Preview
Filed
11 October 28 P4:10
Gary Fitzsimmons
District Clerk
Dallas District
CAUSE NO. 04-01100-M
CRAIG DYER, IN THE DISTRICT COURT OF
Plaintiff
Vv. 298" JUDICIAL DISTRICT
DYER CUSTOM INSTALLATION, INC.
(DCI), JOSEPH GEETING, SUSAN
LAMBERT, LARRY DYER and
RICHARD GEETING
Defendants DALLAS COUNTY, TEXAS
PRO PLUMBING & APPLIANCE IN THE DISTRICT COURT
INSTALLATION, INC. f/k/fa DYER
CUSTOM INSTALLATION, INC.
Plaintiff,
vs. 298" JUDICIAL DISTRICT
CRAIG DYER, MELISA CONTRERAS
and THE ESTATE OF LARRY DYER
Defendants, DALLAS COUNTY, TEXAS
PLAINTIFF’S RESPONSE TO MOTION FOR JUDGMENT NOTWITHSTANDING THE
VERDICT
COMES NOWPLAINTIFF, CRAIG DYER (“Dyer”) individually and on behalf of
Dyer Custom Installation, Inc., and responds in opposition to the Defendants’ Motion for
Judgment Notwithstanding the Verdict (the “Motion for JNOV”) and shows the Court as
follows:
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I
INTRODUCTION
A. The Defendants’ Request
The Defendants, Dyer Custom Installation, Inc. (“DCI”) and its former or current
officers and directors, Joseph Geeting (“Geeting”), Richard Geeting (“R. Geeting”) and
Lauri Geeting (“L. Geeting”), ask this Court to set aside a jury verdict in favor of Dyer and
DCI.'More specifically, the Defendants request a judgment notwithstanding the verdict (a
“JNOV’”) on the following findings of the jury: Questions 1-3 and 5-7 (related to the 80/20
Agreement between Dyer and Geeting, Geeting’s failure to comply, Dyer’s performance
and Geeting’s preventing Dyer from tendering same, the market value of the stock of DCI
in February 2004, and damages for Geeting’s failure to comply)”; Questions 8-9
(Geeting’s fraudulent inducement of Dyer into the December 2002 Agreement and
damages)*; Questions 10-11 (Geeting’s statutory fraud regarding the transfer of 10
shares of DCI and damages); Questions 18-21 (each of Defendants’ breaches of
fiduciary duty to DCI and damages for same); Question 23 (related to Geeting’s profit for
his breach of fiduciary duty); Questions 25-26 (related to conversion by Geeting as to DCI
and damages to DCI from Geeting); Question 27 (related to attorneys’ fees); and
Question 38 (related to the finding of no damages against Dyer as to conversion).
4 The conflict of interest between DCI and its former officers and directors who have breached their
fiduciary duties to DCI is evident here when DCI’s lawyer is asking (on behalf of DCI) the Court to enter a
JNOV against it and in favor of the officers and/or directors who breached their fiduciary duties to DCI.
2 The 80/20 Agreement was the agreement Dyer alleged he had with Geeting for the right to purchase
from Geeting 60% of the shares of DCI owned by Geeting at the expiration of 3 years.
3 The December 2002 Agreement was the agreement relating to the restructuring of the ownership of
DCI's shares.
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B. Defendants’ “Introduction” distorts the facts.
The Defendants’ “Introduction” in its motion for JNOV, like many of the other filings
by the Defendants throughout this litigation, contains numerous mischaracterizations and
distortions, some of which the Plaintiff will briefly address here. First, the Defendants
claim that Plaintiff ignored the Court's Scheduling Orders and Tex. R. Civ. P. 63 in filing its
Second and Third Amended Petitions, while at the same time relying upon those
pleadings which would “ignore that same scheduling order.”
Purportedly, Plaintiffs 2009 amendments “changed the landscape of the original
lawsuit and ultimately resulted in both surprise and prejudice to Defendants, which in turn
resulted in a jury charge that incorporated new causes of action asserted for the first
time.” This is simply not the case. As the Court is well aware, since Plaintiffs First
Amended Petition filed in this case in 2005, the facts pled in the case have remained
virtually identical, including the allegation “That Plaintiff would enter into a shareholder's
agreement allowing Plaintiff to repurchase...an additional 60% of the shares which were
owned by Geeting at fair market value after the expiration of three (3) years (allowing
Plaintiff to become 80% owner of his business).” (Plaintiffs First Amended Original
Petition at para. 4.05 number 5 and Plaintiffs Third Amended Petition at para. 4.05
number 5). Furthermore, in answering the 2005 Petition, the Defendants specifically
denied, among other things, the following:
4 If the Defendants had truly believed that leave of Court was required to amend according to the
superseded 2006 Scheduling Order, than they would have sought such leave before filing their Third
Amended Answer on September 30, 2009! They did not.
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1
It was never proposed that Plaintiff be allowed the option of buying
60% of Joseph Geeting’s interest in DCI at a fair market value after the
expiration of three (3) years, as alleged in Plaintiff's First Amended Original
Petition, page 3;
2 It was never proposed that Plaintiff would enter into a shareholder
agreement allowing Plaintiff to repurchase an additional 60% of the shares
that were owned by Joseph Geeting at fair market value after the expiration
of three (3) years (allowing Plaintiff to become an 80% owner in DCI) as
alleged on page 4 of Plaintiffs First Amended Petition;
3 It was never agreed that Plaintiff would own more than 50% of the
shares of DCI as alleged on page 4 of Plaintiff's First Amended Original
Petition.
(Defendant’s Second Amended Answer; para. 2.13). In short, Plaintiff pled its breach of
the 80/20 Agreement in 2005, Defendants knew it—and specifically denied it. Not
surprisingly however, the Defendants make no mention of Plaintiff's 2005 petition
whatsoever in their filing.°
Instead, the Defendants complain about the Court's decision to allow the Second
and Third Amended Petitions filed in 2009, still well over a year before the June 2010 trial
setting. In doing so, the Defendants argue that the Second Amended Petition and the
Third Amended Petition filed in 2009 were filed in violation of the Court’s prior 2006 and
2007 Scheduling Orders because they were filed without leave of Court. However, while
the 2006 Scheduling Order did contain a deadline to amend pleadings, that scheduling
order was superseded by the 2007 Scheduling Order. In the 2007 Agreed Scheduling
Order, signed by the Court, the parties agreed that “Any deadline not specifically
5 Moreover, there is no doubt that an opposing attorney of reasonable competence, could, with the
Plaintiff's 2005 pleading before him, ascertain the nature and the basic issues of the controversy and the
testimony that would probably be relevant, including the 80/20 Agreement, the fraudulent inducement and
the claim regarding the 1% interest.
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identified in this Scheduling Order shall be determined by the Local Rules of Court and
the Texas Rules of Civil Procedure.” The 2007 Agreed Scheduling Order did not
specifically identify a pleadings deadline. Accordingly, the parties agreed, and the Court
ruled, that the deadline to amend pleadings was governed by both the Local Rules of
Court and the Texas Rules of Civil Procedure. While the Local Rules of the Civil Courts
of Dallas County Texas do not contain any rules regarding the deadline to amend
pleadings, the Texas Rules of Civil Procedure do. Rule 63 provides a right to amend
without leave of Court within 7 days before trial. These pleadings, filed over a year
before the June 2010 trial setting, were timely under Rule 63 and gave Defendants more
than adequate time to prepare their defenses in this cause. No doubt recognizing this,
the Court permitted these pleadings.®
Finally, in their Introduction the Defendants suggest that because the jury found
that all parties breached their fiduciary duties to DCI, that Dyer “should not be rewarded
for essentially changing his case after discovery was concluded and the evidence was
presented.” As set forth above, Dyer did not change his case at all, much less after
discovery was concluded and the evidence was presented. The Defendants had fair
notice of the claims against them and years to prepare a defense. Put simply, their
defenses failed because they committed wrongdoing. It would be absurd to allow
Geeting to escape the damages he caused by breaching his agreements, by fraud, by
oppressing Dyer as a shareholder and by breaching his fiduciary duties to DCI. Given
the circumstances, it would also be absurd to allow Geeting to remain in control of DCI
6 Defendants wrongfully suggest that the Court breached a promise it made to them to undo “an injustice”
in allowing questions in the charge not predicated on timely pleadings and that in turn were prejudicial and
not supported by the evidence. Plaintiffs believe that the Court did no such thing.
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pending the appeal of this case and that is why Plaintiff has asked that the Court appoint
a receiver for DCI in the interim. That way further harm to DCI can be prevented.
i.
ARGUMENTS AND AUTHORITIES
A Standard of Review
A JNOV is proper only when a directed verdict would have been proper. Fort Bend
Cty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.1991). In Rush v. Barrios, the
court stated:
‘No evidence’ exists, and a judgment notwithstanding the verdict should be
entered, when the record discloses one of the following: (1) a complete
absence of a vital fact; (2) the court is barred by rules of law or evidence
from giving weight to the only evidence offered to prove a vital fact; (3) the
evidence offered to prove a vital fact is no more than a scintilla of evidence;
or (4) the evidence establishes conclusively the opposite of a vital fact.
56 S.W.3d 88, 94 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (citing Juliette Fowler
Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 666 n. 9 (Tex.1990)); Cleveland
Reg! Med. Ctr, L.P. v. Celtic Properties, L.C., 323 S.W.3d 322, 333 (Tex.
App.--Beaumont 2010, pet. filed). Stated differently, a JNOV is proper only when there
is no evidence to support an issue or conversely when the evidence establishes an issue
as a matter of law. /d.
