In Re Estate of Robert S. Castleman v. .

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION

No. 04-22-00697-CV

IN RE ESTATE OF Robert S. CASTLEMAN, Deceased

From the Probate Court No. 2, Bexar County, Texas
Trial Court No. 2017-PC-1224
Honorable Veronica Vasquez, Judge Presiding

Opinion by: H. Todd McCray, Justice

Sitting: Rebeca C. Martinez, Chief Justice
H. Todd McCray, Justice
Velia J. Meza, Justice

Delivered and Filed: December 23, 2025

AFFIRMED IN PART, REVERSED AND REMANDED IN PART

This appeal arises from the trial court’s final judgment, entered on July 20, 2022, based on

the jury’s verdict, entered on May 24, 2022. On appeal, Appellants, James Roy Young (“Roy

Young”), Billie Young, and Castleman & Young Construction, Inc. (“CYC”), raise twelve issues.

In addition, Appellee, Billie F. Castleman, individually, as independent administratrix of the estate

of Robert S. Castleman, and derivatively on behalf of CYC (“Castleman”), raises an additional
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issue in a cross-appeal. We will affirm in part, reverse in part, and remand for additional

proceedings consistent with this opinion. 1 0F

BACKGROUND

Roy Young, Billie Young, and Robert Castleman met when Robert Castleman was 18 or

19 years old. The three became friends and, after the company that Robert Castleman worked for

and the Youngs did business with went out of business, they started a business together, named

Castleman & Young Construction, Inc. (“CYC”). The three friends, and Robert Castleman’s wife,

Billie Castleman, worked for CYC. But CYC’s ownership consisted of only two parties—Roy

Young, who held 51% of the company’s shares, and Robert Castleman, who held 49%.

After they had been in business for some time, on June 17, 2003, Roy Young, Robert

Castleman, and CYC entered into an “Agreement Among Shareholders and Corporation to

Purchase Shares of Deceased Shareholder” (the “Shareholder Agreement”). The Shareholder

Agreement established the rights and duties of Roy Young, Robert Castleman, and CYC in the

event that either Roy Young or Robert Castleman passed away. 2 1F

On February 1, 2017—nearly fourteen years after signing the Shareholder Agreement, and

nearly 40 years after meeting the Youngs, Robert Castleman passed away at the age of 56.

1
On August 27, 2025, this court issued an opinion and judgment dismissing the case for want of jurisdiction. On
September 11, 2025, Appellants filed a motion for rehearing challenging the portion of this court’s opinion finding
that because CYC and the Youngs failed to raise an affirmative defense under Rule 93, they waived the arguments
that the obligations to pay Robert Castleman’s unpaid salary and to distribute any undistributed profits to the
representative of Robert Castleman’s estate were obligations of CYC, and not of Roy Young individually. After
consideration, we deny the motion for panel rehearing, withdraw our August 27, 2025 opinion and judgment and
substitute this opinion and judgment in their place.
2
The agreement states that it “shall be interpreted in accordance with and governed by the laws of the State of
Tennessee applicable to agreements made and to be performed entirely within such state.” Neither party, however,
has either argued or offered any evidence to show that Tennessee law differs from Texas law, nor has either party
requested that either the trial court or this court take judicial knowledge of Tennessee’s law. Accordingly, we presume
Tennessee law is the same as Texas law. See Vince Poscente Internat’l, Inc. v. Compass Bank, 460 S.W.3d 211, 219
(Tex. App.—Dallas 2015, no pet.); Burlington N. & Santa Fe Ry. Co. v. Gunderson, Inc., 235 S.W.3d 287, 290 (Tex.
App.—Fort Worth 2007, pet. withdrawn).
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After Robert Castleman’s death, Billie Castleman filed an Application to Determine

Heirship and For Letters of Independent Administration on April 4, 2017. The case was filed in

Probate Court Number 2 of Bexar County and assigned cause number 2017PC1224.

On May 25, 2018, Castleman filed an original petition, naming the Youngs as the

defendants and alleging a number of claims, including breach of fiduciary duty and breach of

contract. This pleading initiated a new case, which was filed in the 224th Judicial District Court in

Bexar County and was assigned cause number 2018CI09745.

On June 13, 2018, CYC filed a first amended petition in intervention in the probate

proceeding, asserting causes of action against Castleman for tortious interference with contract,

breach of fiduciary duty, and breach of contract.

On July 9, 2018, the Youngs filed an answer in the district court case, asserting a general

denial, that Castleman lacked standing, that Castleman lacked authority, and that Castleman’s

claims were barred by the statute of limitations.

On June 7, 2019, Castleman’s original petition was transferred to the probate court and was

consolidated with the probate proceedings.

The Youngs and CYC filed a supplemental answer on January 17, 2020, asserting the

affirmative defenses of prior material breach and repudiation.

The case was tried to a jury from May 17, 2022, through May 20, 2022, and from May 23,

2022, through May 24, 2022.

The trial court entered final judgment on July 20, 2022.

The Youngs and CYC timely appealed on October 21, 2022. 3 Castleman also timely filed
2F

a notice of appeal, on October 28, 2022. 4 3F

3
See TEX. R. APP. P. 26.1(a), 26.3.
4
See TEX. R. APP. P. 26.1(d).
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DISCUSSION

In their appellants’ brief, the Youngs and CYC raise twelve points of error. In addition,

Castleman raises one point of error in her appellee’s and cross-appellant’s brief.

A. Is Roy Young Responsible for Obligations to Pay Castleman’s Unpaid Salary and Pro-rata
Share of Net Income?

In their first two issues, the Youngs and CYC argue that the trial court erred by awarding

damages to Castleman based on the allegation that the Youngs breached a contract with Robert

Castleman. Specifically, the Youngs and CYC argue that, although CYC had a duty to pay

Castleman for any unpaid salary that he had earned and had a contractual obligation to distribute

to Castleman the “pro-rata share of the ‘net income’ on any completed jobs or works in progress

as of the date of” Robert Castleman’s death, the Youngs had no contractual obligation to pay

Castleman anything. Thus, according to the Youngs and CYC, the trial court erred by awarding

contractual damages against Roy Young. We conclude Appellants have waived these challenges.

A party’s contention that a plaintiff sued the wrong party is an affirmative defense that is

waived if not raised. See TEX. R. CIV. P. 93(4). Similarly, “the failure to raise the issue of capacity

through a verified plea results in waiver of that issue both at trial and on appeal.” Docken v. Bank

Of Am., N.A., No. 04-04-00380-CV, 2005 WL 900146, at *2 (Tex. App.—San Antonio Apr. 20,

2005, no pet.) (mem. op); see also TEX. R. CIV. P. 93 (2); Docken, 2005 WL at 2 n.2 (noting that

the contention that “the defendant is not liable in the capacity in which he is sued must be verified

by affidavit”).

