Attorneys Fees not recoverable as damages

 
Attorneys' Fees are not considered damages and not recoverable as such; contract or statute must authorize fee award

Texas law distinguishes between the recovery of attorneys' fees as actual damages and recovery of attorneys' fees incident to the recovery of other actual damages. Worldwide Asset Purchasing, L.L.C. v. Rent-a-Center East, Inc., 290 S.W.3d 554, 570 (Tex. App.-Dallas 2009, no pet.). A party may recover attorneys' fees only as provided by contract or statute. Id.; Burnside Air Conditioning & Heating, Inc. v. T.S. Young Corp., 113 S.W.3d 889, 898 (Tex. App.-Dallas 2003, no pet.). As a general rule, attorneys' fees are not recoverable as damages in and of themselves. See, e.g., Tana Oil & Gas Corp. v. McCall, 104 S.W.3d 80, 82 (Tex. 2003); Imagine Automotive Group, Inc. v. Boardwalk Motor Cars, L.L.C., 356 S.W.3d 716, 718 (Tex. App.-Dallas 2011, no pet.); Haden v. David J. Sacks, P.C., 332 S.W.3d 503, 521 (Tex. App.-Houston [1st Dist.] 2009, pet. denied); Worldwide Asset Purchasing, 290 S.W.3d at 570; see also Quest Communications Int'l, Inc. v. AT & T Corp., 114 S.W.3d 15, 35-36 (Tex. App.-Austin 2003) (damages measured by plaintiff's attorneys' fees recoverable only under certain exceptions not implicated here), rev'd in part on other grounds, 167 S.W.3d 324 (Tex. 2005) (per curiam).

A party relying on assertions of non-recoverable damages alone, such as attorneys' fees and expenses sustained in defending a lawsuit and prosecuting a counterclaim, has presented a legal barrier to any recovery. See Tana, 104 S.W.3d at 82 (damages described in terms of "value of time spent" and "costs incurred" in defending lawsuit were non-recoverable, even if party seeking such damages could have proven all other elements of claim for tortious interference); Eberts v. Businesspeople Personnel Servs., Inc., 620 S.W.2d 861, 863 (Tex. Civ. App.-Dallas 1981, no writ) ("[e]xpenses of litigation are not recoverable as damages unless expressly provided by statute or contract," and "[t]his rule applies to a litigant's loss of time"); Phillips v. Latham, 523 S.W.2d 19, 27 (Tex. Civ. App.-Dallas 1975, writ ref'd n.r.e.) ("the only time lost from work by either of the plaintiffs . . . was time lost because of the pendency of the lawsuit, such as that required for depositions and attendance at the two trials in this case. This loss is an expense of litigation. We know of no authority supporting recovery of actual damages for such a loss . . . ."); see also Haden v. David J. Sacks, P.C., 222 S.W.3d 580, 597 (Tex. App.-Houston [1st Dist.] 2007 (op. on reh'g), rev'd on other grounds, 266 S.W.3d 447 (Tex. 2008) (per curiam). This is true even if all other elements of the party's claim are proven. See Tana, 104 S.W.3d at 82; Consumer Portfolio Servs, Inc. v. Obregon, No. 13-09-00548-CV, 2010 WL 4361765, at *9 (Tex. App.-Corpus Christi Nov. 4, 2010, no pet.) (mem. op.).

SOURCE: DALLAS COURT OF APPEALS - 05-11-01718-CV - 1/30/2014.
CASE STYLE: Woodhaven Partners Ltd v. Shamoun & Norman LLP

How to establish damages for temporary injury to real property

What is the proper measure of damages on a successful claim predicated on non-permanent injury to real property?

"In the case of a temporary injury to real estate, the measure of damages is ordinarily the cost and expense of restoring the land to its former condition, plus the loss or damages occasioned by being deprived of the use of same, with interest." Vaughn v. Drennon, 372 S.W.3d 726, 738 (Tex. App.-Tyler 2012, no pet.); see also Meridien Hotels, Inc. v. LHO Fin. P'ship I, L.P., 255 S.W.2d 807, 821 (Tex. App.-Dallas 2008, no pet.). Felder and Esperanza concede that the record contains no evidence to support the damage award, but appear to believe Esperanza is entitled to a remand for a new trial on this claim.