To determine whether a trial court erred in denying a motion for JNOV based on
the legal insufficiency of the evidence, the appellate court will consider only the evidence
and the reasonable inferences that support the jury's answers, disregarding all contrary
evidence and inferences. /d. See also, Tiller v. McLure, 121 S.W.3d 709, 713
(Tex.2003). It must consider evidence favorable to the finding if a reasonable fact-finder
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could, and disregard evidence contrary to the finding unless a reasonable fact-finder
could not. /d.; City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). If more than a
scintilla of evidence supports the jury finding, it must be upheld. Mancorp., Inc. v.
Culpepper, 802 S.W.2d 226, 228 (Tex.1990).
B. The Court should not disregard jury verdict Question No. 1.
1 The 80/20 Agreement was alleged.
As set forth above, and incorporated herein by reference, Plaintiff alleged the
80/20 Agreement as early as 2005 in its First Amended Petition. Since 2005, the facts
pled in this case have remained virtually identical, including the allegation “That Plaintiff
would enter into a shareholder's agreement allowing Plaintiff to repurchase...an
additional 60% of the shares which were owned by Geeting at fair market value after the
expiration of three (3) years (allowing Plaintiff to become 80% owner of his business).
(Plaintiffs First Amended Original Petition at | 4.05 number 5 and Plaintiff's Third
Amended Petition at {| 4.05 number 5). In answering the First Amended Petition,
Defendants specifically denied this fact, among other things from that Petition.
Defendant's argument in light of these pleadings, has no merit.
As the Court well knows, Texas follows the “fair-notice” standard for pleading.
Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007); Horizon/CMS Healthcare Corp. v. Auld,
34 S.W.3d 887, 896 (Tex. 2000).Fair notice has been given if the pleadings are
sufficiently specific that “an opposing attorney of reasonable competence, could with the
pleading before him, ascertain the nature and the basic issues of the controversy and the
testimony which will probably be relevant.” Brewster v. Columbia Med. Ctr. of McKinney
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Subsidiary, L.P., 269 S.W.3d 314, 319 (Tex. App.--Dallas 2008, no pet.); See also,
Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982); Schoellkopf v. Pledger, 778 S.W.2d
897, 899-99 (Tex.App.-Dallas 1989, writ. denied). The courts should entertain causes of
action which are reasonably inferred from those specifically plead. Brewster v. Columbia
Med. Ctr. of McKinney Subsidiary, L.P., 269 S.W.3d 314, 319 (Tex. App.--Dallas 2008, no
pet.); See also, McGraw v. Brown Realty Co., 195 S.W.3d 271, 275 (Tex.App.-Dallas
2006, no pet.) (‘A petition is sufficient if a cause of action or defense can be inferred from
what is specifically stated.”). Here, there is no doubt that the Defendants could, and in fact
did, ascertain from the Plaintiff's First Amended Petition filed in 2005 the nature and basic
issues of the controversy and evidence that might be relevant. They specifically denied
them in their Second Amended Answer. However, even if the notice-pleading
requirements and the Defendants’ own admissions were ignored, the 80/20 claim was
timely alleged in 2009 in the Second and Third Amended Petitions. As set forth above,
while the 2006 Scheduling Order contained a pleading deadline, that Scheduling Order
was superseded by the Court’s 2007 Scheduling Order (and the parties’ agreement).
The 2007 Scheduling Order provided that “Any deadline not specifically identified in this
Scheduling Order shall be determined by the Local Rules of Court and the Texas Rules of
Civil Procedure.” Since there are no local rules setting deadlines to amend however,
Tex. R. Civ. P. 63 prevails. It provides a right to amend without leave of Court within 7
days before trial. The Second and Third Amendments were filed more than a year
before the June 2010 trial setting. Defendants’ argument to the contrary lacks merit.7
7 This is further reflected by many of the Defendants’ filings made after the expiration of the very
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Finally, this Court had the inherent right to change or modify the Scheduling Order.
See, In re Estate of Henry, 250 S.W.3d 518, 526 (Tex.App.-Dallas 2008, no pet.). Here,
the Court not only allowed the Third Amended Petition it also implicitly modified its
previous scheduling orders in so doing. See, /d. The Court acted well within its wide
discretion in doing so. First, as set forth above, Defendants were on notice for years of
the claims regarding the 80/20 Agreement. The Defendants did not and could not prove
that they were surprised or prejudiced by the amendments (filed over a year before trial)
nor, as set forth above, did the amendments state new claims. See, Graham v. Adesa,
Inc., 145 S.W.3d 769, 775-776 (Tex.App.--Dallas 2004, pet. denied). Further, and
importantly, if the court had not changed or modified the scheduling orders, there would
have been a violation of due process. As the Court will remember, at the time the 2006
and 2007 Scheduling Orders were signed, neither Contreras nor the Estate of Larry Dyer
were parties to this lawsuit. In fact, at the time Contreras was added as a party all of the
deadlines specifically identified in the Agreed Scheduling Order had long since passed
including the discovery deadline. If the 2006 or 2007 Scheduling Orders governed to
preclude Contreras (or the Estate of Larry Dyer) from exercising her rights as a litigant;
i.e. denying her the opportunity to amend her pleadings or conduct discovery; that would
have constituted a violation of due process.
deadlines it now argues were mandated by the Scheduling Orders including the Defendants’ Second
Amended Answer filed on March 13, 2008 (after the June 2007 trial setting) and Defendants’ Third
Amended Answer filed on September 30, 2009.
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2 The claim for breach of the 80/20 Agreement was not barred by the
statute of limitations.
a Geeting waived the limitations defense.
The statute of limitations is an affirmative defense. Tex.R.Civ.P. 94. The defendant
thus bears the initial burden to plead, prove, and secure findings to sustain its plea of
limitations. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988).This
burden includes establishing when the plaintiff's cause of action accrued to demonstrate
the bar of limitations. Holland v. Lovelace, S.W.3d 2011 WL 3805519
(Dallas 2011, nwh). Prestige Ford Garland Ltd. P'ship v. Morales, 336 S.W.3d 833, 836
(Tex. App.--Dallas 2011, no pet.).When, as here, the jury was not asked to determine
when the cause of action accrued for purposes of supporting a limitations defense, the
defense is waived unless the date of accrual was conclusively established under the
evidence. /d. The evidence in this case does not conclusively establish the date of
accrual of the breach of contract claim. Accordingly, Geeting has waived the limitations
defense. Holland, id at pps. 8-11.
b The 2005 pleading sets forth the allegation.
The statute of limitations for a breach of contract claim is four years. Tex. Civ. Prac. and
Rem. Code Section 16.051. Defendants contend that limitations on the claim for breach
of the 80/20 Agreement ran in February 2008 because Geeting failed to perform under
the Agreement in 2004. Even if the Defendants had conclusively established that the
cause of action accrued in February 2004, which is denied, and February 2008 was the
limitations cut-off, the allegations set forth in Plaintiff's First Amended Petition in 2005
were sufficient to, and did in fact, put Geeting on fair notice of the claim against him.
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Accordingly, the action was timely filed in 2005.
c. Furthermore, the 2009 Third Amended Petition relates back to
the 2005 filing.
Even if the Court determines that the breach of contract claim was not actually filed
until the Third Amended Petition in 2009, that amendment relates back to the 2005 First
Amended Petition under Tex. Civ. Prac. & Rem. Code §16.068.Section 16.068 provides
in this regard as follows:
Amended and Supplemental Pleadings
If a filed pleading relates to a cause of action, cross action, counterclaim, or
defense that is not subject to a plea of limitation when the pleading is filed, a
subsequent amendment or supplement to the pleading that changes the
facts or grounds of liability or defense is not subject to a plea of limitation
unless the amendment or supplement is wholly based on a new, distinct, or
different transaction or occurrence.
Tex. Civ. Prac.& Rem. Code Ann. § 16.068 (West). Section 16.068 provides that new
facts or claims raised in a subsequent pleading relate back to a timely filed pleading and
are not barred unless the amendment or supplemental pleading “is wholly based on a
new, distinct, or different transaction or occurrence.” /d.
The Dallas Court of Appeals has recently determined that “[A] ‘transaction’ is
defined as a set of facts that gives rise to the cause of action premised thereon.”
(Emphasis added). Brewster v. Columbia Med. Ctr. of McKinney Subsidiary, L.P., 269
S.W.3d 314, 317-18 (Tex.App.-Dallas 2008, no pet.). Here, the Plaintiff clearly alleged
the same set of facts in 2005 as it did in 2008, including, among other things, the
allegation “That Plaintiff would enter into a shareholder's agreement allowing Plaintiff to
repurchase...an additional 60% of the shares which were owned by Geeting at fair
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market value after the expiration of three (3) years (allowing Plaintiff to become 80%
owner of his business).” (Plaintiff's First Amended Original Petition at | 4.05 number 5
and Plaintiff's Third Amended Petition at 4.05 number 5). Under such circumstances,
there can be no question but that if not already sufficiently pled in 2005, the 2009
amendment relates back to that pleading. See, e.g. J.K. and Susie Wadley Research Inst.
and Blood Bank v. Beeson, 835 S.W.2d 689, 697 (Tex.App.-Dallas 1992, writ denied)
(wife's claim in amended petition relates back to decedent's claim because both arose
from the same blood transfusion).
3. There is evidence to support the existence of the 80/20 Agreement.
Craig Dyer testified as to the existence of the 80/20 Agreement. His testimony was
supported by the testimony of Melissa Contreras, and also Lauri Geeting, one of the
Defendants. This is evidence to support the Jury’s answer to Question No. 1.
