* District Judge of the Western District of Louisiana,

sitting by designation.

1 United States Court of Appeal,

Fifth Circuit.

No. 93-8609.

Terry THRIFT, Jr., Plaintiff-Counter Defendant-Appellant CrossAppellee,

v.

Sandra HUBBARD, as Independent Administratrix of the Estate of

Victor Mark Hubbard, Deceased, et al., Defendants-Counter

Plaintiffs-Appellees Cross-Appellants,

v.

EMIS SOFTWARE, INC., Counter Defendant-Appellant, Cross-Appellee.

Feb. 15, 1995.

App eal from the United States District Court for the Western

District of Texas.

Before SMITH and EMILIO M. GARZA, Circuit Judges, and STAGG,

District Judge. *

EMILIO M. GARZA, Circuit Judge:

This appeal arises out of a suit over soured business dealings

among the various parties involved. Terry Thrift, Jr., and EMIS

Software appeal the district court's judgme nt on issues of alter

ego and the sufficiency of the pleadings. The Estate of Victor

Hubbard and Sandra Hubbard ("the Hubbards") and Peerless

Technologies Corporation ("Peerless") cross-appeal the district

court's judgment, alleging errors on issues of prejudgment

interest, usury, and co ntract ambiguity. We affirm in part,

reverse in part, and remand.

I1 Victor Hubbard was the sole director and president of

Peerless. Sandra Hubbard was also an officer.

2 The Hubbards formed Peerless as a spinoff of the software

division of a company called PECO. 1 Under the agreement between

Peerless and PECO, Peerless received ownership rights to the

division's software and other fixed assets, but PEC O retained a

reversionary interest in the software and fixed assets. Peerless

also agreed to pay royalties to PECO on sales of the software. One

of the software packages that PECO transferred to Peerless was

called EMIS, then version 1.0. After its formation, Peerless

continued to develop EMIS, eventually developing versions 1.1 and

1.2.

Thrift became involved with Peerless when he purchased stock

in the company. He later agreed to fund a revolving-credit loan to

Peerless, and he and Peerless entered into a Revolving Credit Note

and Security Agreement to that effect. Thrift received certain

rights to various Peerless assets under the Agreement, and the

Hubbards pledged one-half of their Peerless stock as a dditional

security. Peerless defaulted on the note, and Thrift sent the

Hubbards a notice of default and demanded payment. The pledged

stock was transferred to Thrift, after which the parties negotiated

a second Revolving Credit Note.

Thrift also agreed to fund Peerless' buyout of PECO's

reversionary interest in Peerless. The Assignment and Option

Agreement executed for that purpose assigne d rights in various

fixed assets to Thrift, with Peerless to lease those assets from3

Thrift in exchange for royalty pa yments. Thrift gave Victor

Hubbard a check for $100,000 to fund the buyout, and Hubbard

deposited the funds in a Peerless account. Before the buyout was

executed, the IRS seized $87,122.85 from the Peerless account for

unpaid employment taxes. Peerless refunded the difference

($12,877.15) to Thrift and executed a note to Thrift for the seized

funds. Thrift then agreed to finance the buyout once more, but he

made payment directly to PECO and paid only $75,000.

Thrift also made a short-term loan of $17 ,981 to Peerless.

Under the terms of the loan, acco unts receivable should have

provided the basis for repayment, but no repayment ever occurred.

The Hubbards shortly thereafter formed a new company, GP

Services, to act as a reseller of software for Peerless. They also

moved some of Peerless' assets to their new GP Services offices.

Thrift eventually visited the Peerless offices and discovered the

Hubbards' actions. Bill Schaeffer, Peerless' Chief Operating

Officer, agreed to change the locks on the Peerless offices to

prevent further removal of assets.

Thrift then sent the Hubbards a notice of default on the

revolving credit notes and demanded payment. He also demanded

payment of past-due royalties and the $17,981 short-term loan.

Peerless assigned accounts receivable to Thrift due to the unpaid

debts, and Thrift returned all his Peerless stock to Peerless.

Thrift later formed his own company, EMIS Software, Inc., and

EMIS Software and GP Services signed a Major Account Reseller

Agreement ("MAR") under which EMIS Software licensed GP Services to2 Thrift sued the Hubbards and Peerless both individually and

under an alter-ego theory.

4 resell EMIS program pac kages. Thrift later cancelled the MAR

pursuant to its terms. After various contacts between EMIS

Software representatives, including Thrift, and various customers

of GP Services, some of the customers withdrew from dealings with

GP Services.

