Pension Advisory Grp., Inc. v. Fid. Sec. Life Ins. Co.
| Decision Date | 30 September 2016 |
| Docket Number | NUMBER 13-14-00566-CV |
| Parties | PENSION ADVISORY GROUP, INC. AND PAUL D. HINSON, Appellants, v. FIDELITY SECURITY LIFE INSURANCE CO., Appellee. |
| Court | Texas Court of Appeals |
On appeal from the 343rd District Court of Aransas County, Texas.
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Appellants, Pension Advisory Group, Inc. and Paul D. Hinson (collectively "Hinson"), appeal from the trial court's summary judgment in favor of appellee, Fidelity Security Life Insurance ("Fidelity"). By eight issues, Hinson contends that (1) Fidelity failed to prove entitlement to summary judgment on Hinson's claims for business disparagement, tortious-interference with an existing contract, tortious-interference with prospective business relationships, defamation, conspiracy, and breach of fiduciary duty (issues 1-6); (2) Fidelity failed to prove entitlement to exclusion of Hinson's expert witnesses (issue 7); and (3) "Because [Fidelity] waived their evidentiary complaints by offering the same or similar evidence into evidence, other [Hinson] summary judgment evidence should not have been struck" (issue 8). We affirm in part and reverse and remand in part.
After consulting Frank Renfro, the trustee of a defined benefit pension plan for Star Consultants, Inc., Hinson, the plan's general agent, suggested that the plan be converted to an annuity as a "412(e)(3) plan." Hinson then contacted George Evanson from CJA & Associates, Inc. ("CJA") to find the best annuity plan. Renfro purchased an annuity from Fidelity, and Hinson and CJA received commissions for the sale.
Subsequently, Renfro requested that his attorney, Deborah Welch, evaluate his personal estate plan, which included the Fidelity annuity. According to Fidelity, at some point after becoming aware of this evaluation, Hinson requested that Renfro sign a commission disclosure notice concerning the annuity. Fidelity asserts that "Hinson claimed that he had a copy of the notice with Renfro's signature"; however, Renfro and Welch denied that the signature was authentic. Renfro requested a refund of his money because he claimed he was not aware that a commission had been paid to Hinson.
Subsequently, Fidelity representatives decided to refund the money to Renfro, and according to Hinson, they did not call him or CJA to discuss Renfro's complaint. Pursuant to its contract, Fidelity terminated the annuity and exercised its right to recover commissions from CJA and Hinson in the amount of $337,000. According to Hinson, Fidelity's employee, David Smith, then informed CJA's employee, Ray Ankner, that Fidelityhad cancelled Renfro's annuity due to a complaint made by Renfro concerning the commission disclosure notice and that Fidelity was seeking reimbursement of the commission. Hinson further claims that Fidelity's general counsel e-mailed CJA's general counsel informing him that Fidelity was cancelling Renfro's annuity plan "because Hinson did not disclose the commissions [to Renfro] and did not get proper documentation for the Plan." Hinson states, "Later, [Fidelity's general counsel] specifically accused Hinson of forging the [commission] Disclosure Notice." According to Hinson, the CJA requested an investigation and strongly disagreed that Hinson had forged Renfro's signature.
Hinson sued Fidelity, among others, for business disparagement, defamation under both libel and slander, tortious interference with contracts, conspiracy, breach of fiduciary duty, fraud, breach of contract, and tortious interference with prospective contracts. Fidelity filed motions for no-evidence and traditional summary judgment. The trial court granted both motions. The trial court also granted Fidelity's motion to strike Hinson's summary judgment evidence, which included the depositions of James Ferguson and Stuart J. Wright. This appeal followed.1
In response to Fidelity's motions for summary judgment, Hinson offered the deposition testimony of Ferguson and Wright. However, Fidelity objected to their testimony regarding damages and malice on the basis that the testimony was conclusory, speculative, not based on specialized knowledge or a reliable foundation, and not based on any methodology. The trial court granted Fidelity's motion to strike Hinson's summaryjudgment evidence. By his seventh issue, Hinson argues that the trial court improperly granted Fidelity's motion to strike Ferguson's and Wright's deposition testimony.
