TECLOGISTICS, INC. AND JOSEPHINE TREURNIET, Appellants/Cross-Appellees
DRESSER-RAND GROUP, INC., Appellee/Cross-Appellant
Appeal from the 270th District Court Harris County, Texas
Trial Court Cause No. 2012-62247
consists of Justices Christopher, Busby, and Jewell.
appeal from a jury trial on claims of breach of contract and
common-law fraud, both sides appeal the judgment.
TecLogistics, Inc. contends that no evidence supports the
breach-of-contract and fraud damages assessed against it.
Successful claimant Dresser-Rand Group, Inc. argues that the
trial court abused its discretion in failing to submit to the
jury a question on TecLogistics' president Josephine
Treurniet's individual liability for fraud.
agree with TecLogistics that the evidence is legally
insufficient to support the jury's finding of
breach-of-contract damages. The evidence is sufficient,
however, to support the fraud damages assessed against it.
Regarding Dresser-Rand's cross-appeal, we hold that the
trial court did not abuse its discretion in refusing
Dresser-Rand's proposed charge questions regarding
Treurniet's individual liability for fraud.
accordingly modify the judgment to eliminate the award of
damages for breach of contract, and as modified, we affirm
the trial court's judgment.
Group, Inc. manufactures and services compressors and
turbines for the oil and gas industry worldwide. For a number
of years, Dresser-Rand used freight forwarder TecLogistics,
Inc. to arrange for the transportation of parts and supplies
between Dresser-Rand and its customers. In October 2010,
Dresser-Rand sent a letter to its employees requiring them to
use one of two other companies for any international
shipments paid for by Dresser-Rand. In that letter and in
another letter sent directly to TecLogistics, Dresser-Rand
stated that TecLogistics was an "unapproved"
freight forwarder, and that unapproved freight forwarders
would be paid only for services authorized in advance by
specific Dresser-Rand employees.
and its owner and president Josephine Treurniet sued
Dresser-Rand, and Dresser-Rand counterclaimed, but by the
time of trial, only Dresser-Rand's counterclaims for
breach of contract and common-law fraud remained.
in the light most favorable to the verdict, the trial
evidence showed that TecLogistics commonly subcontracted its
work to Pentagon Freight Services, Inc. and included
Pentagon's charges on its own invoices to Dresser-Rand.
Dresser-Rand required TecLogistics to "back up" the
charges by submitting Pentagon's invoices along with its
own. Dresser-Rand paid the passed-through charges, which were
supported by invoices bearing Pentagon's name, address,
and invoice number.
the litigation, however, Dresser-Rand obtained the invoices
directly from Pentagon and found they did not match the
"Pentagon" invoices presented by TecLogistics.
Through four invoices, TecLogistics charged Dresser-Rand a
total of $8, 181.73 for Pentagon's services, and the
figure matched the "Pentagon" invoices TecLogistics
provided. Pentagon's real invoices showed that it had
charged TecLogistics a total of only $2, 300.77 for those
services. Treurniet admitted at trial that she had decided
upon the amount to charge Dresser-Rand for Pentagon's
services and that she had created the false Pentagon invoices
to back up those amounts. In addition to these overcharges,
Dresser-Rand produced evidence that it twice paid the same
TecLogistics invoice for $7, 306.24.
close of evidence, Dresser-Rand moved for directed verdict
against TecLogistics, but the trial court granted the motion
only as to TecLogistics' liability for breach of
contract, leaving damages for the jury to assess. The trial
court additionally submitted to the jury Dresser-Rand's
fraud claim against TecLogistics, but refused
Dresser-Rand's proposed jury question that would have
included Treurniet in the same fraud-liability question with
jury found $7, 306.00 would fairly and reasonably compensate
Dresser-Rand for TecLogistics' breach of contract. The
jury also found TecLogistics liable for fraud and assessed
damages of $5, 881.00 for that claim. In accordance with the
verdict and its charge rulings, the trial court rendered
judgment against TecLogistics for $13, 187.00 and ordered
that Dresser-Rand take nothing on its claims against
Treurniet. After the trial court denied TecLogistics'
motion for judgment notwithstanding the verdict, both sides
issues, TecLogistics argues that Dresser-Rand's voluntary
overpayment of $7, 306.00 is not recoverable as
breach-of-contract damages and cannot be recovered as unjust
enrichment, which was not pleaded. In two additional issues,
TecLogistics argues that there is no evidence of damages from
fraud because any evidence of Dresser-Rand's future loss
of business was speculative, and because Dresser-Rand
mitigated its damages by passing TecLogistics'
overcharges through to Dresser-Rand's
cross-appeal, Dresser-Rand contends that the trial court
abused its discretion in failing to submit its fraud claim
against Treurniet to the jury.