“Texas law is clear that a challenge to a party’s privity of contract is a challenge to

capacity[.]” Repsol Oil & Gas USA, LLC v. Matrix Petroleum, LLC, 708 S.W.3d 641, 696–97

(Tex. App.—San Antonio 2023, pet. denied) (quoting Douglas-Peters v. Cho, Choe & Holen, P.C.,

No. 05-15-01538-CV, 2017 WL 836848, at *10 (Tex. App.—Dallas Mar. 3, 2017, no pet.) (mem.

op.)); see also John C. Flood of DC, Inc. v. SuperMedia, L.L.C., 408 S.W.3d 645, 651–52 (Tex.
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App.—Dallas 2013, pet. denied) (“[P]rivity is established by proving the defendant was a party to

an enforceable contract with either the plaintiff or someone who assigned its cause of action to the

plaintiff.”).

The Youngs and CYC contended at trial that Castleman only pleaded a breach of contract

action against Roy Young, that she did not plead a breach of contract claim against CYC, and that

the breach of contract claims would need to be brought against CYC. But the record in this case

clearly shows that the Youngs and CYC did not file a verified pleading raising any alleged defect

in the capacity in which Roy Young was sued or raising any alleged defect in the parties. Further,

at trial, the trial court found “that pursuant to Texas Rules of Civil Procedure Number 93, Mr.

Young has waived his objection to the capacity in which he has been sued”—a finding that the

Youngs and CYC do not contest on appeal.

The failure to these affirmative defenses results in a waiver of these issues. See, e.g. 1776

Energy Partners, LLC v. Marathon Oil EF, LLC, 692 S.W.3d 564, 583-84 (Tex. App.—San Antonio

2023, no pet.) (concluding that appellants’ challenges to liability for another’s contractual debts is a

“lack of capacity” affirmative defense that must be specifically pleaded and verified by affidavit or it

is waived). Accordingly, CYC and the Youngs have waived the arguments contained in their first

two points of error, that the obligations to pay Robert Castleman’s unpaid salary and to distribute

any undistributed profits to the representative of Robert Castleman’s estate were obligations of

CYC, and not of Roy Young individually. See TEX. R. CIV. P. 93.

B. Did Roy Young Exercise His Option to Purchase Castleman’s Shares in CYC and then
Breach His Agreement to Purchase the Shares?

In their third point of error, the Youngs and CYC contend the trial court erred by awarding

breach of contract damages against Roy Young based on Roy Young’s alleged failure to purchase

Robert Castleman’s shares of CYC.

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1. Background

In the Shareholder Agreement, Robert Castleman and Roy Young agreed as follows:

Robert Castleman and Roy Young further agreed that (1) CYC would purchase the shares if Roy

Young did not exercise his option to purchase the shares, and (2) the purchase price for all the

shares held by Robert Castleman would be $200,000. Finally, the Shareholder Agreement allowed

the shareholders or CYC to obtain life insurance policies insuring either or both of Robert

Castleman and Roy Young, for the purpose of funding the obligations under the Shareholder

Agreement, and required the party purchasing the shares, whether CYC or Roy Young, to “pay the

greater of (i) fifty percent (50%) of the aggregate purchase price or (ii) all life insurance proceeds,

if any, that are received by the Purchaser as a lump sum payment” on the settlement date.

At trial, Castleman offered a letter from the Youngs’ attorney, Michael R. Gilroy, which

was admitted into evidence. In the letter, which was dated March 31, 2017—60 days after Robert

Castleman’s death, Roy Young’s counsel states, “This is official notice that Roy Young and his

various Trusts are electing to purchase Robert Castleman’s interest in the Company due to his

recent death.”

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Castleman further offered, and the trial court admitted, an email chain containing an

October 31, 2017, email from Anthony Arguijo, counsel for Roy Young, stating that “Mr. Young

exercised his option to purchase Mr. Castleman’s interest in the company” in a March 31, 2017,

letter and seeking “to close out the buy/sell agreement.”

2. Discussion

“Acceptance of an option, unless excused in rare cases of equity, must be unqualified,

unambiguous, and strictly in accordance with the terms of the agreement.” Crown Constr. Co. v.

Huddleston, 961 S.W.2d 552, 558 (Tex. App.—San Antonio 1997, no pet.).

Here, Roy Young, acting through counsel, notified Castleman on March 31, 2017, that he

was electing to purchase Robert Castleman’s shares in CYC. This notice was timely, was in

accordance with the terms of the Shareholder Agreement, was unqualified, and was unambiguous. 5 4F

As a result, Roy Young exercised his option under the Shareholder Agreement and was

contractually bound to purchase Robert Castleman’s shares of CYC from his estate. See

Huddleston, 961 S.W.2d at 558; Durrett Dev., Inc. v. Gulf Coast Concrete, LLC, No. 14-07-01062-

CV, 2009 WL 2620506, at *2, *6 (Tex. App.—Houston [14th Dist.] Aug. 27, 2009, no pet.) (mem.

op.) (holding that language stating that “Tenant hereby gives its written notice to Landlord of

Tenant’s elections to exercise its option to purchase the Leased Premises” was effective to exercise

an option); Tye v. Apperson, 689 S.W.2d 320, 322, 324 (Tex. App.—Fort Worth 1985, writ ref’d

n.r.e.) (holding that acceptance of option through attorney was effective); Farrell v. Evans, 517

S.W.2d 585, 589 (Tex. App.—Houston [1st Dist.] 1974, no writ) (same).

5
In their appellate brief, the Youngs and CYC argue that the statement in the letter is not “positive, unqualified,
unequivocal” because “the letter states ‘the Company will redeem the shares if Roy Young does not indeed purchase
[the shares] by the contractual deadline.’” This statement, however, neither qualifies the previous sentence, in which
Roy Young unambiguously and without qualification stated he was electing to purchase the shares, nor makes the
previous sentence ambiguous. Rather, this subsequent statement merely states that CYC will purchase the shares if
Roy Young fails to comply with the contract, despite the fact that Roy Young’s election to purchase the shares negates
any responsibility on behalf of CYC to purchase the shares, given that the contract only imposed an obligation on
CYC to purchase the shares “[i]f ROY YOUNG fail[ed] to exercise” his option to purchase.
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In addition, under the terms of the Shareholder Agreement, the settlement date for Roy

Young’s purchase of the shares could not be later than May 30, 2017—60 days after March 31,

2017, the date on which Roy Young gave notice of his election to purchase. The evidence showed,

however, that, at least as of the October 31, 2017, email, Roy Young had not purchased Robert

Castleman’s shares.

Accordingly, we conclude that the trial court did not err by awarding breach of contract

damages against Roy Young based on his failure to purchase Robert Castleman’s shares of CYC,

and we overrule the third point of error.

C. Did the Trial Court Properly Award Actual and Punitive Damages Directly to Castleman
Based on the Youngs’ Breach of their Fiduciary Duties to CYC?