4. The Defendants’ did not establish lack of consideration.
The Defendants also contend that Plaintiff provided no evidence concerning
separate consideration for the 20/20 Agreement as referenced above. There was
evidence that the 80/20 Agreement was a written agreement that was signed by Joseph
Geeting. Therefore, the 80/20 Agreement presumptively imported consideration and the
burden was on the Defendants’ to plead and prove the absence of consideration.
Simpson v. MBank, N.A., 724 S.W. 2d 102, 107 (Tex. App.—Dallas 1987, writ re’f n.r.e.).
The Defendants neither obtained a jury finding that there was a lack of consideration nor
did they establish as a matter a law that there was a lack of consideration. The Court
cannot disregard Question No. 1 on the basis that there was no separate consideration.
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Cc. The court cannot disregard Question No. 2.
The jury found in Question in answer to Question No. 2 that Joseph Geeting failed
to comply with the 80/20 Agreement. The Defendants do not contend there is any
evidence that Geeting complied with the 80/20 Agreement. Instead, they argue that
Plaintiff first had to tender performance before Geeting needed to comply. Geeting took
actions designed to and having the effect of depriving Plaintiff of his right as an owner of
the business to access the contracts, books and records. Geeting’s obligation of
compliance was not limited to selling the stock when Dyer exercised his option. Geeting
acted to prevent Dyer from exercising his option. Geeting, the jury found, defrauded
Dyer into altering their 50/50 ownership of the company. Further, Geeting admitted that
he had destroyed tapes of every meeting conducted in the case and he claims to have
lost or destroyed the work logs that pertain to Craig Dyer. Finally, he denies the
existence of the 80/20 contract that the jury found to exist. All of this evidence supports
the jury finding that Joseph Geeting did not comply with the 80/20 Agreement.
2. Plaintiff's 80/20 claim was timely.
See Response in Section B.1. above.
D. The court cannot disregard the jury’s answer to Question No. 3.
Contrary to Defendants’ claim, Dyer testified that he was ready, willing and able to
timely perform his contractual obligations under the 80/20 Agreement. The jury had the
prerogative of believing his testimony. The court cannot disregard the jury's answer to
Question No. 5.
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E. The court cannot disregard the jury’s answer to Question No. 5.
The jury’s answer that Geeting prevented Dyer from tendering performance is also
supported by the evidence that the Defendants’ repeatedly refused to provide the records
and books to the Plaintiff so that he could determine the value of the company and
thereby, determine the value of the stock. Geeting also engaged in other conduct
referenced above. This evidence supports the jury’s finding that Joseph Geeting
interfered with Craig Dyer’s tender performance under the 80/20 Agreement.
F. The court cannot disregard the jury’s answer to Question No. 6.
Defendants contend that there was no evidence that would allow the jury to find
that the market value of the stock that Plaintiff had the right to repurchase from Joseph
Geeting in February 2004, was $23,823.00. In the cross examination of Joseph
Geeting, Plaintiff obtained testimony that the value of DCl’s stock in 2007 was
approximately $79.41per share. In further cross examination, Mr. Geeting admitted that
Dyer would have needed to pay him $23,823.00 in order to buy him down to 20%. A part
owner of a business may testify as to the market value as to the market value of that
business's stock. See Akin, Gump, Strauss, Hauer & Feld, LLP v. Nat'l Dev. & Research
Corp., 232 S.W.2d 883, 893-94 (Tex. App--Dallas 2007), rev'd on other grounds, 299
S.W.3d 106 (Tex. 2009); Vector Indus., Inc. v. Dupre, 793 S.W.2d 97, 103 (Tex. App. —
Dallas 1990, no writ).
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G The court cannot disregard the jury’s answer to Question No. 8
1 The Plaintiff timely alleged a fraud/fraudulent inducement claim.
The Defendants first contend that fraudulent inducement was not alleged in the
Third Amended Petition and the allowance of a trial amendment was prejudicial and a
surprise. In its First Amended Petition, as in its 2009 petitions, Plaintiff alleges fraud in
the sale and transfer of stock.
This matter is covered in the Introduction and B.1.
Fraudulent inducement is a particular species of fraud that arises in the context of
a contract and requires the existence of a contract as part of its proof. Haase v. Glazner,
62 S.W.3d 795, 798 (Tex. 2001). The elements for fraudulent inducement are the same
as the elements for fraud. See DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 688
(Tex. 1990); see also In Re First MeritBank N.A., 52 S.W.3d 749, 758 (Tex. 2001). To
prove fraudulent inducement, the Plaintiff must establish the same elements of fraud as
they relate to a contract. Sanson Lonestar, Ltd. Partnership v. Hooks, S.W.3d - 2011
W.L. 3918093, *11 (Tex. App.—Houston [1st District] 2011, no pet. history). Plaintiff's
factual allegations showed that the alleged fraud pertained to the 2002 Agreement.
Therefore, Geeting was not prejudiced or surprised by the trial amendment.
2. The fraudulent inducement claim was not barred by limitations.
See Introduction and Section B.1. above. Defendants next claimed that the claim
was barred by limitations.
Moreover, as a matter of law limitation does not begin to run on fraud until the fraud
is discovered or could have been discovered by the exercise of reasonable diligence.
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Little v. Smith, 943 S.W.2d 414, 420 (Tex. 1997). The fact that a plaintiff may suspect
wrongdoing on behalf of the defendant does not establish as a matter of law that he had
discovered the fraud or that he could have discovered the fraud in the exercise of
reasonable diligence. Limitations are an affirmative defense. Holland v. Lovelace,
S.W.2d, 2011 WL 3805519, *8 (Tex. App. — Dallas Aug. 30, 2011, no pet. list). Geeting
had the burden to plead, prove and secure findings to support his affirmative defense.
That burden included establishing when the plaintiff's cause of action occurred. If the
Geetings intended to rely on the statute of limitations, they should have obtained a fact
finding from the jury as to the date Dyer knew of the fraud or could have discovered the
fraud by the exercise of reasonable diligence. Geeting’s failure to submit this issue or
obtain a jury finding is fatal to his assertion respecting this issue.
3. There is evidence to support the fraudulent inducement finding.
Finally, the Defendants’ claim that there is no evidence to support the jury’s finding
that Geeting fraudulently induced. The evidence shows that Joseph Geeting claimed to
have stepped out of the operations of DCI for the 5 to 6 months prior to the December
2002 Agreement, but the jury could reasonably infer from the evidence that he was using
computer spyware to spy on the company’s records. Furthermore, he was moving the
company’s money around into a separate secret bank account at Bank One without
telling anybody. When the company got into financial straits, he came back with the
proposal purportedly to save the company. The evidence shows that Geeting
represented that the constraints of a commercial loan required that Dyer had to own less
than 20% of the corporation in order to obtain a loan for the company. The evidence
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showed that after Dyer transferred shares he owned to reduce his ownership interest to
19%, the Defendants made no effort to get a commercial loan. This is some evidence of
promissory fraud, i.e., no pretext of performance. Joseph Geeting further testified that all
representations in his proposal were material that he had intended for the Plaintiff to rely
on and that he knew that the Plaintiff did rely on them, and that it was his intent at all times
to obtain 51% of permanent ownership notwithstanding his representations to the Plaintiff
that a temporary ownership change was necessary to apply for the loan. Geeting also
claimed that not everything in the 2002 plan was true, but when asked on cross
examination what part was not true, he could not point out the lie. Instead, he then
claimed it was a sales pitch. The jury could believe Dyer and disbelieve Geeting. This
evidence supports the jury’s answer to Question No. 8.
H. The court cannot disregard the jury’s answer to Question No. 9.
The Defendants’ claim that no evidence was proffered at trial to support any fining
by the jury concerning expectancy damages with regard to the December 2002
Agreement. Had the fraud not occurred, the Plaintiff would have maintained a 50%
ownership. As a 50% owner, he would have been entitled to 50% of all the profits.
Based upon the profits that the CPA for DCI testified to over the intervening years, 50% of
the profits would have been $149,169.00, which is the amount that the Plaintiff requested.
The jury’s finding is within that amount. A jury can make a fact finding of damages within
the range of the evidence. Parallax Corp., N.V. v. City of El Paso, 910 S.W.2d 86, 92
(Tex.App.—El Paso 1995, writ denied); see Waterways on the Intercoastal, 283 S>W.2d
at 44-45 & n.15; Exxon Pipeline Co. v. Zwahr, 35 S.W.3d 705 (Tex.App.—Houston [1*
PLAINTIFF’S RESPONSE TO MOTION JNOV Page 17
HACLIENTS\DYER\DCINPLEADINGS\DYER RESPONSE TO JNOV
Dist.] 2000,) rev'd on other grounds, 88 S.W.3d 623 (Tex.2002); cf. Callejo v. Brazos
Elec. Power Coop, Inc., 755 S.W.2d 73, 75 (Tex.1988).
I The court cannot disregard the jury’s answer to Question No. 10.
The Defendants claimed that there is no evidence that Joseph Geeting made any
false representation of an existing fact or false promise with respect to the December
2002 Agreement. The evidence discussed in response to Question No. 8 also supports
the jury’s finding to Question No. 10.
J The court cannot disregard the jury’s answer to Question No. 11.
The Defendants argue that there is no evidence to support the damages found by
the jury in answer to Question No. 11. The evidence that supports the jury's damage
finding in Question No. 8 also supports the jury’s damages answer to Question No. 11.
There is no obligation for the jury to find the same amount of damages in answer to
Question No. 11 in answer to Question No. 8.
K. The court cannot disregard the jury’s answer to Question No. 18 with
respect to Joseph Geeting, Lauri Geeting and Richard Geeting.