Thrift ultimately sued the Hubbards and Peerless, 2 alleging

breach of contrac t, fraud, and violations of the Texas Deceptive

Trade Practices-Consumer Protection Act ("DTPA"), in connection

with the Hubbards' and Peerless' nonpayment of funds due and owing

under the two Revolving Credit No tes, the funds advanced and

royalties due under the Assignmen t and Option Agreement, and the

funds lent under the $17,981 short-term arrangement. Thrift also

sought declaratory relief regarding rights in all versions of EMIS.

The Hubbards and Peerless responded with counterclaims against

Thrift and EMIS Software, Inc., alleging copyrigh t infringement,

misappropriation of trade secrets, usury, conversion, and breach of

fiduciary duty. Peerless also sought injunctive relief concerning

the use of EMIS versions 1.1 and 1.2. Lastly, the Hubbards alleged

that Thrift and EMIS Software, Inc. had interfered with contractual

relations, defamed the Hubbards, and intentionally inflicted

emotional distress on them.

By agreement, the parties tried the case before a magistrate

judge. After denying the Hubbards' and Peerless' motion for

judgment as a matter of law, the magistrate judge submitted the5

case to a jury that decided as follows:

1. Thrift received ownership of all versions of EMIS under the

Assignment and Option Agreement.

2. The Hubbards and Peerless committed fraud against Thrift.

3. Peerless was the alter ego of the Hubbards.

4. Thrift interfered with both existing and prospective contractual

relations of the Hubbards, and EMIS Software interfered with

the Hubbards' prospective contractual relations.

5. Thrift intentionally inflicted emotional distress on the

Hubbards.

6. The stock transfer to Thrift after Peerless' default on the

first Revolving Credit Note constitut ed a foreclosure and

satisfaction of the debt under that note.

The jury awarded varying amounts of damages on the parties'

successful claims, and the magis trate judge awarded prejudgment

interest on certain claims. The magistrate judge overruled each

party's postjudgment motions. Thrift, EMIS Software, the Hubbards,

and Peerless all appeal the judgment on various grounds.

II

A

Thrift argues first that the Hubbards should be held

individually li able for the unremitted funds from the $100,000

transaction because the jury found that Peerless was the alter ego

of the Hubbards. The trial court applied the alter ego doctrine to

only the $17,981 loan.

The liability of a shareholder for contractual debts of a

corporation is limited by statute.

A holder of share s ... shall be under no obligation to the

corporation or to its obligees with respect to

... (2) any

contractual obligation of the corporat ion on the basis that

the holder, owner, or subscri ber is or was the alter ego of3 See also Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 228

(Tex.1990) ("An alter ego relationship may be shown from the

total dealings of the corporation and the individual.");

Mancorp, Inc. v. Culpepper, 836 S.W.2d 844, 846 (Tex.App.—Houston

[1st Dist.] 1992, no writ) ("The "injustice' to be avoided in

alter ego cases is that of leaving the plaintiff with an

uncollectible judgment against the corporation, while allowing

its alter ego to go free.").

6 the corporation,

... unless the obligee demonstrates that the

holder, owner or subscriber caused the corporation to be used

for the purpose of perpetrating and did perpetrate an actual

fraud on the obligee primarily for the direct personal benefit

of the holder, owner, or subscriber....

Tex.Bus.Corp. Act Ann. art. 2.21(A) ( West Supp.1995). The alter

ego doctr ine provides one way by which an obligee can pierce the

corporate veil to reach a shareholder's assets. W estern Horizontal

Drilling, Inc. v. Jonnet Energy Corp., 11 F.3d 65, 68 (5th

Cir.1994); F idelity & Deposit Co. v. Commercial Cas. Consultants,

Inc., 976 F.2d 272, 274 (5th Cir.1992) (commenting that alter ego

is one form of corporate disregard under Texa s law); s ee also

Coastal Shutters & Insulation, Inc. v. Derr, 809 S.W.2d 916, 921

(Tex.App.—Houston [14th Dist.] 1991, no writ) ("Alter ego applies

when there is such unity or a blurr ing of identity between two

corporations or a corporation and an individual that the

separateness of the single corporation has ceased and holding only

the corporation liable would cause injustice."). 3 Proving that a

corporation is the alter ego of a shareholder alone is not enough;

in order to pierce the corporate veil, the obligee must also

d emonstrate fraud by and direct personal benefit to the obligor.

See Atlantic Richfield Co. v. Long Trusts, 860 S.W.2d 439, 446

(Tex.App. —Texarkana 1993, writ denied) ("[W]hen actual fraud for4 Because the dispositive issue is whether Thrift satisfied

the elements of the statute, the parties' arguments regarding the

present status of Castleberry v. Branscum, 721 S.W.2d 270

(Tex.1986), do not bear on the resolution of this question.

5 Special Interrogatory 21 stated as follows:

Did Peerless or Victor Hubbard or Sandra Hubbard

commit fraud in the transactions involving the $100,000

advanced by Thrift in December, 1986 or the $17,981

advanced in February, 1987?