Because Hagee and Serengeti raised this issue in a motion for judgment notwithstanding the verdict and they assert a no evidence challenge on appeal, they are entitled to a rendition of the judgment, rather than a remand of the cause. See E-Z Mart Stores, Inc. v. Ronald Holland's A-Plus Transmission & Auto., Inc., 358 S.W.3d 665, 670 (Tex. App.-San Antonio 2011, pet. denied); but see Graves v. Tomlinson, 329 S.W.3d 128, 141 n.2 (Tex. App.-Houston [14th Dist.] 2010, pet. denied) (noting party entitled to remand rather than rendition if legal sufficiency issue preserved only by motion for new trial).

Accordingly, because there is no evidence to support the jury's damage award, the trial court's judgment regarding the trespass claim is reversed, and judgment is rendered that Esperanza take nothing as to the trespass claim.

SOURCE: SAN ANTONIO COURT OF APPEALS - No. 04-12-00434-CV - 1/22/2014
SERENGETI RESORT, LLC v. ESPERANZA PROPERTIES, LP ET AL

Plaintiffs prevented from double-dipping on damages claims under the one-satisfaction rule

THE ONE-SATISFACTION RULE  

The one-satisfaction rule is the longstanding proposition that precludes a plaintiff from recovering twice for the same injury. Utts v. Short, 81 S.W.3d 822, 831 (Tex. 2002) (citing Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex. 2000)); Galle, 262 S.W.3d at 573. The rule applies when several defendants commit the same act and when multiple defendants commit technically different acts that result in a single injury. Crown Life, 22 S.W.3d at 390; Galle, 262 S.W.3d at 573. 
  
The one-satisfaction rule guards against a plaintiff's "receiving a windfall `by recovering an amount in court that covers the plaintiff's entire damages, but to which a settling defendant has already contributed.'" Galle, 262 S.W.3d at 573 (quoting Osborne v. Jauregui, 252 S.W.3d 70, 75 (Tex. App.-Austin 2008, pet. denied) (en banc)).

SOURCE: AUSTIN COURT OF APPEALS - 03-10-00499-CV – 8/23/2013  

The American Rule applies in Texas courts (regarding award of attorney's fees in a lawsuit)

THE AMERICAN RULE GOVERNS RECOVERABILITY OF ATTORNEYS' FEES IN LITIGATION

Texas follows the American Rule, meaning that attorney’s fees can only be awarded as part of the judgment if a contract or statute provides for them

Whether a party may recover reasonable attorney's fees is a question of law for the trial court which we review de novo. Brent v. Field, 275 S.W.3d 611, 621 (Tex. App.-Amarillo 2008, no pet.) (citing Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94, 95 (Tex. 1999)). 
  
It has long been the rule in Texas that attorney's fees paid to prosecute or defend a lawsuit cannot be recovered in that suit absent a statute or contract that allows for their recovery. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310-11 (Tex. 2006) ("Absent a contract or statute, trial courts do not have inherent authority to require a losing party to pay the prevailing party's fees."); Wm. Cameron & Co. v. Am. Sur. Co. of N.Y., 55 S.W.2d 1032, 1035 (Tex. Comm'n App. 1932, judgm't adopted) ("It is settled law in this state that, unless provided for by statute or by contract between the parties, attorneys' fees incurred by a party to litigation are not recoverable against his adversary either in an action in tort or a suit upon a contract."); Sherrick v. Wyland, 14 Tex. Civ. App. 299, 37 S.W. 345, 345 (Tex. Civ. App. 1896) ("It has often been ruled, in this state and elsewhere, that fees of counsel, incurred in prosecuting a suit for or defending against a wrong, are not ordinarily recoverable as actual damages, because they are not considered proximate results of such wrong."). The rule is known as the American Rule. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health and Human Res., 532 U.S. 598, 602, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001) ("[P]arties are ordinarily required to bear their own attorney's fees—the prevailing party is not entitled to collect from the loser.").