In their fourth and fifth points of error, the Youngs and CYC argue the trial court erred by

awarding damages directly to Castleman based on the juries’ findings that the Youngs breached

their fiduciary duties to CYC, that there were no jury charge questions asking the jury to determine

whether the Youngs breached any duties owed to Castleman, and that any award of damages must

be to CYC, not to Castleman. Specifically, the Youngs and CYC argue that there is no fiduciary

duty between shareholders of a closely held corporation, the Youngs’ fiduciary duties were owed

to CYC, the jury charge only asked if the Youngs failed to comply with a duty to CYC, and

Castleman failed to obtain any jury charge questions that would have allowed for direct recovery

from the Youngs under section 21.563 of the Business Organizations Code.

Under section 21.563, a trial court, if justice requires, may treat “a derivate proceeding

brought by a shareholder of a closely held corporation . . . as a direct action brought by the

shareholder for the shareholder’s own benefit.” TEX. BUS. ORGS. CODE ANN. § 21.563(c)(1).

Further, “if justice requires . . . a recovery in a . . . derivative proceeding by a shareholder may be

paid directly to the plaintiff or to the corporation if necessary to protect the interests of creditors

or other shareholders of the corporation.” Id. § 21.563(c)(2); see Ritchie, 443 S.W.3d at 881. “The
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decision whether justice requires the shareholder to recover directly under this statute is a matter

left to the trial court’s discretion.” Guajardo v. Hitt, 562 S.W.3d 768, 781 (Tex. App.—Houston

[14th Dist.] 2018, pet. denied.).

In this case, there were only two shareholders of CYC—Roy Young and Robert Castleman.

After Robert Castleman’s death, his shares of CYC were held by Billie Castleman, as

administratrix of his estate, until such time as either Roy Young or CYC, as applicable under the

Shareholder Agreement, purchased the shares. As a result, CYC was a “closely held corporation,”

and the decision regarding whether to allow Castleman to recover directly from Roy Young was

within the trial court’s discretion. See TEX. BUS. ORGS. CODE ANN. § 21.563(c)(2); Guajardo, 562

S.W.3d at 781.

In their brief, the Youngs and CYC present neither substantive legal argument nor citations

to applicable authority to show that the trial court either lacked discretion to award, or abused its

discretion by awarding, actual and punitive damages to Castleman based on the Youngs’ breach

of their fiduciary duties to CYC. Further, to the extent the Youngs and CYC argue that “there are

threshold issues that are required to be included in additional jury charge questions that were not

asked,” they once again fail to provide substantive legal analysis or citations to applicable authority

to show either that the relevant findings under section 21.563 must be made by the jury, rather than

the trial court, or that the necessary findings are not elements of the breach of fiduciary duty claims

that were omitted from the charge and have now been “deemed found by the court in such manner

as to support the judgment” under Texas Rule of Civil Procedure 279. TEX. R. CIV. P. 279; see K-

Bar Servs., Inc. v. English, No. 03-05-00076-CV, 2006 WL 903735, at *4–5 (Tex. App.—Austin

April 7, 2006, no pet.) (mem. op.); Kim, 320 S.W.3d at 376; see Guajardo, 562 S.W.3d at 781.

We overrule issues four and five. Cf. Saden v. Smith, 415 S.W.3d 450, 465 (Tex. App.—

Houston [1st Dist.] 2013, pet. denied) (holding that “recovery could be paid to [one shareholder]

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directly to protect his interests” when that shareholder was injured by the wrongful conduct of the

only other shareholder and the other shareholder benefitted from the misconduct).

D. Did the Evidence Fail to Support the Damages Award Against Each Defendant
Individually?

In their sixth point of error, the Youngs and CYC argue that the evidence related to

damages was legally insufficient, because Castleman was “required to present evidence of

damages proximately caused by each defendant” but Castleman failed to distinguish the damages

caused by each of the Youngs.

1. Background

At trial, Billie Young testified that Roy Young would use CYC funds, primarily through

CYC’s American Express credit card, to purchase sandwiches, biscuits, and food for various

parties, including the company’s workers and workers for a different business owned by the

Youngs. She further testified that CYC never had a job in Eads, Tennessee, where the Youngs

lived and where they purchased the food she had stated was for their workers. In addition, she

testified that both she and Roy Young had purchased gas that was paid for by CYC. Finally, she

testified that Roy Young purchased food for persons he knew that were working in the area,

whether they worked for CYC or not, and charged the expense to CYC.

Similarly, Roy Young testified that food for various people was paid for by CYC. He also

testified that he purchased food, which was paid for by CYC, and that purchasing the food could

lead to people being a reference for his construction company or his iron company. He specifically

confirmed that he purchased food with CYC funds that benefitted his iron company.

Finally, Castleman’s expert, Kimberly Ford, testified that the Youngs paid for a number of

expenses with CYC’s funds, either by writing checks on CYC’s bank account or by charging the

expenses to CYC’s American Express account, which were not business expenses. Moreover,

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Ford’s report, showing that the Youngs paid for personal expenses with CYC’s funds, was

admitted into evidence.

2. Discussion

At trial, the jury determined that Roy Young breached his fiduciary duty to CYC by

engaging in self-dealing. Similarly, the jury determined that Billie Young breached her fiduciary

duty to CYC by engaging in self-dealing. As a result, the jury was asked to determine what

percentage of liability they attributed to each of the Youngs individually for their breaches of

fiduciary duty. The jury was also asked to separately determine the specific sums of money that

would compensate CYC for the breach of fiduciary by Roy Young and for the breach of fiduciary

duty by Billie Young. Thus, “the jury was asked to award divisible or separate damages, not

individual or total damages.” Dana Corp. v. Microtherm, Inc., No. 13-05-00281-CV, 2010 WL

196939, at *20 (Tex. App.—Corpus Christi-Edinburgh Jan. 21, 2010, pet. granted, judgment

vacated w.r.m.) (mem. op.).

But Castleman did not provide evidence to support these individual damages awards

against Roy or Billie Young. Instead, Castleman’s evidence only showed that CYC’s funds had

been used to pay non-business expenses, and that both Roy and Billie Young had spent CYC’s

funds in such a manner. But Castleman failed to provide evidence showing the specific amount of

CYC’s funds expended individually by Roy Young or by Billie Young. 6 In other words, while
5F

Castleman “had both the opportunity and the burden at trial to develop [her damages]—divisible

among the defendants. . . . she did not.” Id.

6
Although Roy Young only testified that he made purchases for food that was paid for by CYC and Billie Young
testified that the purchases paid for by CYC were primarily made by Roy Young, there was no evidence to show the
amounts of any purchases by either Roy Young or Billie Young individually.

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Although the jury assigned a percentage of liability to each of the Youngs to determine the

specific amount of money each would need to pay to fairly compensate CYC for their individual

breaches of fiduciary duty owed to CYC, “it is axiomatic that a jury must have an evidentiary

foundation on which to base its findings.” Texarkana Mem’l Hosp., Inc. v. Murdock, 946 S.W.2d

836, 841 (Tex. 1997); see City of Keller v. Wilson, 168 S.W.3d 802, 813 (Tex. 2005) (“In claims

or defenses supported only by meager circumstantial evidence, the evidence does not rise above a

scintilla (and thus is legally insufficient) if jurors would have to guess whether a vital fact exists.”).