The Defendants contend that the evidence is overwhelming that the conduct of
Joseph Geeting, Lauri Geeting and Richard Geeting was within the business judgment
tule. However, the evidence showed that Craig Dyer was entitled to compensation from
DCI for work that he had performed on behalf of DCI, but that Joseph Geeting, Lauri
Geeting and Richard Geeting refused to have DCI pay him the money that it owed him.
Furthermore, the evidence showed that Joseph Geeting removed DCI’s money, which
could be interpreted by the jury to be an effort to interfere with the operations of the
company and to set up Joseph Geeting’s takeover of the company with their help.
PLAINTIFF’S RESPONSE TO MOTION JNOV Page 18
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Moreover, the evidence regarding the establishment of deals between DC] and THOC
supported the jury's finding that the Geetings violated their fiduciary duties to DCI. The
fact that the jury could have found such actions to be within the business judgment rule
does not require them todo so. Furthermore, overwhelming evidence does not meet the
standard for a Judgment NOV. The Defendants had to establish conclusively that they
violate their fiduciary duties to DCI. See Rush, 56 S.W.3d at 94.
Nor can the court disregard the jury's answer to Question No. 18 because it did not
incorporate a jury instruction to disregard the Plaintiff's line of questioning. The Court
had broad discretion in the instructions it included in the jury charge. Plainsman Trading
Co. v. Crews, 898 S.W.2d 786, 791 (Tex. 1995). The court’s rulings and instructions at
the time of the questioning was sufficient and there is no indication that the failure to
include the instructions resulted in an improper verdict by the jury. Moreover, the
Defendants’ argument does not meet the standard for a Judgment NOV. See Section A.
L The court cannot disregard the jury’s answers to Questions No. 19-21.
The Defendants contend that the jury's answers to Questions 19-21, which
covered damages that DCI is entitled to for breaches of fiduciary duty by the Geetings,
was unsupported by any evidence. However, the evidence shows that the individual
Defendants spent $500,000.00 to deny the Plaintiff his rights to go through the books and
records, to fight him on the ownership of stock and to litigate the case through trial. The
jury could find that this was an improper usage of DCI’s funds. The amount of damages
that DCI found for Joseph Geeting, Lauri Geeting and Richard Geeting was within that
evidence.
PLAINTIFF’S RESPONSE TO MOTION JNOV Page 19
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M The court cannot disregard the jury’s answer to Question No. 23.
The Defendants contend that Plaintiff failed to present any evidence to support the
$10,000.00 jury award against Joseph Geeting for transactions in which he breached his
fiduciary duties to DCI. The evidence shows that Joseph Geeting took a $10,000.00
write off in his income taxes as a result of the THOC transaction which was a write off that
DCI should have gotten. That evidence supports the jury’s award.
N The court cannot disregard the jury’s answers to Question Nos. 25 & 26.
The Defendants again contend that Plaintiff provided no evidence supporting Question
Nos. 25 & 26, which involve Geeting’s converting any personal property that DCI owned.
The evidence shows that at a time that Geeting was supposedly out of the picture, he
bought a computer from Best Buy for $922.00 with DCI’s money. DCI had not scheduled
the purchase of a new computer. The evidence supports the jury's finding that Geeting
converted a computer purchase with DCI’s money for his own use.
oO. The court cannot disregard the jury’s answer to Question No. 27.
1 The underlying claims were timely pleaded and proved.
Defendants first claimed that the predicate causes of action were not timely
pleaded or moved.
See answers related to Question Nos. 1-3, 5 and 10-11.
2 A party requesting attorneys’ fees is only required to segregate fees
that relate solely to a claim for which fees are unrecoverable.
Defendants next claimed that the Court must disregard the jury's award of
attorneys’ fees because the fees were not segregated.
Legal services that advance both a recoverable and unrecoverable claim need not
PLAINTIFF’S RESPONSE TO MOTION JNOV Page 20
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be segregated. Tony Gullo Motors I, LP v. Chapa, 212 S.W.3d 299, 313-14 (Tex. 2006).
Mr. Madden’s testimony showed that the actions for which the Plaintiff requested
attorneys’ fees advanced the claims under the 80/20 Agreement and statutory fraud as
well as the other claims. Moreover, there is no authority that the court can disregard the
jury’s finding of attorneys’ fees because the evidence was not segregated. The court
can disregard a question only when there is no evidence to support it or because the fact
was established to the contrary as a matter of law. See Brown v. Bank of Galveston, 963
S.W.2d, 511, 513 (Tex. 1998); Gallas v. Car Biz, Inc., 914 S.W.2d, 592, 593 (Tex.
App.—Dallas 1995, writ denied). Mr. Madden’s testimony was clearly some evidence of
what the amount of the attorneys’ fees should be. See Tony Gullo Motors |, LP, 212
S.W.3d at 314. The Defendants’ argument does not meet the test for a Judgment NOV.
Therefore, the court cannot disregard the jury’s answer.
P The court cannot disregard the jury’s answer to Question No. 38.
The Defendants contend that because the jury found that Craig Dyer wrongfully
exercised dominion or control over the property including checks belonging to DCI, they
could not answer zero to Question No. 38. The evidence also showed, however, that
Craig Dyer was entitled to be paid by DCI the entire amount of the DCI checks. A jury
could find that it was improper for Craig Dyer to issue those checks to himself, but that
such action did not damage DCI because it owed him the amount of money paid.
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Q The court cannot disregard the jury’s answer to Question No. 38.
The court should reject the Defendants’ contention that Plaintiff cannot
assert any equitable claims because he comes before this court with unclean
hands.
Plaintiff seeks equitable relief with regard to oppression of his shareholder rights
only against the individual Defendants, not against DCI. Plaintiff's conduct might be held
to be unclean hands related to his obligations to DCI, not against the individual
Defendants. The fact that the court might have a basis for denying equitable relief to the
Plaintiff against DCI does not justify the denial of equitable relief against the other
Defendants.
R The court also cannot disregard the jury’s findings because of its definitions
of the 80/20 Agreement and the “December 2002 Agreement.”
Finally, the Defendants asked the court to disregard all the jury’s findings because
its definition of the “80/20 Agreement” and the “December 2002 Agreement” were
improper comments on the weight of the evidence. A trial court has great discretion in
submitting instructions and definitions to the jury. Interstate Northborough Partnership v.
State, 66 S.W.3d 213, 224 (Tex. 2001); Plainsman Trading Co., 898 S.W.2d at 791. In
fact, a trial court must submit such explanatory instructions and definitions in a jury charge
that will aid and assist the jury in answering the jury questions submitted. Tex.R.Civ.P.
277; Redwine v. AAA Life Ins. Co., 852 S.W.2d at 10, 14 (Tex. App.—Dallas 1993, no
writ). An instruction may constitute an impermissible comment on the weight of the
evidence, if the Appellate Court would determine that the trial court assumed the truth of
the material controverted fact or exaggerated, minimized or withdrew some pertinent
evidence from the jury’s consideration. Grenier v. Joe Camp, Inc., 900 S.W.2d 848, 850
PLAINTIFF’S RESPONSE TO MOTION JNOV Page 22
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(Tex. App.—Corpus Christi 1995).
An instruction will also be held to be an improper comment on the weight of the
evidence if it suggests to the jury the trial judge’s opinion concerning the matter about
which the jury is asked. Grenier, 900 S.W.2d at 850; Redwine, 852 S.W.2d at 14.
Although the trial court may not comment on the weight of the evidence, it may
incidentally comment where comment is necessary or proper as part of the explanatory
instruction or definition. Tex.R.Civ.P. 277; Grenier, 900 S.W.2d at 850.
Finally, the court’s definition of the 80/20 Agreement merely refers to the Plaintiff's
allegations that he had an agreement with Joseph Geeting for the right to purchase from
Joseph Geeting 60% of the shares owned by Geeting after the expiration of three years.
The definition does not assume the truth of a controverted fact, i.e., whether the 80/20
Agreement existed, nor does it indicate any opinion of the court as to which way the jury
should answer Questions No. 1-5 or any other question related to the 80/20 Agreement.
Similarly, the court’s definition of the “December 2002 Agreement” referred to the
Agreement as relating to the restructure of the ownership of DCI's shares. It was
undisputed that there were8 agreements relating to the restructuring of the ownership of
DCl’s shares in 2002. The court’s definition does not assume the truth of any material
controverted fact, exaggerate, minimize or withdraw pertinent evidence, nor suggest to
the jury the trial court's opinion regarding the matter about which the jury was asked.
The Court’s definitions were not a comment upon the weight of the evidence.
Furthermore, there is no authority that would justify the court disregarding the jury’s
8 Although, as found by the jury, fraudulently induced by Geeting.
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answers and giving the Defendants a judgment contrary
to the jury’s findings based upon
any error by the court in instructing the jury. The Defendants’ argument does not meet
the standard for a Judgment NOV.
ML.
CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that the court deny in toto
Def
Preview
Filed 11 October 28 P4:10 Gary Fitzsimmons District Clerk Dallas District CAUSE NO. 04-01100-M CRAIG DYER, IN THE DISTRICT COURT OF Plaintiff Vv. 298" JUDICIAL DISTRICT DYER CUSTOM INSTALLATION, INC. (DCI), JOSEPH GEETING, SUSAN LAMBERT, LARRY DYER and RICHARD GEETING Defendants DALLAS COUNTY, TEXAS PRO PLUMBING & APPLIANCE IN THE DISTRICT COURT INSTALLATION, INC. f/k/fa DYER CUSTOM INSTALLATION, INC. Plaintiff, vs. 298" JUDICIAL DISTRICT CRAIG DYER, MELISA CONTRERAS and THE ESTATE OF LARRY DYER Defendants, DALLAS COUNTY, TEXAS PLAINTIFF’S RESPONSE TO MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT COMES NOWPLAINTIFF, CRAIG DYER (“Dyer”) individually and on behalf of Dyer Custom Installation, Inc., and responds in opposition to the Defendants’ Motion for Judgment Notwithstanding the Verdict (the “Motion for JNOV”) and shows the Court as follows: PLAINTIFF’S RESPONSE TO MOTION JNOV Page 1 HACLIENTS\DYER\DCI\PLEADINGS\DYER RESPONSE TO JNOV I INTRODUCTION A. The Defendants’ Request The Defendants, Dyer Custom Installation, Inc. (“DCI”) and its former or current officers and directors, Joseph Geeting (“Geeting”), Richard Geeting (“R. Geeting”) and Lauri Geeting (“L. Geeting”), ask this Court to set aside a jury verdict in favor of Dyer and DCI.'More specifically, the Defendants request a judgment notwithstanding the verdict (a “JNOV’”) on the following findings of the jury: Questions 1-3 and 5-7 (related to the 80/20 Agreement between Dyer and Geeting, Geeting’s failure to comply, Dyer’s performance and Geeting’s preventing Dyer from tendering same, the market value of the stock of DCI in February 2004, and damages for Geeting’s failure to comply)”; Questions 8-9 (Geeting’s fraudulent inducement of Dyer into the December 2002 Agreement and damages)*; Questions 10-11 (Geeting’s statutory fraud regarding the transfer of 10 shares of DCI and damages); Questions 18-21 (each of Defendants’ breaches of fiduciary duty to DCI and damages for same); Question 23 (related to Geeting’s profit for his breach of fiduciary duty); Questions 25-26 (related to conversion by Geeting as to DCI and damages to DCI from Geeting); Question 27 (related to attorneys’ fees); and Question 38 (related to the finding of no damages against Dyer as to conversion). 4 The conflict of interest between DCI and its former officers and directors who have breached their fiduciary duties to DCI is evident here when DCI’s lawyer is asking (on behalf of DCI) the Court to enter a JNOV against it and in favor of the officers and/or directors who breached their fiduciary duties to DCI. 2 The 80/20 Agreement was the agreement Dyer alleged he had with Geeting for the right to purchase from Geeting 60% of the shares of DCI owned by Geeting at the expiration of 3 years. 3 The December 2002 Agreement was the agreement relating to the restructuring of the ownership of DCI's shares. PLAINTIFF’S RESPONSE TO MOTION JNOV Page 2 H:\CLIENTS\DYER\DCI\PLEADINGS\DYER RESPONSE TO JNOV B. Defendants’ “Introduction” distorts the facts. The Defendants’ “Introduction” in its motion for JNOV, like many of the other filings by the Defendants throughout this litigation, contains numerous mischaracterizations and distortions, some of which the Plaintiff will briefly address here. First, the Defendants claim that Plaintiff ignored the Court's Scheduling Orders and Tex. R. Civ. P. 63 in filing its Second and Third Amended Petitions, while at the same time relying upon those pleadings which would “ignore that same scheduling order.” Purportedly, Plaintiffs 2009 amendments “changed the landscape of the original lawsuit and ultimately resulted in both surprise and prejudice to Defendants, which in turn resulted in a jury charge that incorporated new causes of action asserted for the first time.” This is simply not the case. As the Court is well aware, since Plaintiffs First Amended Petition filed in this case in 2005, the facts pled in the case have remained virtually identical, including the allegation “That Plaintiff would enter into a shareholder's agreement allowing Plaintiff to repurchase...an additional 60% of the shares which were owned by Geeting at fair market value after the expiration of three (3) years (allowing Plaintiff to become 80% owner of his business).” (Plaintiffs First Amended Original Petition at para. 4.05 number 5 and Plaintiffs Third Amended Petition at para. 4.05 number 5). Furthermore, in answering the 2005 Petition, the Defendants specifically denied, among other things, the following: 4 If the Defendants had truly believed that leave of Court was required to amend according to the superseded 2006 Scheduling Order, than they would have sought such leave before filing their Third Amended Answer on September 30, 2009! They did not. PLAINTIFF’S RESPONSE TO MOTION JNOV Page 3 HACLIENTS\DYER\DCI\PLEADINGS\DYER RESPONSE TO JNOV 1 It was never proposed that Plaintiff be allowed the option of buying 60% of Joseph Geeting’s interest in DCI at a fair market value after the expiration of three (3) years, as alleged in Plaintiff's First Amended Original Petition, page 3; 2 It was never proposed that Plaintiff would enter into a shareholder agreement allowing Plaintiff to repurchase an additional 60% of the shares that were owned by Joseph Geeting at fair market value after the expiration of three (3) years (allowing Plaintiff to become an 80% owner in DCI) as alleged on page 4 of Plaintiffs First Amended Petition; 3 It was never agreed that Plaintiff would own more than 50% of the shares of DCI as alleged on page 4 of Plaintiff's First Amended Original Petition. (Defendant’s Second Amended Answer; para. 2.13). In short, Plaintiff pled its breach of the 80/20 Agreement in 2005, Defendants knew it—and specifically denied it. Not surprisingly however, the Defendants make no mention of Plaintiff's 2005 petition whatsoever in their filing.° Instead, the Defendants complain about the Court's decision to allow the Second and Third Amended Petitions filed in 2009, still well over a year before the June 2010 trial setting. In doing so, the Defendants argue that the Second Amended Petition and the Third Amended Petition filed in 2009 were filed in violation of the Court’s prior 2006 and 2007 Scheduling Orders because they were filed without leave of Court. However, while the 2006 Scheduling Order did contain a deadline to amend pleadings, that scheduling order was superseded by the 2007 Scheduling Order. In the 2007 Agreed Scheduling Order, signed by the Court, the parties agreed that “Any deadline not specifically 5 Moreover, there is no doubt that an opposing attorney of reasonable competence, could, with the Plaintiff's 2005 pleading before him, ascertain the nature and the basic issues of the controversy and the testimony that would probably be relevant, including the 80/20 Agreement, the fraudulent inducement and the claim regarding the 1% interest. PLAINTIFF’S RESPONSE TO MOTION JNOV Page 4 HACLIENTS\DYER\DCINPLEADINGS\DYER RESPONSE TO JNOV identified in this Scheduling Order shall be determined by the Local Rules of Court and the Texas Rules of Civil Procedure.” The 2007 Agreed Scheduling Order did not specifically identify a pleadings deadline. Accordingly, the parties agreed, and the Court ruled, that the deadline to amend pleadings was governed by both the Local Rules of Court and the Texas Rules of Civil Procedure. While the Local Rules of the Civil Courts of Dallas County Texas do not contain any rules regarding the deadline to amend pleadings, the Texas Rules of Civil Procedure do. Rule 63 provides a right to amend without leave of Court within 7 days before trial. These pleadings, filed over a year before the June 2010 trial setting, were timely under Rule 63 and gave Defendants more than adequate time to prepare their defenses in this cause. No doubt recognizing this, the Court permitted these pleadings.® Finally, in their Introduction the Defendants suggest that because the jury found that all parties breached their fiduciary duties to DCI, that Dyer “should not be rewarded for essentially changing his case after discovery was concluded and the evidence was presented.” As set forth above, Dyer did not change his case at all, much less after discovery was concluded and the evidence was presented. The Defendants had fair notice of the claims against them and years to prepare a defense. Put simply, their defenses failed because they committed wrongdoing. It would be absurd to allow Geeting to escape the damages he caused by breaching his agreements, by fraud, by oppressing Dyer as a shareholder and by breaching his fiduciary duties to DCI. Given the circumstances, it would also be absurd to allow Geeting to remain in control of DCI 6 Defendants wrongfully suggest that the Court breached a promise it made to them to undo “an injustice” in allowing questions in the charge not predicated on timely pleadings and that in turn were prejudicial and not supported by the evidence. Plaintiffs believe that the Court did no such thing. PLAINTIFF’S RESPONSE TO MOTION JNOV Page 5 HACLIENTS\DYER\DCI\PLEADINGS\DYER RESPONSE TO JNOV pending the appeal of this case and that is why Plaintiff has asked that the Court appoint a receiver for DCI in the interim. That way further harm to DCI can be prevented. i. ARGUMENTS AND AUTHORITIES A Standard of Review A JNOV is proper only when a directed verdict would have been proper. Fort Bend Cty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.1991). In Rush v. Barrios, the court stated: ‘No evidence’ exists, and a judgment notwithstanding the verdict should be entered, when the record discloses one of the following: (1) a complete absence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla of evidence; or (4) the evidence establishes conclusively the opposite of a vital fact. 56 S.W.3d 88, 94 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (citing Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 666 n. 9 (Tex.1990)); Cleveland Reg! Med. Ctr, L.P. v. Celtic Properties, L.C., 323 S.W.3d 322, 333 (Tex. App.