SOURCE:  WACO COURT OF APPEALS - 10-12-00241-CV – 8/8/2013  Pharia, LLC v Childers (Trial court erred in awarding attorney's fees; court of appeals reverses portion of the judgment that awarded the attorney's fees and renders a take-nothing judgment on that claim, but otherwise affirms). 

ATTORNEYS FEES NOT RECOVERABLE AS ACTUAL DAMAGES 

Texas has long followed the "American Rule," which prohibits an award of attorney's fees unless specifically provided by contract or statute. MBM Fin. Corp. v. The Woodlands Operating Co., 292 S.W.3d 660, 6693d (Tex. 2009).

Here, there is no contract between the parties, and Sherman does not seek attorney's fees under any statutory provision. Rather, he contends that because Wein filed a fraudulent lawsuit against him, causing him to expend money in attorney's fees and expenses, he is entitled to recover those fees and expenses as actual damages.

Attorney's fees, however, are ordinarily not recoverable as actual damages in and of themselves. See Tana Oil & Gas Corp. v. McCall, 104 S.W.3d 80, 81-82, 83 (Tex. 2003) (attorney plaintiffs who sought to recover damages based solely on value of time and costs incurred in defending claims had not suffered actual damages and were not entitled to only damages they claimed; plaintiffs should have pursued attorney's fees as sanctions under Rule 13 or Chapter 10); Worldwide Asset Purchasing, L.L.C. v. Rent-a-Center East, Inc., 290 S.W.3d 554, 570 (Tex. App.-Dallas 2009, no pet.) (attorney's fees not recoverable as actual damages); Haden v. David J. Sacks, P.C., 222 S.W.3d 580, 597 (Tex. App.-Houston [1st. Dist.] 2007) (same), rev'd on other grounds, 266 S.W.3d 447 (Tex. 2008); Quest Commc'ns Int'l, Inc. v. AT&T Corp., 114 S.W.3d 15, 35-36 (Tex. App.-Austin 2003) (damages measured by plaintiff's attorney's fees recoverable only under certain exceptions not implicated here), rev'd in part on other grounds, 167 S.W.324 (Tex. 2005) (per curiam).

Because Sherman neither sought nor proved any damages other than attorney's fees, there is no evidence to support the actual damage element of any of his asserted claims, and the district court did not err in granting summary judgment in Wein's favor. We overrule Sherman's cross-issue.

SOURCE: AUSTIN COURT OF APPEALS - 03-10-00499-CV – 8/23/2013  

Physical vs. psychological pain as elements of damages in tort case

physical pain and mental anguish as separate elements of damages  

Courts have held that physical pain and mental anguish are in fact separate and distinct elements of damage for personal injuries. See SunBridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 248 (Tex.App.-Texarkana 2005, no pet.); Leyendecker v. Harlow, 189 S.W.2d 706, 711 (Tex.Civ.App.-Galveston 1945, writ ref'd w.o.m.); see also Sw. Tex. Coors, Inc. v. Morales, 948 S.W.2d 948, 954 (Tex.App.-San Antonio 1997, no writ) (Green, J., concurring).

SOURCE:  EL PASO COURT OF APPEALS - 08-10-00261-CV – 2/15/2012 

Nowak also points out that the Texas Pattern Jury Charges place physical pain and mental anguish together as one element of damages. The pattern charges serve as a guide only and are not binding on trial courts. See Styers v. Schindler Elevator Corp., 115 S.W.3d 321, 325-26 (Tex.App.-Texarkana 2003, pet. denied). Given that physical pain and mental anguish are separate elements of damage, the court did not abuse its considerable discretion in submitting them that way, rather than following the pattern charge.

We also note that the jury was instructed to "[c]onsider each element separately" and not to "award any sum of money on any element if you have otherwise, under some other element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any." The Texas Supreme Court has approved this type of instruction. See Golden Eagle, 116 S.W.3d at 770-71. Unless the record indicates otherwise, we presume the jury followed the instruction. See id. at 771.