Here the record contains no support or basis for the jury’s apportionment of liability y as between

the Youngs. We therefore find the evidence insufficient to support the jury’s damages award on

the breach of fiduciary duty claims. 7 6F

3. Disposition of the Breach of Fiduciary Duty Claims

Generally, when an appellate court finds the evidence legally insufficient to support a

damages verdict, the court reverses and renders a take-nothing judgment. See Rojas v. Duarte, 393

S.W.3d 837, 846 (Tex. App.—El Paso 2012, pet. denied); Ford Motor Co. v. Cooper, 125 S.W.3d

794, 804 (Tex. App—Texarkana 2004, no pet.). An appellate court may, however, reverse and

remand a case for a new trial, if the appellate court determines that the interests of justice require

a remand. See TEX. R. APP. P. 43.3(b); Rojas, 393 S.W.3d at 846; Cooper, 125 S.W.3d at 804.

“Appellate courts have broad discretion to exercise that power.” Cooper, 125 S.W.3d at 804.

“Appellate courts have reversed for a new trial where, among other circumstances, the

plaintiff failed to show damages with reasonable certainty, but the interests of justice required the

plaintiff be given an opportunity to show the proper measure of his or her damages.” Id.; see Rojas,

7
We note that, at trial, Castleman argued that establishing individual liability did not matter, because “this is a
derivative suit against a husband and wife who share everything and delegate everything to each other.” Castleman
does not urge this argument on appeal. Moreover, a person is not liable for that person’s spouse’s actions, unless the
spouse acts as the other spouse’s agent or the spouse incurs debts for necessaries. See TEX. FAMILY CODE ANN. §
3.201(a); Tedder v. Gardner Aldrich, LLP, 421 S.W.3d 651, 655 (Tex. 2013).
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393 S.W.3d at 846; see also Minn. Mining & Mfg. Co. v. Nishika Ltd., 953 S.W.2d 733, 739 (Tex.

1997) (holding that plaintiffs should be afforded an opportunity to develop their damages evidence

to segregate the damages); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 653–54 (Tex. 1996)

(reversing court of appeals’ take-nothing judgment and remanding for apportionment of liability).

Here, the jury found that both Roy Young and Billie Young breached their fiduciary duties

to CYC. The jury further found a specific amount of damages for the breaches of fiduciary duty

and imposed liability against both of the Youngs. 8 The jury further found that Roy Young acted
7F

with malice, and they awarded exemplary damages against him. Accordingly, we conclude that

the interests of justice require this case to be remanded for an apportionment of liability.

Finally, we “may not order a separate trial solely on unliquidated damages if liability is

contested.” TEX. R. APP. P. 44.1(b); see Nishika Ltd., 953 S.W.2d at 740. The damages suffered in

this case, if any, are unliquidated, and the Youngs have contested liability for the breach of

fiduciary duty claims. Accordingly, remand solely for a new trial on damages would be

inappropriate; remand of both the liability issue and for damages is mandatory in this case. See

Nishika Ltd., 953 S.W.2d at 740.

E. Should the Award of Damages Based on a Breach of Fiduciary Duty Have Been Reduced
in Accordance with Each Defendant’s Percentage of Liability, as Found by the Jury?

In the seventh point of error, the Youngs and CYC argue that the trial court erred by not

adjusting the damages awards for the breach of fiduciary duties claims based on the percentages

of responsibility found by the jury. Based on our disposition of issue number six, it is unnecessary

to address this issue.

F. Should Punitive Damages Have Been Awarded to Castleman and Against Roy Young
Based on the Jury’s Finding that He Breached his Fiduciary Duty?

8
In their brief, the Youngs and CYC argue that Castleman presented no evidence of actual damages for her breach of
fiduciary duty claims. Castleman did, however, present evidence of the breach of fiduciary duty claims and the total
damages from those claims. And “evidence of unsegregated damages among claims or parties is more than a scintilla
of evidence of segregated damages.” Minn. Mining & Mfg. Co. v. Nishika Ltd., 953 S.W.2d 733, 739 (Tex. 1997).
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In their eighth point of error, the Youngs and CYC argue that the trial court erred by

awarding exemplary damages against Roy Young, because Castleman failed to establish actual

damages caused by Roy Young.

Under section 41.004(a) of the Texas Civil Practice and Remedies Code, “exemplary

damages may be awarded only if damages other than nominal damages are awarded.” TEX. CIV.

PRAC. & REM. CODE ANN. § 41.004(a). Therefore, because we have reversed the award of actual

damages, we sustain the Youngs and CYC’s eighth point of error. See Roberts v. Whitfill, 191

S.W.3d 348, 358 (Tex. App.—Waco 2006, no pet.); Texaco, Inc. v. Phan, 137 S.W.3d 763, 773

(Tex. App.—Houston [1st Dist.] 2004, no pet.).

Accordingly, we reverse the award of exemplary damages in the judgment and remand for a

new trial regarding exemplary damages. See Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt.

Holdings, Inc., 219 S.W.3d 563, 585 (Tex. App.—Austin 2007, pet. denied); Green Tree Fin.

Corp. v. Garcia, 988 S.W.2d 776, 785 (Tex. App.—San Antonio 1999, no pet.); Equistar Chems.,

LP v. Dresser-Rand Co., No. 14-02-00874-CV, 2008 WL 850132, at *6 (Tex. App.—Houston

[14th Dist.] April 1, 2008, no pet.) (mem. op.).

G. Should the Damage Awards Based on Breach of Fiduciary Duty Been Reduced Based on
Castleman’s 49% Ownership of CYC?

In issue nine, the Youngs and CYC assert that the trial court erred by awarding Castleman

the full amount of the damages awarded by the jury for the Youngs’ breaches of fiduciary duty,

because the damages were awarded to the corporation and Robert Castleman only owned 49% of

CYC. The Youngs and CYC therefore contend that the judgment awarded Castleman more than

the jury, because the jury’s award to CYC was not reduced in accordance with Castleman’s

ownership interest in the corporation. Based on our disposition of issue number six, it is

unnecessary to address this issue.

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H. Was the Evidence of Malice Sufficient to Support a Punitive Damages Award?

In point of error ten, the Youngs and CYC contend that the evidence was insufficient to

show that the harm to CYC caused by Roy Young resulted from malice. And, without sufficient

evidence of malice, the Youngs and CYC conclude that “the award of punitive damages is

unsupportable.” Once again, based on our disposition of issue number six, it is unnecessary to

address this issue.

I. Should the Youngs’ Breach of Contract Cause of Action and Affirmative Defenses Have
Been Presented to the Jury?

In their eleventh issue, the Youngs and CYC argue that the trial court erred when it granted

a directed verdict on their cause of action for breach of contract and when it refused to submit their

requested jury charge questions regarding breach of contract, repudiation, and prior material

breach.