--Beaumont 2010, pet. filed). Stated differently, a JNOV is proper only when there is no evidence to support an issue or conversely when the evidence establishes an issue as a matter of law. /d. To determine whether a trial court erred in denying a motion for JNOV based on the legal insufficiency of the evidence, the appellate court will consider only the evidence and the reasonable inferences that support the jury's answers, disregarding all contrary evidence and inferences. /d. See also, Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.2003). It must consider evidence favorable to the finding if a reasonable fact-finder PLAINTIFF’S RESPONSE TO MOTION JNOV Page 6 HACLIENTS\DYER\DCI\PLEADINGS\DYER RESPONSE TO JNOV could, and disregard evidence contrary to the finding unless a reasonable fact-finder could not. /d.; City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). If more than a scintilla of evidence supports the jury finding, it must be upheld. Mancorp., Inc. v. Culpepper, 802 S.W.2d 226, 228 (Tex.1990). B. The Court should not disregard jury verdict Question No. 1. 1 The 80/20 Agreement was alleged. As set forth above, and incorporated herein by reference, Plaintiff alleged the 80/20 Agreement as early as 2005 in its First Amended Petition. Since 2005, the facts pled in this case have remained virtually identical, including the allegation “That Plaintiff would enter into a shareholder's agreement allowing Plaintiff to repurchase...an additional 60% of the shares which were owned by Geeting at fair market value after the expiration of three (3) years (allowing Plaintiff to become 80% owner of his business). (Plaintiffs First Amended Original Petition at | 4.05 number 5 and Plaintiff's Third Amended Petition at {| 4.05 number 5). In answering the First Amended Petition, Defendants specifically denied this fact, among other things from that Petition. Defendant's argument in light of these pleadings, has no merit. As the Court well knows, Texas follows the “fair-notice” standard for pleading. Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007); Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000).Fair notice has been given if the pleadings are sufficiently specific that “an opposing attorney of reasonable competence, could with the pleading before him, ascertain the nature and the basic issues of the controversy and the testimony which will probably be relevant.” Brewster v. Columbia Med. Ctr. of McKinney PLAINTIFF’S RESPONSE TO MOTION JNOV Page 7 H:\CLIENTS\DYER\DCINPLEADINGS\DYER RESPONSE TO JNOV Subsidiary, L.P., 269 S.W.3d 314, 319 (Tex. App.--Dallas 2008, no pet.); See also, Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982); Schoellkopf v. Pledger, 778 S.W.2d 897, 899-99 (Tex.App.-Dallas 1989, writ. denied). The courts should entertain causes of action which are reasonably inferred from those specifically plead. Brewster v. Columbia Med. Ctr. of McKinney Subsidiary, L.P., 269 S.W.3d 314, 319 (Tex. App.--Dallas 2008, no pet.); See also, McGraw v. Brown Realty Co., 195 S.W.3d 271, 275 (Tex.App.-Dallas 2006, no pet.) (‘A petition is sufficient if a cause of action or defense can be inferred from what is specifically stated.”). Here, there is no doubt that the Defendants could, and in fact did, ascertain from the Plaintiff's First Amended Petition filed in 2005 the nature and basic issues of the controversy and evidence that might be relevant. They specifically denied them in their Second Amended Answer. However, even if the notice-pleading requirements and the Defendants’ own admissions were ignored, the 80/20 claim was timely alleged in 2009 in the Second and Third Amended Petitions. As set forth above, while the 2006 Scheduling Order contained a pleading deadline, that Scheduling Order was superseded by the Court’s 2007 Scheduling Order (and the parties’ agreement). The 2007 Scheduling Order provided that “Any deadline not specifically identified in this Scheduling Order shall be determined by the Local Rules of Court and the Texas Rules of Civil Procedure.” Since there are no local rules setting deadlines to amend however, Tex. R. Civ. P. 63 prevails. It provides a right to amend without leave of Court within 7 days before trial. The Second and Third Amendments were filed more than a year before the June 2010 trial setting. Defendants’ argument to the contrary lacks merit.7 7 This is further reflected by many of the Defendants’ filings made after the expiration of the very PLAINTIFF’S RESPONSE TO MOTION JNOV Page 8 HACLIENTS\DYER\DCI\PLEADINGS\DYER RESPONSE TO JNOV Finally, this Court had the inherent right to change or modify the Scheduling Order. See, In re Estate of Henry, 250 S.W.3d 518, 526 (Tex.App.-Dallas 2008, no pet.). Here, the Court not only allowed the Third Amended Petition it also implicitly modified its previous scheduling orders in so doing. See, /d. The Court acted well within its wide discretion in doing so. First, as set forth above, Defendants were on notice for years of the claims regarding the 80/20 Agreement. The Defendants did not and could not prove that they were surprised or prejudiced by the amendments (filed over a year before trial) nor, as set forth above, did the amendments state new claims. See, Graham v. Adesa, Inc., 145 S.W.3d 769, 775-776 (Tex.App.--Dallas 2004, pet. denied). Further, and importantly, if the court had not changed or modified the scheduling orders, there would have been a violation of due process. As the Court will remember, at the time the 2006 and 2007 Scheduling Orders were signed, neither Contreras nor the Estate of Larry Dyer were parties to this lawsuit. In fact, at the time Contreras was added as a party all of the deadlines specifically identified in the Agreed Scheduling Order had long since passed including the discovery deadline. If the 2006 or 2007 Scheduling Orders governed to preclude Contreras (or the Estate of Larry Dyer) from exercising her rights as a litigant; i.e. denying her the opportunity to amend her pleadings or conduct discovery; that would have constituted a violation of due process. deadlines it now argues were mandated by the Scheduling Orders including the Defendants’ Second Amended Answer filed on March 13, 2008 (after the June 2007 trial setting) and Defendants’ Third Amended Answer filed on September 30, 2009. PLAINTIFF’S RESPONSE TO MOTION JNOV Page 9 H:ACLIENTS\DYER\DCI\PLEADINGS\DYER RESPONSE TO JNOV 2 The claim for breach of the 80/20 Agreement was not barred by the statute of limitations. a Geeting waived the limitations defense. The statute of limitations is an affirmative defense. Tex.R.Civ.P. 94. The defendant thus bears the initial burden to plead, prove, and secure findings to sustain its plea of limitations. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988).This burden includes establishing when the plaintiff's cause of action accrued to demonstrate the bar of limitations. Holland v. Lovelace, S.W.3d 2011 WL 3805519 (Dallas 2011, nwh). Prestige Ford Garland Ltd. P'ship v. Morales, 336 S.W.3d 833, 836 (Tex. App.--Dallas 2011, no pet.).When, as here, the jury was not asked to determine when the cause of action accrued for purposes of supporting a limitations defense, the defense is waived unless the date of accrual was conclusively established under the evidence. /d. The evidence in this case does not conclusively establish the date of accrual of the breach of contract claim. Accordingly, Geeting has waived the limitations defense. Holland, id at pps. 8-11. b The 2005 pleading sets forth the allegation. The statute of limitations for a breach of contract claim is four years. Tex. Civ. Prac. and Rem. Code Section 16.051. Defendants contend that limitations on the claim for breach of the 80/20 Agreement ran in February 2008 because Geeting failed to perform under the Agreement in 2004. Even if the Defendants had conclusively established that the cause of action accrued in February 2004, which is denied, and February 2008 was the limitations cut-off, the allegations set forth in Plaintiff's First Amended Petition in 2005 were sufficient to, and did in fact, put Geeting on fair notice of the claim against him. PLAINTIFF’S RESPONSE TO MOTION JNOV Page 10 H:\CLIENTS\DYER\DCINPLEADINGS\DYER RESPONSE TO JNOV Accordingly, the action was timely filed in 2005. c. Furthermore, the 2009 Third Amended Petition relates back to the 2005 filing. Even if the Court determines that the breach of contract claim was not actually filed until the Third Amended Petition in 2009, that amendment relates back to the 2005 First Amended Petition under Tex. Civ. Prac. & Rem. Code §16.068.Section 16.068 provides in this regard as follows: Amended and Supplemental Pleadings If a filed pleading relates to a cause of action, cross action, counterclaim, or defense that is not subject to a plea of limitation when the pleading is filed, a subsequent amendment or supplement to the pleading that changes the facts or grounds of liability or defense is not subject to a plea of limitation unless the amendment or supplement is wholly based on a new, distinct, or different transaction or occurrence. Tex. Civ. Prac.& Rem. Code Ann. § 16.068 (West). Section 16.068 provides that new facts or claims raised in a subsequent pleading relate back to a timely filed pleading and are not barred unless the amendment or supplemental pleading “is wholly based on a new, distinct, or different transaction or occurrence.” /d. The Dallas Court of Appeals has recently determined that “[A] ‘transaction’ is defined as a set of facts that gives rise to the cause of action premised thereon.” (Emphasis added). Brewster v. Columbia Med. Ctr. of McKinney Subsidiary, L.P., 269 S.W.3d 314, 317-18 (Tex.App.-Dallas 2008, no pet.). Here, the Plaintiff clearly alleged the same set of facts in 2005 as it did in 2008, including, among other things, the allegation “That Plaintiff would enter into a shareholder's agreement allowing Plaintiff to repurchase...an additional 60% of the shares which were owned by Geeting at fair PLAINTIFF’S RESPONSE TO MOTION JNOV Page 11 HACLIENTS\DYER\DCINPLEADINGS\DYER RESPONSE TO JNOV market value after the expiration of three (3) years (allowing Plaintiff to become 80% owner of his business).” (Plaintiff's First Amended Original Petition at | 4.05 number 5 and Plaintiff's Third Amended Petition at 4.05 number 5). Under such circumstances, there can be no question but that if not already sufficiently pled in 2005, the 2009 amendment relates back to that pleading. See, e.g. J.K. and Susie Wadley Research Inst. and Blood Bank v. Beeson, 835 S.W.2d 689, 697 (Tex.App.-Dallas 1992, writ denied) (wife's claim in amended petition relates back to decedent's claim because both arose from the same blood transfusion). 3. There is evidence to support the existence of the 80/20 Agreement. Craig Dyer testified as to the existence of the 80/20 Agreement. His testimony was supported by the testimony of Melissa Contreras, and also Lauri Geeting, one of the Defendants. This is evidence to support the Jury’s answer to Question No. 1. 