SOURCE:  EL PASO COURT OF APPEALS - 08-10-00261-CV – 2/15/2012 

Proving Lost Profits as a Category of Damages in a Lawsuit

     
GENERAL RULE REGARDING PROOF OF LOST PROFITS   
  

The general rules regarding adequate evidence of lost profit damages are well known:

 

Recovery for lost profits does not require that the loss be susceptible of exact calculation. However, the injured party must do more than show that they suffered some lost profits. The amount of the loss must be shown by competent evidence with reasonable certainty. What constitutes reasonably certain evidence of lost profits is a fact intensive determination. As a minimum, opinions or estimates of lost profits must be based on objective facts, figures, or data from which the amount of lost profits can be ascertained. Although supporting documentation may affect the weight of the evidence, it is not necessary to produce in court the documents supporting the opinions or estimates.

  

Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex. 1992) (citations omitted); see also ERI Consulting Eng'rs, Inc. v. Swinnea, 318 S.W.3d 867, 876 (Tex. 2010) (citing Holt Atherton). The injured party must do more than show it suffered “some” lost profits. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 504 (Tex. 2001). Lost profits are damages for the loss of net income to a business and, broadly speaking, reflect income from lost business activity, less expenses that would have been attributable to that activity. Bowen v. Robinson, 227 S.W.3d 86, 96 (Tex. App.--Houston [1st Dist.] 2006, pet. denied). The calculation of lost profits must be based on net profits, not gross revenues. Holt Atherton, 835 S.W.2d at 83 n.1; Texaco, Inc. v. Phan, 137 S.W.3d 763, 771 (Tex. App.--Houston 2004, no pet.).

  

SOURCE: DALLAS COURT OF APPEALS – 05-10-00777-CV – 4/27/2012

 

In this appeal, [Appellant] asserts [Plaintiff] presented no evidence from which the jury could determine lost profits with any reasonable certainty. We agree. [Plaintiff] did not present any expert testimony regarding lost profits nor did it provide a damage model to the jury or otherwise inform the jury how it should determine lost profits, and our own review of the record does not reveal any objective facts, figures, or data from which lost profits could have been determined with reasonable certainty.

Does slander per se require proof of damages? Salinas v. Salinas, No. 11-0131 (Tex. April 20, 2012)

  

DAMAGES IN PER SE DEFAMATION CASE - If not merely nominal, what amount? 

Texas Supreme Court has this to say in case in which it reversed a $30,000 appellate court judgment in favor of defamation plaintiff this morning:   

“Our law presumes that statements that are defamatory per se injure the victim’s reputation and entitle him to recover general damages, including damages for loss of reputation and mental anguish.” Bentley v. Bunton, 94 S.W.3d 561, 604 (Tex. 2002) (plurality opinion). However, even if some mental anguish can be presumed in cases of defamation per se, and if we assume the Telemundo statement was defamatory per se, the law does not presume any particular amount of damages beyond nominal damages.2

2 We need not decide whether Norberto would have been entitled to nominal damages for slander per se if he had requested them. He did not request such an award from the trial court and did not request that the jury be instructed to award at least nominal damages. We note, however, that courts have not resolved this issue in an entirely consistent manner. See Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc. 219 S.W.3d 563, 584–85 n.22 (Tex. App.—Austin 2007, pet. denied) (discussing cases

See Denton Publ’g Co. v. Boyd, 448 S.W.2d 145, 147 (Tex. Civ. App.—Fort Worth 1969) (holding that a plaintiff in a libel per se case is entitled to nominal damages and “such actual damages as might be shown to be the proximate result of the publication”), aff’d, 460 S.W.2d 881 (Tex. 1970); Tex. Disposal Sys., 219 S.W.3d at 584 (stating that in cases of defamation per se, “the amount of actual general damages remains a question for the jury”); Adolf Coors Co. v. Rodriguez, 780 S.W.2d 477, 488 (Tex. App—Corpus Christi 1989, writ denied) (noting that under presumption of damages applicable to libel per se, damages “are within the jury’s discretion, are purely personal, and cannot be measured by any fixed rule or standard”); Bradbury v. Scott, 788 S.W.2d 31, 39 (Tex. App.—Houston [1st Dist.] 1989), writ denied) (holding, in case of libel per se, “where the amount of the actual damages is not capable of definite ascertainment, and prima facie liability is established, the determination of the amount is necessarily lodged in the discretion of the jury”); Freeman v. Schwenker, 73 S.W.2d 609, 611 (Tex. Civ. App.—Austin 1934, no writ) (same).