As an initial matter, the Youngs and CYC’s eleventh “issue is multifarious because it

embraces more than one specific ground.” Priority One Title, LLC v. Andrado, No. 14-21-00379-

CV, 2023 WL 2259092, at *4 (Tex. App.—Houston [14th Dist.] Feb. 28, 2023, no pet.) (mem.

op.). We may therefore disregard and refuse to consider the issue. See id. Nevertheless, we will

address the issue to the extent we can determine the alleged errors about which the Youngs and

CYC complain. See id.

1. Background

In its first amended petition in intervention, CYC pleaded a cause of action for breach of

contract. In that claim, CYC asserted that Castleman breached the Shareholder Agreement by

failing to sell Robert Castleman’s shares of CYC to CYC.

Subsequently, the Youngs and CYC filed a supplemental answer, in which they pleaded

two affirmative defenses. Specifically, the Youngs and CYC asserted that Castleman’s claims were

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barred due to her alleged prior material breach of the Shareholder Agreement and due to her alleged

repudiation of the agreement.

At trial, Michael Gilroy, counsel for CYC and the Youngs, testified that he spoke to

Castleman by phone on March 3, 2017. During the phone call, Castleman sought copies of CYC’s

records. When Gilroy explained that he could not provide her with copies of the records under the

Shareholder Agreement, Castleman stated that the agreement did not matter, because she was a

stockholder, and that she did not sign the agreement. Gilroy then explained that the estate and the

heirs were bound by the agreement, even though she did not sign it. In the phone call, Castleman

sought production of records, and Gilroy sought to determine the identity of the representative of

the estate. Gilroy did not recall anything else important from the conversation.

After this conversation, on March 15, 2017, Castleman sent an email to the Youngs and

CYC’s counsel, seeking production of documents. The stated purpose of the email was to

“ascertain[] the financial condition of Castleman & Young Construction, Inc. and other

information that bears on the value of the Castlemans’ Ownership interest.

On March 31, 2017, Gilroy wrote a letter to Castleman. In the letter, Gilroy stated that Roy

Young was electing to purchase Robert Castleman’s shares in CYC and that the “purchase price

will be determined by the book value which is still in flux and will be revealed to an actual Executor

of Bob’s Estate.” Similarly, Gilroy testified that, when he wrote the letter, “there were questions

in regards to canceled contracts and the valuation.”

In addition, according to Gilroy, counsel for Castleman, Taryn Biasiolli, in a phone

conversation on around June 28, 2017, “refused to honor the buy/sell.” And, on November 5, 2017,

Linda Leeser, another counsel for Castleman, sent an email to counsel for the Youngs and CYC

declining counsel’s “offer to draw up a purchase-sale agreement,” because there were “a few issues

that must be addressed before a purchase can even take place.”

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At the conclusion of the Youngs and CYC’s case-in-chief, Castleman moved for a directed

verdict on the breach of contract claim, which the trial court granted. Further, at the conclusion of

all of the evidence, the trial court stated that it found that, if Castleman had indicated, in the March

3, 2017, phone call, that she refused to sell the shares under the Shareholder Agreement, then

Gilroy would not have sent the March 31, 2017, letter exercising Roy Young’s option to purchase

the shares and that the letter did not indicate that Castleman had made any statement regarding

refusing to sell. The trial court then found that there was no evidence of the breach of contract

claim and re-affirmed its decision to grant a directed verdict on CYC and the Youngs’ breach of

contract claim.

Finally, during the charge conference, the Youngs and CYC objected to the omission of

questions regarding their breach of contract claim and their affirmative defenses of affirmative

breach and repudiation. The trial court overruled the objections.

2. Did the Trial Court Err By Granting a Directed Verdict on CYC’s Breach of Contract
Claim?

In their appellate brief, the Youngs and CYC argue that the trial court erred by granting a

directed verdict on their breach of contract claim against Castleman. In support of this argument,

the Youngs and CYC assert two ways Castleman purportedly breached the Shareholder

Agreement: (1) by allegedly canceling contracts between CYC and its customers, and (2) by

requesting financial documents from CYC in manner that allegedly contradicts the Shareholder

Agreement’s $200,000 purchase price for Robert Castleman’s shares of CYC. Neither of these

purported actions, however, constitute a breach of any contract between Castleman and either the

Youngs or CYC.

The record in this case contains evidence of only a single contract between the Youngs,

CYC, and Robert Castleman: the Shareholder Agreement. Under that agreement, (1) either Roy

Young or CYC was contractually obligated to purchase Robert Castleman’s shares of CYC upon
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Robert Castleman’s death; (2) Robert Castleman’s estate, by and through its representative, was

obligated to sell the shares for $200,000 to either Roy Young or CYC, depending on whether Roy

Young timely invoked his purchase option; and (3) CYC was obligated to pay any unpaid salary

earned by Robert Castleman and distribute Robert Castleman’s share of any undistributed profits

to the representative of his estate. Moreover, on March 31, 2017—within the option period

specified by the Shareholder Agreement--Roy Young notified Castleman that he was exercising

his option to purchase Robert Castleman’s shares of CYC. Upon this election, the contract required

Roy Young to purchase Robert Castleman’s shares, and it required the representative of Robert

Castleman’s estate to sell the shares to Roy Young.

After reviewing the record, we conclude that only CYC pleaded a cause of action for breach

of contract and that CYC failed to provide any evidence in support of its claim.

First, CYC, in its plea in intervention, filed a claim for breach of contract against

Castleman, arguing that it was entitled to specific performance and seeking to require Castleman

to sell the shares to CYC. Therefore, because “[a] trial court judgment must conform to the

pleadings of the parties,” CYC was required to show that Castleman breached a contractual

obligation owed to CYC. Carter, 817 S.W.2d at 688. The evidence, however, shows that Roy

Young exercised his option under the Shareholder Agreement to purchase Robert Castleman’s

shares of CYC. As a result, the evidence showed that Castleman owed a contractual duty to Roy

Young, to sell Robert Castleman’s shares to Roy Young. Castleman did not, however, owe any

duties to CYC; Roy Young was obligated to purchase the shares from Castleman, and CYC was

obligated to pay any unpaid salary and distribute any undistributed profits to Castleman, but

Castleman’s sole obligation under the contract was to sell the shares to Roy Young. As a result,

CYC failed to provide any evidence showing that Castleman breached a contract she had with

CYC.

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Second, to the extent CYC and the Youngs argue that Castleman canceled contracts

between CYC and its customers, they fail to show how any such action amounted to a breach of a

contract that Castleman had with either CYC or the Youngs. While such actions, if shown by CYC

and the Youngs, might constitute interference with CYC’s contracts—a claim separately pleaded

by CYC and rejected by the jury—CYC and the Youngs fail to show how any alleged action by

Castleman to cancel CYC’s construction contracts had any bearing on the Shareholder Agreement.

