In re Durant
| Decision Date | 19 March 2020 |
| Docket Number | No. 02-14-00283-CV,02-14-00283-CV |
| Parties | JERRY V. DURANT; JERRY DURANT, INC. D/B/A DURANT TOYOTA AND D/B/A JERRY DURANT TOYOTA; JERRY DURANT HYUNDAI, LLC; DOYLE MAYNARD; ROBERT G. COTE SR.; GARY MICHAEL DEERE; JERRY RASH; AND ELLIOT "SCOOTER" MICHELSON, Appellants v. ANDREW ANDERSON, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 153rd District Court Tarrant County, Texas
Before Gabriel and Bassel, JJ.1
Appellee Andrew Anderson was a highly placed employee in appellant Jerry V. Durant's car-dealership empire, consisting of several Toyota, Hyundai, and General Motors dealerships in the Dallas-Fort Worth metroplex (Auto Group). Durant orally offered Anderson a 10% ownership interest in Auto Group's two underperforming Granbury dealerships—a Toyota dealership and a Hyundai dealership (the Granbury dealerships)—if Anderson would leave Durant's Weatherford dealership and manage the underperforming ones. Anderson accepted. Less than one year later, Anderson was out of a job and he sued Durant and the Granbury dealerships for breach of contract and fraudulent inducement. He asserted a defamation claim against Durant, multiple Auto Group employees, and several non-employees for statements they allegedly made regarding the reason Anderson no longer worked for Auto Group. After a seven-week jury trial, the jury found in favor of Anderson on his fraudulent-inducement and defamation claims but not on his breach-of-contract claim. The trial court entered judgment on the jury's awarded damages for Anderson's loss of the benefit of Durant's oral offer, past and future reputational injuries, past and future mental anguish, and past and future lost income.
We reversed the trial court's judgment, concluding that (1) the fraud recovery could not stand because the jury had found there was no breach of contract and (2) the evidence of defamation damages was legally insufficient. Durant v. Anderson,No. 02-14-00283-CV, 2016 WL 552034, at *3-8 (Tex. App.—Fort Worth Feb. 11, 2016) (mem. op.). The Supreme Court agreed that some of the awarded defamation damages—past and future lost income, future mental anguish, and future reputational damage—were not supported by legally sufficient evidence. Anderson v. Durant, 550 S.W.3d 605, 621, 623-24 (Tex. 2018). But the Court found legally sufficient evidence to support the remainder of the defamation damages and concluded that because the fraud question in the jury charge incorporated the required elements of a contract, Anderson was entitled to recover benefit-of-the-bargain damages for fraudulent inducement. Id. at 615-17, 619-25. The Court remanded all unaddressed issues to this court. Id. at 623 n.95, 624 & n.101.
As an intermediate appellate court, we are tasked with determining legal and factual questions. We look at legal questions de novo. In other words, it is what it is. But we look at factual questions through a deferential lens and are barred from second-guessing a jury's resolution. Here, as in most cases, the standards and scopes of our review dictate the outcome. Although all parties discordantly argue the import of the facts adduced at trial, we must be mindful of the deference we give to a jury's determination of factual issues, the trial court's discretion, and our duty to ensure the applicable legal precepts were correctly submitted. Relying on these boundaries and on the Supreme Court's explicit instructions, we affirm the trial court's judgment regarding Anderson's fraudulent-inducement claim. See Tex. R. App. P. 43.2(a). But these same standards dictate that we must reverse the trial court's judgment regardingone employee's defamation liability, rendering a take-nothing judgment as to that employee. See Tex. R. App. P. 43.2(c). Based on our conclusion that the amounts of Anderson's remaining general defamation damages are supported by factually insufficient evidence, we suggest a remittitur. See Tex. R. App. P. 46.3. The response to this suggested remittitur dictates whether we will affirm the defamation judgment as modified or whether we will reverse the defamation judgment regarding the remaining defendants' liability and remand for a new trial on liability and on those damages supported by legally sufficient evidence. See Tex. R. App. P. 43.2(b), (d), 43.3, 46.3.