SOURCE: TEXAS SUPREME COURT – Salinas v. Salinas, No. 11-0131 – 4/20/12

There is, in short, no jury verdict in support of an award of damages of $30,000 or any other amount for the Telemundo statement, and the court of appeals could not sua sponte make its own award of damages. See Freeman, 73 S.W.2d at 611 (holding, in libel per se case, that “[i]t is a well-settled rule that, where a case is submitted to a jury . . . judgment of the court must be rendered upon the verdict returned”); see also Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (holding that appellate court could not review sufficiency of evidence under a legal standard that was not submitted to the jury if no party objected to failure to charge jury under the standard). Even if mental anguish can be presumed, the determination of the amount of mental anguish damages is an inquiry left to the finder of fact. We therefore agree with Maria that the court of appeals was not authorized to award $30,000 in mental anguish damages for the Telemundo statement, without a damages finding by the jury supporting such an award.

SOURCE: SUPREME COURT OF TEXAS – Maria Ester Salinas vs. Norberto Salinas, No. 11-0131 – 4/20/12 

Can home owner offer valid testimony on reasonable cost or value of repairs?

  
Testimony to support or challenge reasonble and necessary & costs of repair: Exception to the Property Owner Rule

Eastland Court of Appeals says property owners not qualified to opine on repair cost even if qualified to offer opinion on the value of the property itself under the property owner rule; Rule does not cover repairs; expert testimony it therefore required.    
A party seeking to recover damages measured by the cost of repair must present competent evidence so that the trier of fact is justified in finding that the repairs are necessary to restore the property to its former condition and that the cost of repairs is reasonable and fair. See Hernandez v. Lautensack, 201 S.W.3d 771, 776-77 (Tex. App.—Fort Worth 2006, pet. denied); Ebby Halliday Real Estate, Inc. v. Murnan, 916 S.W.2d 585, 589 (Tex. App.—Fort Worth 1996, writ denied); Liptak v. Pensabene, 736 S.W.2d 953, 958 (Tex. App.—Tyler 1987, no writ). The magic words “reasonable” and “necessary” need not be used as long as there is sufficient evidence for the trier of fact to conclude that the repairs are necessary and the cost is reasonable. Ron Craft Chevrolet, Inc. v. Davis, 836 S.W.2d 672, 677 (Tex. App.—El Paso 1992, writ denied); Carrow v. Bayliner Marine Corp., 781 S.W.2d 691, 694 (Tex. App.—Austin 1989, no writ).

Some courts have held that evidence pertaining to the necessity and reasonableness of repair costs falls within the exclusive domain of an expert. See Legacy Motors, LLC v. Bonham, No. 02-07-00065-CV, 2007 WL 2693863, at *4 (Tex. App.—Fort Worth Sept. 13, 2007, no pet.) (mem. op.); Ha v. W. Houston Infiniti, Inc., No. 01-94-00884-CV, 1995 WL 516993, at *2 (Tex. App.—Houston [1st Dist.] Aug. 31, 1995, writ denied) (op. on reh’g) (not designated for publication); see also Executive Taxi/Golden Cab v. Abdelillah, No. 05-03-01451-CV, 2004 WL 1663980, at *1 (Tex. App.—Dallas July 19, 2004, pet. denied) (mem. op.) (stating that an estimate without the testimony of the person making the estimate or other expert testimony is no evidence of the necessity of the repair or the reasonableness of the costs of the repair) (citing Jordan Ford, Inc. v. Alsbury, 625 S.W.2d 1, 3 (Tex. Civ. App.—San Antonio 1981, no writ)). As a general rule, matters involving specialized or technical knowledge require expert testimony. See FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 90-91 (Tex. 2004). The necessity of subsequent, total roof replacements performed immediately after the work performed by and on behalf of Wortham Bros. and the reasonableness of the cost of the subsequent roof replacements are matters of a specialized and technical nature. Accordingly, we conclude that expert testimony was required to establish the necessity and reasonableness of the subsequent roof replacements.