Indeed, any actions Castleman may have taken with respect to CYC’s pending construction

contracts could not affect the Shareholder Agreement, because the agreement set a fixed purchase

price for Robert Castleman’s shares of CYC, at $200,000, and it obligated CYC to pay the

representative of his estate any unpaid salary and to distribute any undistributed profits owed to

him at the time of his death. Thus, any actions taken in relation to CYC’s contracts after Robert

Castleman’s death could not have affected the terms of the contract, because the amount CYC was

required to pay under the contract was fixed as of the date of his death. As a result, Castleman

could not have breached the Shareholder Agreement by canceling CYC’s contracts after Robert

Castleman’s death, even if the evidence showed she did so, because any actions taken with regard

to CYC’s construction contracts after Robert Castleman’s death were irrelevant to the terms of the

Shareholder Agreement.

Similarly, CYC and the Youngs fail to show how any requests for financial information

from CYC made by Castleman constitute a breach of the Shareholder Agreement. Although the

evidence shows that Castleman requested financial information from CYC and the Youngs, CYC

and the Youngs do not show how this request constituted a refusal to sell the shares as required by

the Shareholder Agreement. In fact, the record contains no evidence showing that Castleman

rejected payment of $200,000 for the shares or otherwise refused to sell the shares. At most,

Castleman’s request for valuation information might be evidence of an anticipatory repudiation of

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the contract—an issue we address below. But CYC and the Youngs fail to show any obligation

under the Shareholder Agreement that would be impacted by Castleman’s request for financial

information. See Snyder v. Eanes Indep. Sch. Dist., 860 S.W.2d 692, 695 (Tex. App.—Austin

1993, writ denied) (“When a cause of action is based on breach of contract, the plaintiff must show

that a contract existed between the parties, that the contract created duties, that the defendant

breached a duty under the contract, and that the plaintiff sustained damages as a result.” (emphasis

added)). Thus, they fail to show that the request for information constituted a breach of the

contract.

Finally, to the extent Gilroy testified that Castleman’s attorney “refused to honor the

buy/sell” agreement, Gilroy testified that the conversation with Castleman’s counsel occurred

around June 28, 2017, which was after the June 1, 2017, deadline by which Roy Young was

required to purchase, and Castleman was required to sell, the shares, as required by the Shareholder

Agreement.

Accordingly, we conclude that the trial court did not err by granting the directed verdict on

CYC’s breach of contract claim.

3. Did the Trial Court Err By Refusing to Include the Youngs and CYC’s Proffered Jury
Charge Questions Regarding CYC’s Breach of Contract Claim and the Youngs and CYC’s
Affirmative Defenses?

The Youngs and CYC also argue that the trial court erred by omitting their requested jury

instructions regarding CYC’s breach of contract claim and their affirmative defenses—repudiation

and prior material breach. [ANT 38–42]

We review complaints regarding a trial court’s charge to the jury under an abuse of

discretion standard. See Sanchez v. Mica Corp., 107 S.W.3d 13, 31 (Tex. App.—San Antonio

2002, judgment vacated in part w.r.m.); De Leon v. Furr’s Supermarkets, Inc., 31 S.W.3d 297, 300

(Tex. App.—El Paso 2000, no pet.). “A trial judge must submit a requested jury instruction if it is

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supported by some evidence, but may refuse to do so if it is not supported by any evidence.”

Sanchez, 107 S.W.3d at 31; see TEX. R. CIV. P. 278; Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.

1992). We do not reverse a trial court’s judgment based on charge error unless the error, when

considered in light of the totality of the circumstances, amounted to a denial of the rights of the

complaining party such as was reasonably calculated and probably did cause rendition of an

improper judgment. See Sanchez, 107 S.W.3d at 31; De Leon, 31 S.W.3d at 300. Finally, a party

waives a complaint regarding the trial court’s failure to include a jury instruction if the party fails

to request an instruction in substantially correct wording. See TEX. R. CIV. P. 278; Abraxas

Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 763 (Tex. App.—El Paso 2000, no pet.); Walls v.

Klein, No. 04-13-00565-CV, 2014 WL 3339791, at *2 (Tex. App.—San Antonio July 9, 2014, pet.

denied) (mem. op.); Discover Prop. & Cas. Ins. Co. v. Tate, 298 S.W.3d 249, 257 (Tex. App.—

San Antonio 2009, pet. denied); Heatley v. Red Oak 86, L.P., 629 S.W.3d 377, 390–91 (Tex.

App.—Dallas 2020, no pet.); McIntyre v. Comm’n for Law. Discipline, 247 S.W.3d 434, 445 (Tex.

App.—Dallas 2008, pet. denied).

Here, the Youngs and CYC failed to provide evidence in support of their requested jury

instructions.

First, as discussed previously, supra section I.3, the trial court did not err by granting a

directed verdict on CYC’s breach of contract claim. For the same reasons, the trial court did not

err by omitting the Youngs and CYC’s requested jury instruction regarding CYC’s breach of

contract claim.

Second, as discussed supra, section I.3, once Roy Young timely exercised his option to

purchase the shares, Castleman’s duty, under the Shareholder Agreement, was to sell Robert

Castleman’s shares of CYC to Roy Young. Thus, Castleman owed no such duty to CYC. But CYC

and the Youngs only requested the following jury instructions, as relevant here:

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These questions asked the jury only whether Castleman breached a contract with CYC, not

with Roy Young. As a result, CYC and the Youngs failed to submit a proposed jury instruction

regarding whether Castleman repudiated or engaged in a prior material breach of a contract with

Roy Young. Thus, because the evidence showed that Roy Young exercised his option to purchase

Robert Castleman’s shares, CYC and the Youngs waived any jury charge error regarding their

affirmative defenses to the breach of contract claim involving Roy Young’s duty to purchase

Robert Castleman’s shares of CYC for $200,000 and Castleman’s duties to sell those shares to

Roy Young. See, e.g., Hornburg, 20 S.W.3d at 763; Walls, 2014 WL 3339791, at *2; Tate, 298

S.W.3d at 257.

Further, CYC and the Youngs failed to submit proposed jury instructions that properly set

out the law related to prior material breach of a contract. In addition, as discussed supra, section

I.3, they fail to provide any evidence showing that Castleman actually breached the Shareholder

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Agreement. Thus, CYC and the Youngs waived any charge error related to prior material breach.

See Hornburg, 20 S.W.3d at 763; McIntyre, 247 S.W.3d at 445.

Finally, “[u]nder the doctrine of repudiation or anticipatory breach, ‘an injured party is

discharged from its remaining duties to perform under a contract where the other party repudiates

its contractual duty before the time for performance.’” Sci. Mach. & Welding, Inc. v. FlashParking,

Inc., 641 S.W.3d 454, 463 (Tex. App.—Austin 2021, pet. denied) (quoting Cook Composites, Inc.

v. Westlake Styrene Corp., 15 S.W.3d 124, 139 (Tex. App.—Houston [14th Dist.] 2000, no pet.));

see Colvin v. Rickert, No. 04-05-00165-CV, 2006 WL 285993, at *8 (Tex. App.—San Antonio

Feb. 8, 2006, pet. denied) (mem. op., citations omitted).

