In re Durant
| Decision Date | 11 February 2016 |
| 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 |
FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
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 appeal from the trial court's judgment awarding appellee Andrew Anderson $2,527,151, plus pre-and postjudgment interest and costs, on his claims against them. We reverse and render a take-nothing judgment.
Background Facts
Anderson began working for Durant in 2001 as a used car manager in Weatherford, Texas at one of Durant's dealerships. He worked his way up through the company, and in 2006, Anderson was promoted to general manager.
In February 2011, Anderson claims that Durant offered him the opportunity to be the dealer owner/operator of two of the Durant dealerships in Granbury, Texas. According to Anderson, Durant offered him 10% "of the land and the dealerships they sit on." Durant claims that he offered Anderson, if he could meet certain requirements by the end of the year, a buy-in opportunity for the Hyundai dealership only. Durant told Anderson he would give him the same offer for the Toyota dealership if Toyota approved it. Durant denied offering Anderson any interest in the land. Both Anderson and Durant acknowledged that no written agreement was ever signed. Anderson moved over to the Granbury dealerships. He claimed his title became dealer partner/principal.
On December 8, 2011, Durant announced that he was negotiating a sale of the dealerships to a third party. Anderson secretly recorded the meeting during which Durant made the announcement. At a Christmas party on December 15, 2011, Durant gave Anderson a check for $75,000. Andersontestified that it was a Christmas bonus. Durant claimed it was in lieu of the buy-in opportunity for 10% ownership interest. No document was signed regarding the purpose of the check.
On December 26, 2011, Durant held a meeting for all of the used car managers. During the meeting, Durant yelled at Anderson for buying used cars directly from a wholesale dealer named Jake DeKoker. Anderson claims that he had never been told not to buy from DeKoker.
Two days later, Anderson and Durant met again. Robert Cote, a consultant for Durant, was also present at the meeting. According to Anderson, Durant accused him of taking kickbacks on cars he purchased from DeKoker. Durant claims that he only discussed his concern that Anderson was mismanaging the used car inventory at the Granbury dealerships. Cote estimated that cars that Anderson had purchased from DeKoker lost about $30,000. Cote testified that in the meeting, Anderson admitted that he had purchased the cars from DeKoker when he should not have, agreed with Cote's estimation of lost profit on the cars, volunteered to pay that amount back to Durant, and agreed to take a polygraph exam.
Anderson took a polygraph exam on January 4, 2012, and the results came back as inconclusive. Anderson immediately requested a meeting with Durant, Cote, and Don Allen, co-owner of the Durant entities. He secretly recorded the meeting on his phone. During an argument over the $30,000, Durant told Anderson, "Well, if you think that's wrong, . . . you can hit the dirt."Cote testified that he believed that Anderson was moving to the Weatherford Chevrolet store. Anderson thought Durant meant that he was fired. Anderson did not return to work at the Durant entities.
After Anderson left, he learned that rumors were circulating that he had been fired for taking kickbacks. On January 26, 2012, Anderson sued Durant, the Durant entities, and Cote for defamation, and he sued Durant and the Durant entities for breach of contract, quantum meruit, fraud, fraudulent inducement, promissory estoppel, and attorney's fees.2 Durant and the Durant entities filed counterclaims against Anderson for breach of fiduciary duty and conversion. In August 2012, Anderson amended his petition to include Doyle Maynard, Elliot Michelson, Jerry Rash, and Gary Michael Deere in his defamation cause of action.3 Maynard and Rash were Durant employees. Michelson ran off-site auctions for Durant, and Deere was a wholesale car dealer who bought cars from the Durant entities. Anderson also included Silverado Life ReinsuranceCompany, the entity that owns the real estate where the Durant Hyundai dealership is located, in his breach of contract, quantum meruit, fraud, fraudulent inducement, promissory estoppel, and attorney's fees claims. Anderson added a claim of conspiracy against Durant and Allen.
After a seven-week jury trial, the jury found the following in relevant part:
Based on the jury's findings, the trial court awarded Anderson $323,150 from Durant and Durant Toyota for fraud, $60,000 from Durant and Durant Hyundai for fraud, $2,144,001 from Durant for defamation, plus interest and costs. The trial court ordered that Anderson could elect to recover from Cote, Maynard, Michelson, Rash, and Deere for the defamation damages in proportion to their liability. Durant, the Durant entities, Cote, Deere, Michelson, Rash, and Maynard appealed.
Discussion
In their first two issues, Durant and the Durant entities challenge the jury's findings on Anderson's fraud cause of action. The jury found that Durant, Durant Toyota, and Durant Hyundai made a fraudulent misrepresentation to Anderson. The jury answered the question regarding fraud damages as follows:
The jury answered "no" to Question No. 1; therefore, Durant argues, there was no contract on which to base benefit-of-the-bargain damages.
Anderson argues that the contract underlying his fraud claim is not the same contract that the jury failed to find in Question No. 1. The fraudulent contract, he claims, is the same agreement addressed in Question No. 1 "less the real estate." He bases this argument on the jury's award of $0 for the value of the real estate of the two dealerships in the fraud damages question.
We cannot infer, as Anderson asks us to do, from the jury's award of zero damages for the real estate that it found an agreement described nowhere in the jury charge; all we can discern is that the jury found that Anderson was not entitled to compensation for any injury he may have suffered relating to the real estate. See Macias v. Ramos, 917 S.W.2d 371, 376 (Tex. App.—San Antonio 1996, no writ) ( that jury's answer of "-0-" for damages question did not imply that the plaintiff did not suffer injuries, only that the plaintiff was not entitled to compensation for those injuries); Frank B. Hall & Co. v. Buck, 678 S.W.2d 612, 625 (Tex. App.—Houston [14th Dist.] 198...
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