We disagree with the trial court’s determination that the Haffners’ status as property owners qualifies them to offer an opinion on the necessity and reasonableness of repair costs. Under the “Property Owner Rule,” a property owner is generally qualified to testify as to the value of his or her property even if he or she is not an expert and would not be qualified to testify as to the value of other property. Reid Road Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 852-53 (Tex. 2011); see Porras v. Craig, 675 S.W.2d 503, 504 (Tex. 1984). This rule is based on the presumption that an owner will be familiar with his or her own property and know its value. Reid Road Mun. Util. Dist. No. 2, 337 S.W.3d at 853. This presumption does not extend to the reasonable cost of repairing the owner’s property particularly when those repairs are of a technical or specialized nature.

SOURCE: Eastland Court of Appeals - 11-09-00190-CV - 7/28/11

We disagree with the trial court’s determination that the Haffners’ status as property owners qualifies them to offer an opinion on the necessity and reasonableness of repair costs. Under the “Property Owner Rule,” a property owner is generally qualified to testify as to the value of his or her property even if he or she is not an expert and would not be qualified to testify as to the value of other property. Reid Road Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 852-53 (Tex. 2011); see Porras v. Craig, 675 S.W.2d 503, 504 (Tex. 1984). This rule is based on the presumption that an owner will be familiar with his or her own property and know its value. Reid Road Mun. Util. Dist. No. 2, 337 S.W.3d at 853. This presumption does not extend to the reasonable cost of repairing the owner’s property particularly when those repairs are of a technical or specialized nature.

The Economic Loss Rule

SIGNIFICANCE OF THE ECONOMIC LOSS RULE

Texas Supreme Court cite on economic loss rule:

The economic-loss rule generally precludes recovery in tort for economic losses resulting from the failure of a party to perform under a contract. Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 12 (Tex. 2007).

When the only loss or damage is to the subject matter of the contract, the plaintiff’s action is ordinarily on the contract. Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494 (Tex. 1991).

SOURCE: Houston Court of Appeals - 14-10-00351-CV - 6/30/11


RELATED LEGAL CONCEPTS: breach of contract vs. tort, contractual obligations vs. obligations imposed by law, contract and non-contract causes of action

Defamation damages: Putting a dollar value on impairment of good name and reputation as a result of libel or slander

PROVING DEFAMATION DAMAGES IN AN ACTION FOR LIBEL OR SLANDER 

General vs. specific damages 

Compensatory damages allowable for defamation are divided into two categories: general and special. Peshak v. Greer, 13 S.W.3d 421, 427 (Tex.App.-Corpus Christi 2000, no pet.).    


General damages include mental anguish, loss of reputation, and like damages that naturally flow from the defamation and are not easily susceptible to monetary valuation.  Id.  General damages are those conclusively presumed to have been foreseen by the defamer as a necessary and usual result of his or her wrongful act.  Fox v. Parker, 98 S.W.3d 713, 726 (Tex.App.--Waco 2003, pet. denied) (citing Arthur Anderson & Co. v. Parker Equip. Co., 945 S.W.2d 812, 816 (Tex. 1997)).

Defamation Per Se damages

"The law presumes a statement which is libelous per se defames a person, injures his reputation"; id., and causes mental anguish.  Ryder Truck Rentals, Inc. v. Latham, 593 S.W.2d 334, 337 (Tex.Civ.App.--El Paso 1979, writ ref'd n.r.e.) (general damages for injury to character, reputation, feelings, mental suffering or anguish, or other wrongs not susceptible to monetary valuation are presumed); Peshak, 13 S.W.3d at 427 ("In actions of libel per se, the law presumes the existence of some actual damages, requiring no independent proof of general damages.")  Because the damages are presumed, "there need be no inquiry in the [jury] charge about whether there was a defamation or about 'proximate cause' and injury (or the jury may be instructed to so find.”)  Fox, 98 S.W.3d at 726.      