4. The Defendants’ did not establish lack of consideration. The Defendants also contend that Plaintiff provided no evidence concerning separate consideration for the 20/20 Agreement as referenced above. There was evidence that the 80/20 Agreement was a written agreement that was signed by Joseph Geeting. Therefore, the 80/20 Agreement presumptively imported consideration and the burden was on the Defendants’ to plead and prove the absence of consideration. Simpson v. MBank, N.A., 724 S.W. 2d 102, 107 (Tex. App.—Dallas 1987, writ re’f n.r.e.). The Defendants neither obtained a jury finding that there was a lack of consideration nor did they establish as a matter a law that there was a lack of consideration. The Court cannot disregard Question No. 1 on the basis that there was no separate consideration. PLAINTIFF’S RESPONSE TO MOTION JNOV Page 12 H:ACLIENTS\DYER\DCINPLEADINGS\DYER RESPONSE TO JNOV Cc. The court cannot disregard Question No. 2. The jury found in Question in answer to Question No. 2 that Joseph Geeting failed to comply with the 80/20 Agreement. The Defendants do not contend there is any evidence that Geeting complied with the 80/20 Agreement. Instead, they argue that Plaintiff first had to tender performance before Geeting needed to comply. Geeting took actions designed to and having the effect of depriving Plaintiff of his right as an owner of the business to access the contracts, books and records. Geeting’s obligation of compliance was not limited to selling the stock when Dyer exercised his option. Geeting acted to prevent Dyer from exercising his option. Geeting, the jury found, defrauded Dyer into altering their 50/50 ownership of the company. Further, Geeting admitted that he had destroyed tapes of every meeting conducted in the case and he claims to have lost or destroyed the work logs that pertain to Craig Dyer. Finally, he denies the existence of the 80/20 contract that the jury found to exist. All of this evidence supports the jury finding that Joseph Geeting did not comply with the 80/20 Agreement. 2. Plaintiff's 80/20 claim was timely. See Response in Section B.1. above. D. The court cannot disregard the jury’s answer to Question No. 3. Contrary to Defendants’ claim, Dyer testified that he was ready, willing and able to timely perform his contractual obligations under the 80/20 Agreement. The jury had the prerogative of believing his testimony. The court cannot disregard the jury's answer to Question No. 5. PLAINTIFF’S RESPONSE TO MOTION JNOV Page 13 HACLIENTS\DYER\DCINPLEADINGS\DYER RESPONSE TO JNOV E. The court cannot disregard the jury’s answer to Question No. 5. The jury’s answer that Geeting prevented Dyer from tendering performance is also supported by the evidence that the Defendants’ repeatedly refused to provide the records and books to the Plaintiff so that he could determine the value of the company and thereby, determine the value of the stock. Geeting also engaged in other conduct referenced above. This evidence supports the jury’s finding that Joseph Geeting interfered with Craig Dyer’s tender performance under the 80/20 Agreement. F. The court cannot disregard the jury’s answer to Question No. 6. Defendants contend that there was no evidence that would allow the jury to find that the market value of the stock that Plaintiff had the right to repurchase from Joseph Geeting in February 2004, was $23,823.00. In the cross examination of Joseph Geeting, Plaintiff obtained testimony that the value of DCl’s stock in 2007 was approximately $79.41per share. In further cross examination, Mr. Geeting admitted that Dyer would have needed to pay him $23,823.00 in order to buy him down to 20%. A part owner of a business may testify as to the market value as to the market value of that business's stock. See Akin, Gump, Strauss, Hauer & Feld, LLP v. Nat'l Dev. & Research Corp., 232 S.W.2d 883, 893-94 (Tex. App--Dallas 2007), rev'd on other grounds, 299 S.W.3d 106 (Tex. 2009); Vector Indus., Inc. v. Dupre, 793 S.W.2d 97, 103 (Tex. App. — Dallas 1990, no writ). PLAINTIFF’S RESPONSE TO MOTION JNOV Page 14 H:\CLIENTS\DYER\DCINPLEADINGS\DYER RESPONSE TO JNOV G The court cannot disregard the jury’s answer to Question No. 8 1 The Plaintiff timely alleged a fraud/fraudulent inducement claim. The Defendants first contend that fraudulent inducement was not alleged in the Third Amended Petition and the allowance of a trial amendment was prejudicial and a surprise. In its First Amended Petition, as in its 2009 petitions, Plaintiff alleges fraud in the sale and transfer of stock. This matter is covered in the Introduction and B.1. Fraudulent inducement is a particular species of fraud that arises in the context of a contract and requires the existence of a contract as part of its proof. Haase v. Glazner, 62 S.W.3d 795, 798 (Tex. 2001). The elements for fraudulent inducement are the same as the elements for fraud. See DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 688 (Tex. 1990); see also In Re First MeritBank N.A., 52 S.W.3d 749, 758 (Tex. 2001). To prove fraudulent inducement, the Plaintiff must establish the same elements of fraud as they relate to a contract. Sanson Lonestar, Ltd. Partnership v. Hooks, S.W.3d - 2011 W.L. 3918093, *11 (Tex. App.—Houston [1st District] 2011, no pet. history). Plaintiff's factual allegations showed that the alleged fraud pertained to the 2002 Agreement. Therefore, Geeting was not prejudiced or surprised by the trial amendment. 2. The fraudulent inducement claim was not barred by limitations. See Introduction and Section B.1. above. Defendants next claimed that the claim was barred by limitations. Moreover, as a matter of law limitation does not begin to run on fraud until the fraud is discovered or could have been discovered by the exercise of reasonable diligence. PLAINTIFF’S RESPONSE TO MOTION JNOV Page 15 HACLIENTS\DYER\DCIPLEADINGS\DYER RESPONSE TO JNOV Little v. Smith, 943 S.W.2d 414, 420 (Tex. 1997). The fact that a plaintiff may suspect wrongdoing on behalf of the defendant does not establish as a matter of law that he had discovered the fraud or that he could have discovered the fraud in the exercise of reasonable diligence. Limitations are an affirmative defense. Holland v. Lovelace, S.W.2d, 2011 WL 3805519, *8 (Tex. App. — Dallas Aug. 30, 2011, no pet. list). Geeting had the burden to plead, prove and secure findings to support his affirmative defense. That burden included establishing when the plaintiff's cause of action occurred. If the Geetings intended to rely on the statute of limitations, they should have obtained a fact finding from the jury as to the date Dyer knew of the fraud or could have discovered the fraud by the exercise of reasonable diligence. Geeting’s failure to submit this issue or obtain a jury finding is fatal to his assertion respecting this issue. 3. There is evidence to support the fraudulent inducement finding. Finally, the Defendants’ claim that there is no evidence to support the jury’s finding that Geeting fraudulently induced. The evidence shows that Joseph Geeting claimed to have stepped out of the operations of DCI for the 5 to 6 months prior to the December 2002 Agreement, but the jury could reasonably infer from the evidence that he was using computer spyware to spy on the company’s records. Furthermore, he was moving the company’s money around into a separate secret bank account at Bank One without telling anybody. When the company got into financial straits, he came back with the proposal purportedly to save the company. The evidence shows that Geeting represented that the constraints of a commercial loan required that Dyer had to own less than 20% of the corporation in order to obtain a loan for the company. The evidence PLAINTIFF’S RESPONSE TO MOTION JNOV Page 16 H:\CLIENTS\DYER\DCI\PLEADINGS\DYER RESPONSE TO JNOV showed that after Dyer transferred shares he owned to reduce his ownership interest to 19%, the Defendants made no effort to get a commercial loan. This is some evidence of promissory fraud, i.e., no pretext of performance. Joseph Geeting further testified that all representations in his proposal were material that he had intended for the Plaintiff to rely on and that he knew that the Plaintiff did rely on them, and that it was his intent at all times to obtain 51% of permanent ownership notwithstanding his representations to the Plaintiff that a temporary ownership change was necessary to apply for the loan. Geeting also claimed that not everything in the 2002 plan was true, but when asked on cross examination what part was not true, he could not point out the lie. Instead, he then claimed it was a sales pitch. The jury could believe Dyer and disbelieve Geeting. This evidence supports the jury’s answer to Question No. 8. H. The court cannot disregard the jury’s answer to Question No. 9. The Defendants’ claim that no evidence was proffered at trial to support any fining by the jury concerning expectancy damages with regard to the December 2002 Agreement. Had the fraud not occurred, the Plaintiff would have maintained a 50% ownership. As a 50% owner, he would have been entitled to 50% of all the profits. Based upon the profits that the CPA for DCI testified to over the intervening years, 50% of the profits would have been $149,169.00, which is the amount that the Plaintiff requested. The jury’s finding is within that amount. A jury can make a fact finding of damages within the range of the evidence. Parallax Corp., N.V. v. City of El Paso, 910 S.W.2d 86, 92 (Tex.App.—El Paso 1995, writ denied); see Waterways on the Intercoastal, 283 S>W.2d at 44-45 & n.15; Exxon Pipeline Co. v. Zwahr, 35 S.W.3d 705 (Tex.App.