Columbia /HCA Healthcare Corp. v. David W. Cottey--Appeal from 88th District Court of Hardin County

IN THE

TENTH COURT OF APPEALS

No. 10-00-337-CV

COLUMBIA/HCA HEALTHCARE CORP.,

Appellant

v.

DAVID W. COTTEY,

Appellee

From the 88th District Court

Hardin County, Texas

Trial Court # 38317

CONCURRING OPINION

Fraudulent Inducement

This is a fraudulent inducement case. The jury was not instructed that a fraudulent representation could be made by failure to disclose information that required disclosure, or by a present intent to not perform a promise regarding future conduct. Accordingly the entire discussion in the majority opinion about a duty to disclose and fraud by silence is not applicable. Accordingly, I do not join in any of the discussion of the majority on this issue.

We are required to review the sufficiency of the evidence to support the jury s answer based on the charge submitted. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000). This case was presented to the jury as an affirmative misrepresentation case. Cottey s theory, and evidence, was that during negotiation for employment it was affirmatively represented to him that all he had to do to enjoy the benefit of the Top Hat plan was to be employed for a period of six years. The evidence was sufficient to establish that this representation was made, it was material to Cottey s decision, was false, was known to be false at the time it was made, was intended to be relied upon, and was relied upon. Accordingly, without weighing the credibility of the witnesses, the jury s answer to the issue of fraudulent inducement is supported by legally and factually sufficient evidence.

Appellants contend there is insufficient evidence that their failure to disclose that the Top Hat plan could be terminated was intended to induce Cottey to accept employment. What Appellants have failed to appreciate is that the element of fraud that the representation be made with the intent for it to be relied upon, is not the failure to disclose information that would have modified the representation actually made. The intent required is that the affirmative representation that was made, was made with the intent that Cottey rely upon it. There is no dispute that the affirmative representation regarding the Top Hat plan was made with the intent that Cottey rely upon it.

Damages

Whether Cottey will be allowed to recover an improper measure of damages for fraudulent inducement because of a defective charge is not an easy question to answer. There is no dispute the testimony supported more than $277,000 of damages. But the only way the jury could have arrived at their verdict of $277,000 for damages is to include elements related to future damages which are not recoverable for fraudulent inducement.

We have determined that because there was no objection to the charge as submitted, the defendants cannot complain now that the jury awarded damages which would not otherwise be recoverable for fraudulent inducement. In effect the issue is whether the charge as worded limited the jury s consideration to the damages caused by the fraudulent inducement or whether the jury was allowed to aggregate the testimony regarding any type of damages and award it as damages for fraudulent inducement.

The charge did not require the jury to find that the damages were proximately caused by the fraudulent inducement. The conditional submission of the damages question provided the jury no guidance on what damages they could award based on their finding that Cottey had been fraudulently induced. There was no instruction on what a proper measure of damages for fraudulent inducement would be, nor an instruction limiting the elements of damages that could be included.

Thus, the only limitation on the jury s consideration of what damages they could award was based on the question submitted. The question submitted to the jury was: What sum of money, if paid now in cash, would fairly and reasonably compensate David W. Cottey for the fraudulent inducement by any of the Defendants that you have found committed fraudulent inducement, if any? (emphasis added). For this analysis, the question is: Do the words for the provide any limitation on the elements of damages the jury can award for the fraudulent inducement. They do not.

Thus, the question as worded did not limit the jury s consideration of damages, and because there was no objection to the failure of the charge to limit the jury s consideration to proper elements of damages, the jury could consider evidence of any damages. Wilgus v. Bond, 730 S.W.2d 670, 672 (Tex. 1987); see also Religious of Sacred Heart of Texas v. City of Houston, 836 S.W.2d 606, 614 (Tex. 1992); Cosgrove v. Grimes, 774 S.W.2d 662, 665-66 (Tex. 1989) (Although damages issues defectively submitted, defendant "failed to object to them by distinctly pointing out any error"); Houston Mercantile Exchange Corp. v. Dailey Petroleum Corp., 930 S.W.2d 242, 246-47 (Tex. App. Houston [14th Dist.] 1996, no writ) ( Because the types of damages Dailey was claiming were not specified in its petition, the jury charge or Dailey's jury argument, we have only the evidence presented at trial by which to both identify the types of damages Dailey sought and assess the sufficiency of the evidence supporting those damages. ); American Transfer & Storage Co. v. Reichley, 560 S.W.2d 196, 199-200 (Tex. Civ. App. Amarillo 1977, writ ref'd n.r.e.) ("Unless a party objects to the charge on the ground that it submits an improper measure of damages, he waives the objection and cannot complain on appeal that the charge permitted the jury to find damages based on the wrong measure.").

Conversely, a damage question which does not properly limit the jury s consideration to recoverable damages, when properly objected to, requires reversal. Stewart & Stevenson Services, Inc. v. Serv-Tech, Inc., 879 S.W.2d 89, 101-02 (Tex. App. Houston [14th Dist.] 1994, writ denied); see also Dawson v. Garcia, 666 S.W.2d 254, 261 (Tex. App. Dallas 1984, no writ) ( The Garcias admit, however, that Dawson did voice the following language to the trial court in his objection: Further, because the jury's finding as it's now arranged would be impossible to divide with regard to what portion relates to nonrecoverable items and damage and what-not. ).

With these additional comments I concur in the judgment.

TOM GRAY

Justice

Concurring opinion delivered and filed March 6, 2002

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