            

Further, because the damages are purely personal and cannot be measured by any fixed rule or standard, the amount of general damages suffered in a defamation case is difficult to determine.  First State Bank of Corpus Christi v. Ake, 606 S.W.2d 696, 702 (Tex.Civ.App.--Corpus Christi 1980, writ ref'd n.r.e.) (citing Bayoud v. Sigler, 555 S.W.2d 913 (Tex.Civ.App.--Beaumont 1977, writ dis'md)).  Thus, because of their uncertain nature, their measurement is generally left to the discretion of the finder of fact, subject only to a determination that the award was clearly excessive or the result of "passion, prejudice, or other improper influences."  See Morrill, 226 S.W.3d at 550 (citing Bolling, 671 S.W.2d at 549).  See also Tranum v. Broadway, 283 S.W.3d 403, 422 (Tex.App.--Waco 2008, pet. denied). 

SOURCE: Amarillo Court of Appeals - 07-09-00277-CV - 6/16/11

EXCERPTS FROM CITED CASE: Peshak v. Greer, 13 S.W.3d 421 (Tex.App.-Corpus Christi 2000, no pet.)


In both libel and slander the issues are whether the utterance was made, if it was false, if it damaged the complainant and if the speaker had any privilege. RESTATEMENT (SECOND) OF TORTS § 558 (1977); c.f.Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 921 (Tex.App.-Corpus Christi 1991, writ dism'd w.o.j.). Whether the defendant intended to say or print the defamatory words is not an element of the cause of action unless privilege is involved. See Express Pub. Co. v. Lancaster, 2 S.W.2d 833, 834 (Tex.Comm.App. 1928) (holding defamation defendant is liable irrespective of his innocent motives in publishing the defamatory statement); Hornby v. Hunter, 385 S.W.2d 473, 476 (Tex.Civ.App.-Corpus Christi 1964, no writ) (holding that even innocent, mistaken publication still subjects defamer to liability); 50 Tex. Jur. 3d Libel & Slander, § 12, at 33 (1986) (noting that intent is not an element of defamation). We assume the words were intended because they were used. When the jury found Peshak defamed Greer and what he said was false, it found by inference that he intended to write the letters found to be defamatory.


The issue is whether exemplary damages may be awarded if the defamatory statement is made intentionally or willfully. Punitive damages are available in defamation cases based upon the same rules governing punitive damage awards for all torts. Nabours v. Longview Sav. & Loan Ass'n., 700 S.W.2d 901, 903 n. 1 (Tex.1985). The supreme court has held that a plaintiff must prove the statements were made maliciously to justify exemplary damages in a defamation case. See Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 375 (Tex. 1984). Civil Practice and Remedies Code section 41.003 provides that exemplary damages may only be awarded if the claimant proves by clear and convincing evidence that the harm resulted from fraud or malice. See TEX. CIV. PRAC. & REM.CODE ANN. § 41.003(a) (Vernon 1997).[1]


We hold that exemplary damages in a defamation case between private litigants that does not involve privilege can only be supported if the utterance was made with malice. That the statements were made willfully or intentionally will not justify exemplary damages.


This case does not involve a media defendant. The rule of Gertz v. Robert Welch, Inc., 418 U.S. 323, 347, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), requiring fault in a defamation action against a publisher or broadcaster for a defamatory statement about a private individual, is not applicable. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).


Compensatory damages allowable for defamation are divided into two categories: general and special. General damages are mental anguish, injury to the reputation and the like that naturally flow from the libel and are not easily susceptible to monetary valuation. West Texas Utilities Co. v. Wills, 164 S.W.2d 405, 412 (Tex.Civ.App.-Austin 1942, no writ); Evans v. McKay, 212 S.W. 680, 685 (Tex.Civ. App.-Dallas 1919, writ dism'd); see also Leyendecker, 683 S.W.2d at 374.


In actions of libel per se, the law presumes the existence of some actual damages, requiring no independent proof of general damages. See Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 922 (Tex.App.-Corpus Christi 1991, writ dism'd w.o.j.); Adolph Coors Co. v. Rodriguez, 780 S.W.2d 477, 488 (Tex. App.-Corpus Christi 1989, writ denied); City of Brownsville v. Pena, 716 S.W.2d 677, 682 (Tex.App.-Corpus Christi 1986, no writ); First State Bank v. Ake, 606 S.W.2d 696, 702 (Tex.Civ.App.-Corpus Christi 1980, writ ref'd n.r.e.). The amount of general damages is very difficult to determine, and the jury is given wide discretion in its estimation of them. Evans, 212 S.W. at 685; Wills, 164 S.W.2d at 412.