—Houston [1* PLAINTIFF’S RESPONSE TO MOTION JNOV Page 17 HACLIENTS\DYER\DCINPLEADINGS\DYER RESPONSE TO JNOV Dist.] 2000,) rev'd on other grounds, 88 S.W.3d 623 (Tex.2002); cf. Callejo v. Brazos Elec. Power Coop, Inc., 755 S.W.2d 73, 75 (Tex.1988). I The court cannot disregard the jury’s answer to Question No. 10. The Defendants claimed that there is no evidence that Joseph Geeting made any false representation of an existing fact or false promise with respect to the December 2002 Agreement. The evidence discussed in response to Question No. 8 also supports the jury’s finding to Question No. 10. J The court cannot disregard the jury’s answer to Question No. 11. The Defendants argue that there is no evidence to support the damages found by the jury in answer to Question No. 11. The evidence that supports the jury's damage finding in Question No. 8 also supports the jury’s damages answer to Question No. 11. There is no obligation for the jury to find the same amount of damages in answer to Question No. 11 in answer to Question No. 8. K. The court cannot disregard the jury’s answer to Question No. 18 with respect to Joseph Geeting, Lauri Geeting and Richard Geeting. The Defendants contend that the evidence is overwhelming that the conduct of Joseph Geeting, Lauri Geeting and Richard Geeting was within the business judgment tule. However, the evidence showed that Craig Dyer was entitled to compensation from DCI for work that he had performed on behalf of DCI, but that Joseph Geeting, Lauri Geeting and Richard Geeting refused to have DCI pay him the money that it owed him. Furthermore, the evidence showed that Joseph Geeting removed DCI’s money, which could be interpreted by the jury to be an effort to interfere with the operations of the company and to set up Joseph Geeting’s takeover of the company with their help. PLAINTIFF’S RESPONSE TO MOTION JNOV Page 18 H:ACLIENTS\DYER\DCI\PLEADINGS\DYER RESPONSE TO JNOV Moreover, the evidence regarding the establishment of deals between DC] and THOC supported the jury's finding that the Geetings violated their fiduciary duties to DCI. The fact that the jury could have found such actions to be within the business judgment rule does not require them todo so. Furthermore, overwhelming evidence does not meet the standard for a Judgment NOV. The Defendants had to establish conclusively that they violate their fiduciary duties to DCI. See Rush, 56 S.W.3d at 94. Nor can the court disregard the jury's answer to Question No. 18 because it did not incorporate a jury instruction to disregard the Plaintiff's line of questioning. The Court had broad discretion in the instructions it included in the jury charge. Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 791 (Tex. 1995). The court’s rulings and instructions at the time of the questioning was sufficient and there is no indication that the failure to include the instructions resulted in an improper verdict by the jury. Moreover, the Defendants’ argument does not meet the standard for a Judgment NOV. See Section A. L The court cannot disregard the jury’s answers to Questions No. 19-21. The Defendants contend that the jury's answers to Questions 19-21, which covered damages that DCI is entitled to for breaches of fiduciary duty by the Geetings, was unsupported by any evidence. However, the evidence shows that the individual Defendants spent $500,000.00 to deny the Plaintiff his rights to go through the books and records, to fight him on the ownership of stock and to litigate the case through trial. The jury could find that this was an improper usage of DCI’s funds. The amount of damages that DCI found for Joseph Geeting, Lauri Geeting and Richard Geeting was within that evidence. PLAINTIFF’S RESPONSE TO MOTION JNOV Page 19 H:\CLIENTS\DYER\DCI\PLEADINGS\DYER RESPONSE TO JNOV M The court cannot disregard the jury’s answer to Question No. 23. The Defendants contend that Plaintiff failed to present any evidence to support the $10,000.00 jury award against Joseph Geeting for transactions in which he breached his fiduciary duties to DCI. The evidence shows that Joseph Geeting took a $10,000.00 write off in his income taxes as a result of the THOC transaction which was a write off that DCI should have gotten. That evidence supports the jury’s award. N The court cannot disregard the jury’s answers to Question Nos. 25 & 26. The Defendants again contend that Plaintiff provided no evidence supporting Question Nos. 25 & 26, which involve Geeting’s converting any personal property that DCI owned. The evidence shows that at a time that Geeting was supposedly out of the picture, he bought a computer from Best Buy for $922.00 with DCI’s money. DCI had not scheduled the purchase of a new computer. The evidence supports the jury's finding that Geeting converted a computer purchase with DCI’s money for his own use. oO. The court cannot disregard the jury’s answer to Question No. 27. 1 The underlying claims were timely pleaded and proved. Defendants first claimed that the predicate causes of action were not timely pleaded or moved. See answers related to Question Nos. 1-3, 5 and 10-11. 2 A party requesting attorneys’ fees is only required to segregate fees that relate solely to a claim for which fees are unrecoverable. Defendants next claimed that the Court must disregard the jury's award of attorneys’ fees because the fees were not segregated. Legal services that advance both a recoverable and unrecoverable claim need not PLAINTIFF’S RESPONSE TO MOTION JNOV Page 20 H:\CLIENTS\DYER\DCI\PLEADINGS\DYER RESPONSE TO JNOV be segregated. Tony Gullo Motors I, LP v. Chapa, 212 S.W.3d 299, 313-14 (Tex. 2006). Mr. Madden’s testimony showed that the actions for which the Plaintiff requested attorneys’ fees advanced the claims under the 80/20 Agreement and statutory fraud as well as the other claims. Moreover, there is no authority that the court can disregard the jury’s finding of attorneys’ fees because the evidence was not segregated. The court can disregard a question only when there is no evidence to support it or because the fact was established to the contrary as a matter of law. See Brown v. Bank of Galveston, 963 S.W.2d, 511, 513 (Tex. 1998); Gallas v. Car Biz, Inc., 914 S.W.2d, 592, 593 (Tex. App.—Dallas 1995, writ denied). Mr. Madden’s testimony was clearly some evidence of what the amount of the attorneys’ fees should be. See Tony Gullo Motors |, LP, 212 S.W.3d at 314. The Defendants’ argument does not meet the test for a Judgment NOV. Therefore, the court cannot disregard the jury’s answer. P The court cannot disregard the jury’s answer to Question No. 38. The Defendants contend that because the jury found that Craig Dyer wrongfully exercised dominion or control over the property including checks belonging to DCI, they could not answer zero to Question No. 38. The evidence also showed, however, that Craig Dyer was entitled to be paid by DCI the entire amount of the DCI checks. A jury could find that it was improper for Craig Dyer to issue those checks to himself, but that such action did not damage DCI because it owed him the amount of money paid. PLAINTIFF’S RESPONSE TO MOTION JNOV Page 21 H:ACLIENTS\DYER\DCI\PLEADINGS\DYER RESPONSE TO JNOV Q The court cannot disregard the jury’s answer to Question No. 38. The court should reject the Defendants’ contention that Plaintiff cannot assert any equitable claims because he comes before this court with unclean hands. Plaintiff seeks equitable relief with regard to oppression of his shareholder rights only against the individual Defendants, not against DCI. Plaintiff's conduct might be held to be unclean hands related to his obligations to DCI, not against the individual Defendants. The fact that the court might have a basis for denying equitable relief to the Plaintiff against DCI does not justify the denial of equitable relief against the other Defendants. R The court also cannot disregard the jury’s findings because of its definitions of the 80/20 Agreement and the “December 2002 Agreement.” Finally, the Defendants asked the court to disregard all the jury’s findings because its definition of the “80/20 Agreement” and the “December 2002 Agreement” were improper comments on the weight of the evidence. A trial court has great discretion in submitting instructions and definitions to the jury. Interstate Northborough Partnership v. State, 66 S.W.3d 213, 224 (Tex. 2001); Plainsman Trading Co., 898 S.W.2d at 791. In fact, a trial court must submit such explanatory instructions and definitions in a jury charge that will aid and assist the jury in answering the jury questions submitted. Tex.R.Civ.P. 277; Redwine v. AAA Life Ins. Co., 852 S.W.2d at 10, 14 (Tex. App.—Dallas 1993, no writ). An instruction may constitute an impermissible comment on the weight of the evidence, if the Appellate Court would determine that the trial court assumed the truth of the material controverted fact or exaggerated, minimized or withdrew some pertinent evidence from the jury’s consideration. Grenier v. Joe Camp, Inc., 900 S.W.2d 848, 850 PLAINTIFF’S RESPONSE TO MOTION JNOV Page 22 HACLIENTS\DYER\DCI\PLEADINGS\DYER RESPONSE TO JNOV (Tex. App.—Corpus Christi 1995). An instruction will also be held to be an improper comment on the weight of the evidence if it suggests to the jury the trial judge’s opinion concerning the matter about which the jury is asked. Grenier, 900 S.W.2d at 850; Redwine, 852 S.W.2d at 14. Although the trial court may not comment on the weight of the evidence, it may incidentally comment where comment is necessary or proper as part of the explanatory instruction or definition. Tex.R.Civ.P. 277; Grenier, 900 S.W.2d at 850. Finally, the court’s definition of the 80/20 Agreement merely refers to the Plaintiff's allegations that he had an agreement with Joseph Geeting for the right to purchase from Joseph Geeting 60% of the shares owned by Geeting after the expiration of three years. The definition does not assume the truth of a controverted fact, i.e., whether the 80/20 Agreement existed, nor does it indicate any opinion of the court as to which way the jury should answer Questions No. 1-5 or any other question related to the 80/20 Agreement. Similarly, the court’s definition of the “December 2002 Agreement” referred to the Agreement as relating to the restructure of the ownership of DCI's shares. It was undisputed that there were8 agreements relating to the restructuring of the ownership of DCl’s shares in 2002. The court’s definition does not assume the truth of any material controverted fact, exaggerate, minimize or withdraw pertinent evidence, nor suggest to the jury the trial court's opinion regarding the matter about which the jury was asked. The Court’s definitions were not a comment upon the weight of the evidence. Furthermore, there is no authority that would justify the court disregarding the jury’s 8 Although, as found by the jury, fraudulently induced by Geeting. PLAINTIFF’S RESPONSE TO MOTION JNOV Page 23 H:ACLIENTS\DYER\DCI\PLEADINGS\DYER RESPONSE TO JNOV answers and giving the Defendants a judgment contrary to the jury’s findings based upon any error by the court in instructing the jury. The Defendants’ argument does not meet the standard for a Judgment NOV. ML. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that the court deny in toto Def