Szczepanik v. First Southern Trust Co.
| Decision Date | 02 June 1994 |
| Docket Number | No. D-4546,D-4546 |
| Citation | 883 S.W.2d 648 |
| Parties | S. Richard SZCZEPANIK, et al., Petitioners, v. FIRST SOUTHERN TRUST COMPANY, Respondent. |
| Court | Texas Supreme Court |
Harvey G. Joseph, John A. Koepke, and A. David Gross, Dallas, for petitioners.
Thomas K. Boone, Monte M. Bond, Dallas, and June E. Higgins, Spring, for respondents.
ON APPLICATION FOR WRIT OF ERROR TO THE COURT OF APPEALS
FOR THE FIFTH DISTRICT OF TEXAS
This case involves alleged lost profits sustained by First Southern Trust Company (FST), a wholly owned subsidiary of First Southern Holding Company (FSH), when certain officers and employees left FST and formed a competing business.
FST manages retirement assets primarily for retired airline pilots. In 1991, after serving for a brief period of time as president of FST and FSH, Richard Szczepanik resigned and formed a new corporation, Retirement Advisors of America, Inc. (RAAI), with other former officers and employees of FST and FSH. RAAI also manages retirement assets for retired airline pilots. Some of FST's clients transferred their retirement assets totalling $36 million from FST to RAAI. Szczepanik sued FSH for payment of his salary during the time he had served as president of FST and FSH. FST counterclaimed under numerous theories for damages resulting from the loss of customers to RAAI. After several days of testimony offered in FST's case in chief, the trial court excluded evidence of damages by FST under TEX.R.CIV.P. 215(5) for failing to supplement discovery that sought information as to the amount of damages, the method of calculating damages, and expert witnesses who would testify as to damages. The trial court granted Petitioners' motion for instructed verdict on the grounds that there was no evidence of damages. The court of appeals reversed and remanded the case holding that the evidence raised a fact issue concerning lost profits damages that precluded an instructed verdict on FST's claims, but affirmed the trial court's judgment awarding Szczepanik $97,803 on his salary claim. 880 S.W.2d 10. Because we hold there is no evidence of lost profits damages, we reverse the judgment of the court of appeals concerning the instructed verdict and remand to the court of appeals for consideration of FST's other points of error.
In reviewing the granting of an instructed verdict, we must determine whether there is any evidence of probative force to raise a fact issue on the material questions presented. Collora v. Navarro, 574 S.W.2d 65, 68 (Tex.1978). We consider all of the evidence in a light most favorable to the party against whom the verdict was instructed and disregard all contrary evidence and inferences; we give the losing party the benefit of all reasonable inferences created by the evidence. White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262 (Tex.1983). If there is any conflicting evidence of probative value on any theory of recovery, an instructed verdict is improper and the case must be reversed and remanded for jury determination of that issue. White, 651 S.W.2d at 262.
At trial, FST attempted to offer evidence of the lost profits it sustained and would sustain as a result of the transfer of assets to RAAI. FST offered evidence that $36 million in account assets were transferred to RAAI and that FST collected annual fees of .75% to 1% on account assets. FST also offered testimony that absent the interference of RAAI, FST would have expected to retain its customers' accounts for the lifetime of the individual account holders. FST also offered evidence that in 1991 it managed assets of $350 million and expected to make a profit of $250,000 to $500,000 per year beginning in 1991.
Recovery of lost profits does not require that the loss be susceptible to exact calculation. Texas...
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