FN:1
        In answer to question sixty-three, the jury also found the reasonable value of attorney's fees to be $2,000.00 for preparation and presentation of an application for writ of error or an answer to application for writ of error to the Supreme Court of Texas and $3,000.00 for the preparation and presentation of this case before the Supreme Court of Texas. Merwin and Delaplain do not challenge these findings. Therefore, we render judgment in favor of RISC and against Merwin and Delaplain in the sum of $2,000.00 in the event Merwin and Delaplain file application for writ of error to the Supreme Court of Texas and RISC answers that application. We render judgment in favor of RISC and against Merwin and Delaplain in the sum of $3,000.00 in the event the Supreme Court grants Merwin and Delaplain's application for writ of error.
        Reversed and rendered.
 
                                                  
                                                  WARREN WHITHAM
                                                  JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-01240.F
 
FN:1 Computation of judgment rate by the consumer credit commissioner for month of August 1988, 13 Tex. Reg. 4082 (1988), pursuant to TEX. REV. CIV. STAT. art. 5069-1.05, § 2 (Vernon Supp. 1989). The contents of the Texas Register are to be judicially noticed and constitute prima facie evidence of the text of the documents published in the Register and of the fact that they are in effect on and after the date of the notation. TEX. REV. CIV. STAT. ANN. art. 6252-13a, § 4(c) (Vernon Supp. 1989).
File Date[01-02-89]
File Name[881240]