The underlying facts have been exhaustively recounted by the Supreme Court, by this court, and by the parties in over 500 pages of briefing. Because some claims have been disposed of by this court or by the Supreme Court, we necessarily will discuss the facts in light of the issues presented to us on remand and in light of the facts as found by the jury. And in the interest of coherence, we will describe here the events in broad brushstrokes, saving the minutiae for the relevant substantive discussion.
In 2001, Anderson began working for Auto Group as the used-car manager at Durant Nissan in Weatherford. Anderson received several promotions and in 2006,he was named the general manager of all but one of Auto Group's dealerships in Weatherford.2 Anderson also was named to Auto Group's board of directors. The Supreme Court noted that Anderson's career "flourished" while he was employed by Auto Group. Anderson, 550 S.W.3d at 610.
In February 2011, Durant asked Anderson to leave his position in Weatherford to become the general manager of the Granbury dealerships, which historically underperformed. "[I]n exchange" for his promise to leave his "relatively [more] secure position" in Weatherford, Anderson averred that Durant offered him a 10% ownership interest in the Granbury dealerships and a 10% ownership interest in the real property associated with those dealerships. Id. Durant asserted that his offer was conditional—if Anderson accepted the position and if the Granbury dealerships met a $400,000 net-profit threshold, Anderson would have the option to buy the offered ownership interest.
In any event, Anderson accepted the oral offer and became the general manager of the Granbury dealerships shortly thereafter. An article appeared in the Hood County News in May 2011, announcing that Anderson had been named "General Manager and Partner/Principle" of the Granbury dealerships. Durant was quoted in the article as saying Anderson had been named "General Manager andPartner" of the Granbury dealerships. This same language was used in a press release and a marketing brochure for the Granbury dealerships.
In December 2011, Durant and Don Allen, the president of Auto Group, reached an agreement to sell Auto Group's dealerships for $44 million to Pat Lobb.3 Durant announced the deal to the general managers at a December 8 meeting and stated that anyone with a buy-in agreement would be "taken care of." Anderson believed this meant that he "would get [his] 10 percent of the two Granbury stores."
On December 15 at the Christmas party for Auto Group's Weatherford employees, Anderson and two other managers with written ownership agreements—Kevin Reeves and Gary Burdick—were each given $75,000. Durant later argued that the money was in lieu of the promised ownership interest in the Granbury dealerships. Anderson believed it was a year-end bonus for good performance. Indeed, other employees who did not have a promised ownership interest in any of Auto Group's dealerships received significant sums at the party. Reeves and Burdick believed the checks were buy outs of their ownership interests.
Shortly after December 15, Durant received a tip from another car dealer that he should "[c]heck" his inventory. Durant, knowing that there was a problem with used cars sitting on the Granbury dealerships' lots too long, contacted Allen about the problem. Allen tasked David Risinger, Auto Group's general manager for used cars,with auditing the Granbury dealerships' inventories. Risinger reported to Durant that the used cars at the Granbury dealerships were worth $375,000 less than what had been paid for them. Durant surmised from this information that Anderson had been buying used cars from a wholesaler, Pro Financial Company, paying more for them than they were worth, and taking money—kickbacks—from the wholesaler for doing so. Durant told appellant Robert G. Cote Sr., Auto Group's vice president of finance, "[G]o down there and see where the cars come from."
On Christmas Day, Durant met with appellant Doyle Maynard, the general sales manager for the Granbury Toyota dealership, whose direct supervisor was Anderson. Maynard informed Durant that he had had concerns about the price paid for and the condition of the used cars Anderson had bought from Pro Financial and that he had previously raised those concerns to Anderson to no avail. Maynard told Durant that "something wrong might be going on" because
On December 26 at a meeting with the used-car managers, Durant publicly criticized Anderson for his used-car inventory and for buying cars from Pro Financial after Durant had previously denied Anderson's request to do so. Later that day, Durant and Anderson met in Durant's office. Durant again expressed his displeasure with Anderson. At around this same time, Cote reported to Durant that his investigation had revealed that Anderson had bought fifteen cars directly from ProFinancial. Durant told Cote that it appeared Anderson was taking kickbacks from Pro Financial.
On December 28, Anderson met with Durant and Cote, and Durant told Anderson that Durant had "reliable sources" that Anderson had "taken kickbacks on these cars." Durant then asked Cote to read a polygraph-consent form to Anderson that detailed the accusations:
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