Court of Appeals of Texas, Fifth District, Dallas
WIN SHIELDS PRODUCTIONS, INC. AND WINFRED L. SHIELDS, Appellants
SERNERICK GREER, Appellee
Appeal from the 191st Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-13-13903
Justices Evans, Stoddart, and Boatright
Shields Productions, Inc. (WSP) and Winfred L. Shields appeal
an adverse judgment for damages for breach of contract and
fraudulent inducement following a jury trial. In twelve
issues, appellants complain the evidence is legally
insufficient to support the fraudulent inducement finding
against Shields, the evidence is factually insufficient to
support the damage findings for breach of contract and
fraudulent inducement, the judgment allows a double recovery
for a single injury, the evidence of attorney's fees was
not properly segregated, and the trial court erred by
allowing improper closing argument and calculating
following reasons, we affirm the trial court's judgment
as to breach of contract damages, but reverse the trial
court's judgment as to fraudulent inducement liability
and damages and as to attorney's fees. We remand the case
for a new trial on the claim for fraudulent inducement and on
attorney's fees. It will be necessary for the trial court
to assess prejudgment interest based on the outcome of the
new trial and appellee's election.
Greer sued WSP for breach of contract and Shields for
fraudulent inducement. WSP is a television production company
formed by Shields in 1992. Shields is the executive producer
and president of WSP. In 2013, Shields contacted Greer to act
in a television pilot WSP was filming. In September of 2013,
after the pilot was finished, Shields asked Greer to join WSP
as an audio producer. Greer testified that Shields told him
WSP was funded, "they had millions, and we were ready to
signed a contract with WSP on September 19, 2013. He quit his
existing jobs and went to work for WSP on September 30, 2013.
The contract provided that Greer would be paid $3, 000 a
week, receive 3, 500 shares of stock in WSP, and have
twenty-five paid days off each year. Additionally, WSP would
pay expenses for business-related meals.
hired Gary Garza to be the CEO of WSP in September of 2013.
Garza testified he met Shields while Garza was working at Boy
Scouts of America. Garza was looking for a change, but did
not want to leave his nineteen-year career at Boy Scouts
unless it was to work for someone he knew and trusted.
Shields told Garza the money was in place and he was ready to
go with building the company. Garza left Boy Scouts and went
to work for WSP.
Miller worked on the pilot for WSP in August of 2013. He
testified that Shields approached him in September about
working full time for WSP. Miller wanted to be sure before he
signed a two-year contract that the company had funding.
According to Miller, Shields "said he had the funding in
place to bring on a full-time staff, " "the company
was funded, we had money in the bank, " and the company
had "$6 million in the bank to cover salaries for  two
years for everyone, regardless of whether we actually sold a
show or a film." Miller signed a contract similar to the
one Greer signed and went to work for WSP on September 30,
and the other employees were not paid on the first payday
after September 30, 2013. Shields sent an e-mail to the
employees explaining there was a problem transferring money
into the correct account because the address on the account
was not the corporate address. The money would not be
transferred until it could be verified the account was not
compromised. Shields said this would make the checks late,
but he hoped to straighten it out "so you can all get
your checks by Friday at least." Greer never received a
next week, Shields sent an e-mail to Greer and the other
employees stating that he was going to Austin to transfer
enough money to cover corporate wages until the end of the
year. He stated that even if there was a hold on the money,
they would be able to pay the first three weeks by October
22, 2013 and the pay the rest of the year on time. On October
23, 2013, Shields sent an e-mail stating that the
"funding I have been working on has not been done the
way I was led to believe it would." He continued,
One of the mistakes I have made is to relate as fact what I
was told. Thereby causing great disappointment. So, I'll
refrain from making any more statements about anything until
after it has happened. I'm still working every day on
this issue and after we are funded, I will contact you
worked for WSP for four weeks, but was never paid. Garza and
Miller also testified they were never paid by WSP. On October
28, 2013, Greer's attorney sent a demand letter to WSP
for payment of the four-week's salary due Greer plus
expenses, and for the 3, 500 shares in the company. Greer
filed suit against WSP for breach of contract on November 21,
2013 and later amended his petition to add a claim for
fraudulent inducement against Shields, individually.
jury found: (1) liability and damages on the breach of
contract and fraudulent inducement claims; (2) Greer's
reasonable and necessary attorney's fees; and (3)
exemplary damages against Shields on the fraudulent
inducement claim. Greer moved for entry of judgment on both
theories of liability and the damages found by the jury.
Appellants opposed the motion, raising the same issues they
raise on appeal. The trial court rendered judgment on the
jury's verdict for damages and attorney's fees on the
breach of contract claim against WSP and for damages and
exemplary damages on the fraudulent inducement claim against
Shields. The trial court denied appellants' motion for
reviewing the legal sufficiency of the evidence, we determine
"whether the evidence at trial would enable reasonable
and fair-minded people to reach the verdict under
review." City of Keller v. Wilson, 168 S.W.3d
802, 827 (Tex. 2005). We review the evidence in the light
most favorable to the verdict, crediting favorable evidence
if a reasonable juror could, and disregarding contrary
evidence unless reasonable jurors could not. Id. A
challenge to the legal sufficiency of the evidence will be
sustained when, among other things, the evidence offered to
establish a vital fact does not exceed a scintilla.
Kroger Tex. Ltd. P'ship v. Suberu, 216 S.W.3d
788, 793 (Tex. 2006). Evidence is more than a scintilla if it
"rises to a level that would enable reasonable and
fair-minded people to differ in their conclusions."
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.
2004). However, evidence does not exceed a scintilla if it is
so weak as to do no more than create a mere surmise or
suspicion that the fact exists. Serv. Corp. Intern. v.
Guerra, 348 S.W.3d 221, 228 (Tex. 2011).
reviewing the factual sufficiency of the evidence, we
consider all the evidence and will set aside the verdict only
if the evidence supporting the jury finding is so weak or so
against the overwhelming weight of the evidence that the
finding is clearly wrong and unjust. Crosstex N. Tex.
Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 615 (Tex.
fourth issue, Shields argues there is no evidence to support
the finding of fraudulent inducement. To establish a claim
for fraudulent inducement of a contract, a plaintiff must
prove (1) the defendant made a material representation, (2)
the representation was false and was either known to be false
when made or made without knowledge of its truth, (3) the
representation was intended to be and was relied upon by the
injured party, and (4) the injury complained of was caused by
the reliance. Nat'l Prop. Holdings, L.P. v.
Westergren, 453 S.W.3d 419, 423 (Tex. 2015) (per
alleged Shields misrepresented that WSP had
"millions" when in fact it did not. Shields argues
there is no evidence to support a finding that the
misrepresentation was material. However, Greer testified he
would not have signed the contract if he knew the company was
not funded. Specifically, Greer testified he had a family and
bills to pay and would not "have left three jobs for
something that offered nothing or for a hope." A
rational jury could conclude from this evidence that
Shields's representation that WSP already had funding to
pay salaries and move forward with its business was a
material representation inducing Greer to enter into the
also argues there is no evidence he knew that WSP had no
intent to perform at the time it entered into the contract.
However, a misrepresentation may be either a false statement
of fact or a promise of future performance made with an
intent not to perform as promised. See Bus. Staffing,
Inc. v. Jackson Hot Oil Serv., 401 S.W.3d 224, 238 (Tex.
App.-El Paso 2012, pet. denied). The jury was so instructed
in this case. Therefore, the jury's finding of fraud is
supported by the evidence that Shields made a false statement
of fact that WSP had funding in place regardless of the state
of the evidence relating to promissory fraud.
overrule Shields's fourth issue.
Damages for ...