On appeal, Hinson argues that Ferguson's and Wright's depositions support his claim of damages. However, Hinson has not cited the appellate record in his brief to support any of his contentions. See TEX. R. APP. P. 38.1(f), (h). Instead, Hinson has cited his voluminous appendix to support his appellate claims. Citing the appendix is not a substitute for citing the record. Omohundro v. Ramirez-Justus, 392 S.W.3d 218, 221 (Tex. App.—El Paso 2012, pet. denied) (). And, this Court is not required to search the record for the facts supporting a party's position. Id. Thus, error, if any, may be waived. See id. However, to the extent we have been able to determine items in the clerk's record upon which Hinson relies, we have done so. See id. But, as this is a voluminous record, to the extent we have been unable to determine which documents in the clerk's record upon which Hinson relies, we conclude he has waived error, if any. See id. To the extent we may have reviewed documents or evidence that Hinson amended or that he has not meant to cite, we conclude he has waived error, if any, by failing to cite the Clerk's record in his brief. See id. Within these parameters, we will address Hinson's issues.
In the context of lost profits, the party offering expert testimony must show that the underlying data supporting the expert's opinion is reliable and based on an acceptable methodology. See DaimlerChrysler Motors Co., LLC v. Manuel, 362 S.W.3d 160, 191 (Tex. App.—Fort Worth 2012, no pet.). "The amount of the loss must be proven bycompetent evidence with 'reasonable certainty' by whatever method is chosen, but the rule regarding such proof is intended to be 'flexible enough to accommodate the myriad circumstances in which claims for lost profits arise.'" Id. (citing and quoting Tex. Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.2d 276, 279 (Tex. 1994)). An expert's opinion regarding lost profits must at the least "be based upon objective facts, figures, or data from which the amount of lost profits may be ascertained." Id. The expert must connect the data relied upon to his opinion and "show how that data is valid support for the opinion reached." Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 642 (Tex. 2009). We review the admissibility of evidence under an abuse of discretion standard. Id. at 638; Ordonez v. Solorio, 480 S.W.3d 56, 67-68 (Tex. App.—El Paso 2015, no pet.).
As to damages, Ferguson stated, at his deposition, that he would no longer send any of his clients to Hinson because of the forgery allegations. Ferguson testified that Hinson suffered actual damages in the amount of $800,000 to $1.2 million in new business over the next several years. Ferguson based his calculations of actual damages on the fact that he would no longer send clients to Hinson. However, when asked if he had conducted any analysis to support his opinion, Ferguson responded, "No." When asked how much business he had sent Hinson in the past year, Ferguson stated that he had not been in business the prior year, but that from around 2003 until 2013, he had sent Hinson business of "about $400,000" per year. The following exchange then occurred:
Given Ferguson's admission that he relied on no data, performed no analysis of any data, had speculated about the damages, and that there is no evidence that Ferguson based his opinion on any accepted methodology, we cannot conclude that the trial court abused its discretion by granting Fidelity's motion to strike Ferguson's deposition regarding his opinion of damages. See Whirlpool Corp., 298 S.W.3d at 638; Ordonez, 480 S.W.3d at 67-68. We overrule Hinson's seventh issue to the extent he complains that the trial court improperly excluded Ferguson's testimony on damages.2
Wright testified, at his deposition, that he could not identify any specific business that Hinson had lost as a result of any issue in this lawsuit and that he had no knowledge of Hinson's business. When asked if he had "any opinions as to the amount of any damages [Hinson] suffered" and "You can't identify a single piece of business that he's lost as a result of any issue in this lawsuit," he responded, "No." Wright stated that in his opinion Hinson would not be successful in launching a product that he had developed due to the allegations made against him. However, Wright later acknowledged that he had no idea whether Hinson's product would be successful. Wright claimed that he would no longer send any business to Hinson, but he admitted that he had no business to refer to Hinson and could not identify any clients who he would not refer to Hinson.
Given that Wright admitted that he had no knowledge of Hinson's business and could not identify any actual damages Hinson has suffered, we cannot conclude that the trial court abused its discretion by granting Fidelity's motion to strike Wright's testimony. See Whirlpool Corp., 298...
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