Here, to the extent the requested instruction brought the trial court’s attention to the

Youngs’ and CYC’s contention that Castleman repudiated a contract with CYC, the only evidence

in the record that would support a jury finding that Castleman repudiated the contract is Gilroy’s

testimony that in “the first conversation with Taryn Biasiolli, she refused to honor the buy/sell.”

But Gilroy testified that this conversation took place around June 28, 2017, which was after the

June 1, 2017, deadline by which Roy Young was required to purchase, and Castleman was required

to sell, Robert Castleman’s shares of CYC. As a result, this testimony does not support the Youngs

and CYC’s affirmative defense of repudiation, because, even if the jury credited this testimony,

the alleged repudiation occurred after the contract had been breached. Thus, there is no evidence

that Castleman repudiated the contract before the time for performance. See FlashParking, Inc.,

641 S.W.3d at 463.

Based on the foregoing, we conclude that the trial court did not abuse its discretion by

declining to include the proposed jury instructions proffered by CYC and the Youngs. We overrule

the eleventh issue.

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J. Was Castleman Entitled to Recover Attorneys’ Fees?

In their final point of error, the Youngs and CYC argue that “when the Court reverses the

judgment against Mr. Young on the breach of contract claim, then the attorneys’ fees award must

also be reversed.”

In light of our disposition of the Youngs and CYC’s first three issues, in which we affirmed

the trial court’s judgment against Roy Young on the breach of contract claims, we overrule the

Youngs and CYC’s twelfth point of error.

K. Did the Trial Court Properly Reduce the Award of Attorneys’ Fees?

In her cross-appellant’s brief, Castleman raises a single issue on cross-appeal, in which she

argues that “the trial court erred by reducing the attorney’s fees award to $19,199.”

1. Background

Castleman included a request for an award of attorneys’ fees in her original petition.

Similarly, CYC sought an award of attorneys’ fees in its first amended petition in intervention.

At trial, Jeffrey Sandberg, counsel for CYC and the Youngs, testified as to his credentials,

that his hourly rate for this case was $400, and as to his total fee for this case.

Castleman also testified before the jury that Rashin Mazaheri, counsel for Castleman, was

charging her $400 per hour, that Castleman had seen Mazaheri in court, that she had spoken with

Mazaheri before or after court, and that she was copied on written work Mazaheri created during

trial.

Similarly, Linda Leeser, a previous counsel for Castleman, testified that she charged

Castleman an hourly rate of $245. She further testified that she had been licensed since 2015 and

that her rate was reasonable and necessary and was the same rate that other attorneys in the area

with similar experience would charge. She also testified as to her billing records, which were

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admitted into evidence as an exhibit. When taken on voir dire, Leeser testified that the reasonable

and necessary attorney’s fees for her representation were $19,199.

At the conclusion of the trial, the jury found that $100,000 was “a reasonable fee for the

necessary legal services of Billie F. Castleman, Individually and Derivatively on behalf of

Castleman & Young Construction, Inc.’s attorney for the claim of breach of contract.”

After the trial, the Youngs and CYC filed a motion for entry of judgment non obstante

veredicto. In the motion, the Youngs and CYC argued that the evidence was legally insufficient to

support an attorney’s fee award of $100,000. Specifically, the Youngs and CYC contended that

“[b]ecause the sole evidence regarding an award of attorneys’ fees was Ms. Leeser, there is no

evidence that would support an award in excess of Ms. Leeser’s testimony,” which “was that [the

reasonable and necessary attorneys’ fees were] $20,000 or less.”

On July 6, 2022, the trial court held a hearing on Castleman’s motion to enter judgment

and on the Youngs and CYC’s motion for judgment non obstante veredicto. At the hearing, the

Youngs and CYC argued that the evidence was insufficient to support the award of attorneys’ fees.

Upon consideration, the trial court found that the only evidence related to attorneys’ fees was

provided by counsel Leeser, that Ms. Leeser “did not have $100,000 worth of invoices,” that “there

was no evidence as to the totality of $100,000,” and that there “was evidence as to attorney’s fees.”

The trial court therefore stated, “whatever fees were in evidence – we have to go back and look at

it – that’s the fees that should be awarded.” Finally, the court ruled as follows:

What the Court is going to do is we are going to go back and review the
evidence to see how much was actually testified to and how much was submitted
as far as evidence that the attorneys were able – sorry, that the jury was able to go
back and surmise.
But there is just – at this point there is no evidence to support the $100,000,
but there is evidence to support attorney’s fees. So we are going to figure out what
that exact amount is, okay?

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Subsequently, in the court’s judgment, the trial court awarded Castleman $19,199 “for attorney’s

fees based on the evidence submitted to the jury.”

2. Applicable Law

Under section 38.001 of the Texas Civil Practice and Remedies Code, a person may recover

attorney’s fees in conjunction with a claim for services rendered, labor performed, or breach of

contract. TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(b)(1), (2), (8).

“An award of attorney’s fees must be supported by evidence that the fees are reasonable

and necessary.” Sloane v. Goldberg B’Nai B’Rith Towers, 577 S.W.3d 608, 620 (Tex. App.—

Houston [14th Dist.] 2019, no pet.). When determining the reasonableness and necessity of

attorney’s fees in a fee-shifting situation, the lodestar method applies. Rohrmoos Venture v. UTSW

DVA Healthcare, LLP, 578 S.W.3d 469, 501 (Tex. 2019). Under the lodestar method, “a claimant

seeking an award of attorney’s fees must prove the attorney’s reasonable hours worked and

reasonable rate by presenting sufficient evidence to support the fee award sought.” Id. at 501–02.

“Sufficient evidence includes, at a minimum, evidence of (1) particular services performed,

(2) who performed those services, (3) approximately when the services were performed, (4) the

reasonable amount of time required to perform the services, and (5) the reasonable hourly rate for

each person performing such services.” Id. at 502; El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 763,

764 (Tex. 2012). Further, when a party seeks recovery of attorneys’ fees for work performed by

more than one attorney, the party must provide sufficient evidence to show the services performed

by, and the reasonably hour rate for, each attorney. See Olivas, 370 S.W.3d at 763; City of Laredo

v. Montano, 414 S.W.3d 731, 736–37 (Tex. 2013); Calleja-Ahedo v. Compass Bank, No. 01-15-

00210-CV, 2020 WL 3820420, at *12 (Tex. App.—Houston [1st Dist.] July 7, 2020, no pet.)

(mem. op.).

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“The final test for legal sufficiency must always be whether the evidence at trial would

enable reasonable and fair-minded people to reach the verdict under review.” Wilson, 168 S.W.3d

at 827. Thus, “[w]hen reviewing a trial court’s award of attorney’s fees, we must ensure the record

contains sufficient evidence to support such an award.” Nath v. Tex. Children’s Hosp., No. 14-19-

00967-CV, No. 14-20-00231-CV, 2021 WL 451041, at *13 (Tex. App.—Houston [14th Dist.]