LOST EARNINGS CAPACITY 


Lost earning capacity is a form of special damages, Missouri Pac. Ry. Co. v. Richmond, 73 Tex. 568, 11 S.W. 555, 558 (1889); Houston Belt & Terminal Ry. Co. v. Wherry, 548 S.W.2d at 743, 753 (Tex. Civ.App.-Houston [1st Dist.] 1976, writ ref'd n.r.e.), and must be specifically stated and proved. Kelly v. Diocese of Corpus Christi, 832 S.W.2d 88, 91 (Tex.App.-Corpus Christi 1992, writ dism'd w.o.j.); Vista Chevrolet, Inc. v. Barron, 698 S.W.2d 435, 441 (Tex.App.-Corpus Christi 1985, no writ). Although the amount of damages for lost earning capacity is largely within the discretion of the jury, Fowler v. Pedlar, 497 S.W.2d 399, 401 (Tex.Civ.App.-Houston [1st Dist.] 1973, no writ), the plaintiff is required to prove his lost earning capacity "with that degree of certainty to which the case is susceptible...." McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712 (1943).


RELATED LEGAL TERMS: defamation, libel, slander, reputational damage, damage to good name, reputation, business goodwill, standing in the community, mental, psychological, emotional distress, embarrassment

Mental anguish damages

How to properly prove mental anguish damages An award of mental anguish damages will survive a legal sufficiency challenge when the plaintiff has introduced (1) "direct evidence of the nature, duration, or severity of [plaintiff's] anguish, thus establishing a substantial disruption in the plaintiff's daily routine"; or (2) other evidence of "a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger." Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). Direct evidence may be in the form of the parties' own testimony, that of third parties, or experts. Id. "There must also be some evidence to justify the amount awarded"; Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996), and the amount awarded must be fair and reasonable. Id. SOURCE: Generally, an award of mental anguish damages must be supported by direct evidence that the nature, duration, and severity of mental anguish was sufficient to cause, and caused, either a substantial disruption in the plaintiff’s daily routine or a high degree of mental pain and distress. Bentley v. Bunton, 94 S.W.3d 561, 606 (Tex. 2002). Citing Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995) SOURCE: Tex. 2011 - 6/17/11 Service Corporation International [SCI] v. Guerra, No. 09-0941 (Tex. Jun 17, 2011)(Opinion by Phil Johnson) (insufficienct evidence of mental anguish damages)

Proof of damages for default judgment purposes: proving up liquidated vs. unliquidated damages

WHAT IS CONSIDERED ESTABLISHED WITHOUT A NEED FOR PROOF IN THE DEFAULT JUDGMENT CONTEXT?

In a no-answer default judgment, the failure to file an answer operates as an admission of the material facts alleged in the petition, except as to unliquidated damages. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992).
 
A claim for damages is liquidated if the amount of damages can accurately be calculated by the court from the factual, as opposed to the conclusory allegations in the petition and written instruments. Argyle Mech., Inc. v. Unigus Steel, Inc., 156 S.W.3d 685, 687 (Tex. App.-Dallas 2005, no pet.); see also Novosad v. Cunningham, 38 S.W.3d 767, 773 (Tex. App.-Houston [14th Dist.] 2001, no pet.) (suit to recover amount due for professional services was liquidated claim proved by written instruments where plaintiff attached original instruments to verified petition and motion for default judgment).
 
When damages are unliquidated, the judge must “hear” evidence on the damages. See Argyle Mech., Inc., 156 S.W.3d at 687; see also Tex. R. Civ. P. 243. In contrast, “if the claim is liquidated and proved by an instrument in writing, the damages shall be assessed by the court, or under its direction, and final judgment shall be rendered therefor . . . .” Tex. R. Civ. P. 241.
 
SOURCE: DALLAS COURT OF APPEALS - 05-07-01449-CV (credit card debt suit)