TecLogistics did not object to the jury charge, we analyze
its legal-sufficiency challenges by determining whether the
evidence at trial would have enabled reasonable and
fair-minded jurors following the charge's instructions to
make the challenged findings. See Seger v. Yorkshire Ins.
Co., 503 S.W.3d 388, 406-07 (Tex. 2016). To make this
determination, we review the evidence in the light most
favorable to the verdict and draw all reasonable inferences
in support of the findings. See Ford Motor Co. v.
Castillo, 444 S.W.3d 616, 620-21 (Tex. 2014) (op. on
reh'g) (per curiam) (citing City of Keller v.
Wilson, 168 S.W.3d 802, 821- 22 (Tex. 2005)). Because
the opposing party bore the burden of proof on each of the
challenged findings, we will conclude that the evidence is
legally insufficient only if no more than a scintilla of
evidence supports it. See Burbage v. Burbage, 447
S.W.3d 249, 259 (Tex. 2014).
does not challenge the directed verdict against it regarding
its liability to Dresser-Rand for breach of contract, but
does contend that no evidence supports the contract damages
of $7, 306.00 assessed by the jury and awarded by the trial
court. Dresser-Rand's director of supply-chain management
Caldwell Hart testified that, based on a "Supplier
Payment History Report, " TecLogistics owed Dresser-Rand
that amount. These are not, however, damages caused by
TecLogistics' breach of contract.
Supplier Payment History Report indicates that Dresser-Rand
initially paid a single TecLogistics invoice in the amount of
$7, 306.24. This amount is supported by TecLogistics'
invoice labeled "TEC3168." The Report also shows
that Dresser-Rand later wired nearly $69, 000 to TecLogistics
as payment for several invoices. Hart testified that this
large payment included a second payment of $7, 306.24 for
invoice TEC3168. According to Hart, "we double paid this
invoice." Hart stated that double payments occasionally
happen in companies of Dresser-Rand's size, and that when
this occurs, "[w]e'll typically notify the supplier
and ask to have that money remitted back to us." Hart
admitted, however, that Dresser-Rand did not do so in this
instance, and that, to his knowledge, the overpayment had not
been returned. Based on this evidence, Dresser-Rand's
counsel argued to the jury, "You heard Caldwell Hart
talk about that, $7, 306.24 for the breach of contract that
occurred. You heard him talk about that. We paid twice, you
didn't pay it back, you owe it to us."
the jury was not asked to measure breach-of-contract damages
by the amount by which Dresser-Rand paid an amount greater
than that agreed; the jury was asked to find
Dresser-Rand's "damages, if any, that resulted from
TecLogistics' charging an amount greater than
that agreed." Although there is evidence that
Dresser-Rand paid a single invoice for $7, 306.24 twice,
there is no evidence that TecLogistics charged this amount
sustain this issue and modify the judgment to delete the
award of $7, 306.00 as breach-of-contract damages. We
therefore do not address TecLogistics' remaining argument
about these damages.
on its finding that TecLogistics committed fraud against
Dresser-Rand, the jury was asked to assess damages measured
by "[t]he difference, if any, between the value of the
services provided by Pentagon Freight Services, Inc. to
TecLogistics, and the value of the services fraudulently
claimed by TecLogistics to have been performed by Pentagon
Freight Services, Inc." Based on this instruction, the
jury assessed fraud damages of $5, 881.00.
fraud damages found by the jury are supported by the
evidence. The jury was able to compare Pentagon's real
invoices with TecLogistics' false Pentagon invoices for
the same services. The uncontroverted evidence showed that in
each of four invoices, TecLogistics falsely stated the amount
Pentagon charged, and that Dresser-Rand paid
TecLogistics' invoices containing the inflated charges.