Feb. 9, 2021, pet. denied) (mem. op.) (quoting Yowell v. Granite Operating Co., 620 S.W.3d 335,

354 (Tex. 2020)). Moreover, the evidence must support the entire amount of the attorney’s fee

award. See Montano, 414 S.W.3d at 737 (affirming award of attorney’s fees for one attorney,

reversing award of attorney’s fees for second attorney, and remanding for further proceedings);

Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Rsch. Corp., 299 S.W.3d 106, 123–24

(Tex. 2009) (“Akin Gump”) (holding that “although the evidence is legally sufficient to support a

finding of some amount, it is legally insufficient to support the entire amount the jury found” and

that the attorney’s fees award should either be remitted or a new trial should be granted); Nath,

2021 WL 451041, at *14 (holding that “although the evidence is legally sufficient to support a

finding of some amount of future appellate attorney’s fees, it is legally insufficient to support the

entire amount awarded in the trial court’s final judgment”); Sloane, 577 S.W.3d at 621 (holding

that although the evidence supported $11,014.44 in attorney’s fees through September of 2016,

the evidence was not “legally sufficient to support the amount of attorney’s fees through trial”);

Dinkins v. Calhoun, No. 02-17-00081-CV, 2018 WL 2248572, at *9 (Tex. App.—Fort Worth May

17, 2018, no pet.) (mem. op.) (“While counsel’s testimony is some evidence to support an

attorney’s-fees award, it is legally insufficient under the lodestar method to support the amount

awarded.”).

Finally, we ordinarily “render judgment when we sustain a no evidence issue. However,

when there is some evidence of damages, but not enough to support the full amount, it is

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inappropriate to render judgment.” Akin Gump, 299 S.W.3d at 124 (internal citations omitted).

Instead, if the evidence supports some, but not all, of a damages award, the appropriate dispositions

are to order a remittitur conditioned on a new trial or to grant a new trial. See id.; cf. Broyhill

Furniture Indus., Inc. v. Murphy, No. 05-11-01545-CCV, 2013 WL 4478172, at *11 (Tex. App.—

Dallas Aug. 20, 2013, no pet.) (mem. op.) (holding that a trial court has no power to order a

remittitur without conditioning the remittitur on a new trial).

3. Discussion

In her sole issue on cross-appeal, Castleman contends that the trial court erred by reducing

the jury’s award of $100,000 in attorney’s fees to an award of $19,199. Castleman argues that

because there was some evidence to support an award of attorney’s fees, we should hold that the

trial court erred by sustaining the Youngs and CYC’s legal sufficiency challenge to the attorney’s

fees award, should “modify the judgment to reflect the jury’s finding, and affirm the judgment as

modified.”

The evidence presented in the trial court was legally sufficient to sustain an award of

$19,199 in attorney’s fees for the services performed by counsel Leeser. Other than the evidence

of Leeser’s services and the jury’s ability to witness Mazaheri 9 representing Castleman during
8F

trial, however, the evidence presented to the jury did not establish any particular services

performed by any counsel for Castleman; who performed other services for her; when the other

services were performed; the reasonable amount of time for any other services; or the reasonable

hourly rate for any other counsel. See Rohrmoos Venture, 578 S.W.3d at 502; Olivas, 370 S.W.3d

at 763, 764. Further, even with respect to counsel Mazaheri, the only evidence with respect to her

9
Mazaheri testified, in a bill of review and outside the jury’s presence, as to her qualifications, that she was charging
an hourly rate of $400 for this case, that her time for trial in the case included her hours in the courtroom during trial
and the work she performed “outside of court when issues have come up that the Court need[ed] a brief or legal
research on,” and that her fees, as of the fifth day of trial, were “$16,000 and some change.” No party explains how
this excluded testimony should factor into our analysis.
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hourly rate was Castleman’s testimony. But Castleman is not an attorney. Thus, there is no

evidence in the record to support any award of attorney’s fees based on Mazaheri’s representation

of Castleman. See Cantu v. Moore, 90 S.W.3d 821, 826 (Tex. App.—San Antonio 2002, pet.

denied) (holding that expert testimony is required to support an attorneys’ fees award and that

there was no evidence to support an award of attorneys’ fees when the only testimony was from a

non-attorney witness).

We therefore conclude that the evidence, while sufficient to support a finding of some amount

of attorneys’ fees, was legally insufficient to support the entire $100,000 amount awarded by the

jury. See Montano, 414 S.W.3d at 737; Akin Gump, 299 S.W.3d at 123–24; Nath, 2021 WL

451041, at *14; Sloane, 577 S.W.3d at 621; Dinkins, 2018 WL 2248572, at *9.

4. Disposition of Castleman’s Cross-Appeal

At the July 6, 2022, hearing, the trial court stated that it was going to award the amount of

attorney’s fees supported by counsel Leeser’s testimony and evidence. Consequently, when the

trial court issued its judgment, the trial court reduced the jury’s award of attorneys’ fees and only

awarded fees of $19,199.

A trial court may not, however, simply reduce the award of attorney’s fees. See Akin Gump,

299 S.W.3d at 124; Snoke v. Republic Underwriters Ins. Co., 770 S.W.2d 777, 777 (Tex. 1989)

(“The trial court had no power to order a remittitur in the amount of attorneys’ fees found by the

jury without conditioning that remittitur on a new trial.”); Murphy, 2013 WL 4478172, at *11.

Rather, the trial court could only order a remittitur conditioned on a new trial or grant a new trial.

See TEX. R. CIV. P. 320 (authorizing trial court to grant a new trial and set aside a judgment for

good cause on the court’s own motion); Akin Gump, 299 S.W.3d at 124; Murphy, 2013 WL

4478172, at *11.

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Accordingly, because the evidence was insufficient to support the jury’s award of $100,000

in attorney’s fees, we affirm the trial court’s order setting aside the jury’s award of attorneys’ fees

and overrule Castleman’s sole point of error on cross-appeal. See TEX. R. CIV. P. 301; Westheimer

v. Ziemer, 702 S.W.3d 621, 633 (Tex. App.—Houston [1st Dist.] 2024, no pet.). Further, because

the trial court lacked authority to order a remittitur without conditioning it on a new trial, we

reverse the trial court’s award of attorneys’ fees and remand to the trial court for further

proceedings.

CONCLUSION

Based on the foregoing, we reverse the trial court’s judgment with regard to the breach of

fiduciary damages award against each of the Youngs—including actual and exemplary damages—

and remand the breach of fiduciary duty claims to the trial court for a new trial on both the issue

of liability and the amount of damages, if any. We also reverse the trial court’s award of attorneys’

fees to Castleman on her breach of contract claims and remand for the trial court to either order

remittitur conditioned on a new trial or for a redetermination of reasonable and necessary

attorneys’ fees. We affirm the trial court’s judgment in all other respects.

H. Todd McCray, Justice

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