Although Pentagon charged TecLogistics a total of only $2,
300.77 for its services, TecLogistics represented to
Dresser-Rand that Pentagon had charged TecLogistics a total
of $8, 181.73-a difference of $5, 880.96.
agreed at trial that the amounts TecLogistics actually paid
Pentagon are shown only in the real Pentagon invoices. She
also admitted that she chose the amount TecLogistics charged
Dresser-Rand for Pentagon's services and that she created
the false Pentagon invoices TecLogistics sent Dresser-Rand as
support for those charges. Although Treurniet also testified
that she acted in accordance with the instructions of a
Dresser-Rand employee, we must assume that the jury did not
find her testimony credible. See Wilson, 168 S.W.3d
at 819. Because we cannot say that the jury's credibility
determination was itself unreasonable, we must defer to it.
See id. at 820; In re J.P.B., 180 S.W.3d
570, 573 (Tex. 2005) (per curiam).
Treurniet's admissions, TecLogistics challenges the
jury's fraud findings on two grounds. First, TecLogistics
argues that both the jury's fraud-liability finding and
its fraud-damages finding must be reversed because damages
are an essential element of a fraud claim,  and
"speculation about possible future loss of
business" is not evidence of actual damages caused by
fraud. The "speculation about possible future loss of
business" to which TecLogistics refers is Hart's
trial testimony that if Dresser-Rand passed TecLogistics'
false Pentagon invoices on to a customer, then Dresser-Rand
could lose business. As a second ground for reversal,
TecLogistics asserts that Dresser-Rand suffered no actual
monetary loss from the false representations about
Pentagon's charges because Dresser-Rand passed those
charges on to its customers.
arguments fail for the same reason: in reviewing the legal
sufficiency of the evidence to support the fraud-damages
finding, we are bound by the instructions given to the jury
and by the presumption that the jury followed those
instructions. See Seger, 503 S.W.3d at 407. The
charge required the jury consider one measure of damages
"and none other." The charge specified that
Dresser-Rand's fraud damages were equal to the
difference, if any, between (1) the value of Pentagon's
services, and (2) the value of Pentagon's services as
fraudulently claimed by TecLogistics. Thus, the jury could
neither increase the resulting figure by adding the value of
Dresser-Rand's possible future loss of business, nor
decrease it by the extent to which Dresser-Rand was
reimbursed for the inflated charges from a collateral source.
Of course, the jury was also instructed to consider whether
the claimed amounts were "damages . . . that resulted
from such fraud." But this causation requirement also
did not require the jury to deduct any recovery from another
source, as a fraud victim may recover out-of-pocket damages
based on the difference between the value paid and the value
received. See Aquaplex, Inc. v. Rancho La Valencia,
Inc., 297 S.W.3d 768, 775 (Tex. 2009) (per curiam).
the evidence is legally sufficient to support the fraud
damages assessed in accordance with the jury's
instructions, we overrule TecLogistics' issues
challenging the jury's fraud-liability and fraud-damages
findings, and we affirm the portion of the judgment giving
effect to those findings.
sole appellate issue, Dresser-Rand argues that the trial
court improperly refused Dresser-Rand's written request
to submit its proposed jury question (and its accompanying
instructions and definitions) regarding Treurniet's
liability for common-law fraud. We review a trial court's
jury-charge rulings for abuse of discretion. See Sw.
Energy Production. Co. .v Berry-Helfand, 491 S.W.3d 699,
727 (Tex. 2016). Because Dresser-Rand intended to rely on its
proposed question, instructions, and definitions, we will
conclude that the trial court's refusal to submit them
constitutes reversible error only if Dresser-Rand's
question, instructions, and definitions (a) were raised by
the written pleadings and the evidence; (b) were written ...