The burden of proof for this question is upon the

plaintiff.

ANSWER: "YES" or "NO" for each of the following:

Peerless:

Victor Hubbard:

Sandra Hubbard:

INSTRUCTIONS

"Fraud" consists of the following elements:

7 the benefit of the perp etrating shareholder can be shown, the

various doctrines of disregarding the corporate entity, including

alter ego and a sham to perpetrate a fraud, are still very much

alive."); F arr v. Sun World Sav. Ass'n, 810 S.W.2d 294, 296

(Tex.App.—El Paso 1991, no writ) ("Carefully preserved, however, is

the right of a person to go behind the corporate entity in order to

establish individual shareholder liability by a showing of actual

or common law fraud.").

The Hubbards contend that Thrift failed to satisfy the fraud

element of article 2.21 for the $100,0 00 transaction. 4 We agree.

Special Interrogatory # 21 asked whether the Hubbards had committed

fraud in either the $100, 000 or the $17,981 transaction, 5 and(1) a material representation was made;

(2) the representation was false;

(3) when the speaker made the representation he knew it

was false or made it recklessly without any

knowledge of its truth and as a positive

assertion;

(4) the speaker made the representation with intent

that it should be acted upon by Terry Thrift;

(5) Terry Thrift acted in reliance upon the

representation;

(6) Terry Thrift thereby suffered injury.

6 Special Interrogatory # 22 stated as follows:

What amount of money, if any, would fairly and

reasonably compensate Terry Thrift for the damage, if

any, suffered by him as a result of the fraud you have

found in the preceding special question?

The burden of proof for this question is upon the

plaintiff.

ANSWER IN DOLLARS AND CENTS ONLY FOR THE FOLLOWING

FOR WHOM YOU ANSWERED "YES" IN Question No. 21.

Peerless:

Victor Hubbard:

Sandra Hubbard:

7 The district court instructed the jury that damage is an

element of fraud.

8 Special Interrogatory # 22 asked what compe nsation would be

a ppropriate. 6 The jury answered "Yes" in all three spaces in

question 21, but only awarded compensation in question 22 against

Peerless for fraud in connection with the $17,981 transaction. The

jury therefore found that the Hubbards did not commit fraud in the

$100,000 transaction. 78 See Fed.R.Civ.P. 51 ("No party may assign as error the

giving or the failure to give an instruction unless the party

objects thereto before the jury retires to consider its verdict,

stating distinctly the matter objected to and the grounds of the

objection."); McDaniel v. Anheuser-Busch, Inc., 987 F.2d 298,

306 (5th Cir.1993) ("A party has the burden to request the

submission of its issues to the jury and to request instructions

on each such issue.... [F]ailure to object to the wording of a

special issue prevents a party from objecting to such wording on

appeal."); Pan Eastern Exploration Co. v. Hufo Oils, 855 F.2d

1106, 1123 (5th Cir.1988) ("A party must ordinarily object

precisely to the wording of jury instructions and

interrogatories....").

9 Thrift argues that question # 21 queried only about fraud

through misrepresentations and that he had sufficie ntly proved

fraud in the $100,000 transaction in other ways; therefore, he

asks that we limit the jury's finding of no fraud with respect to

the $100, 000 transaction to misrepresentations. Interrogatory #

21, however, did not ask if the Hubbards had committed fraud

through misrepresentations; it asked if they had committed fraud.

The misrepresentations only impacted the definition of fraud.

Thrift had the burden of proving fraud, and if he believed that

fraud encompassed more th an the definition provided in the

instruction, he should have requested an instruction to that effect

and o bjected to its absence. Thrift, however, did not object to

the instruction's definition of fraud, and he is now bound by the

jury's finding. 8

Nonetheless, Thrift argues that, notwithstanding the jury's

finding, the district court should have found that fraud generally

committed by the Hubbards satisfied the actual fraud component of

article 2.21. We disagree. The liability imposed under article

2.21 concerns "shareholder liability for acts of the corporation in10

connection with contract claims," Farr, 810 S.W.2d at 296 (emphasis

added), and requires a showing of actual fraud in those acts, see,

e.g., Atlantic Richfield Co., 860 S.W.2d at 446 (imposing liability

where fraud was in those transactions at issue in case); F arr, 810

S.W.2d at 297 (describing evidence relevant to fraud determination,

all of which evidence related to transaction at issue). The jury

found fraud only in relation to the $17,981 claim, and it found no

fraud in relation to the $100,000 claim. Accordingly, the

Hubbards' fraudulent conduct was not "in connection with" the

$100,000 debt, and article 2.21 prevents individual liability of

the Hubbards for that debt.

The Hubbards also challenge the trial court's decision on the

alter ego issues. They contend that they should not be held

personally liable for the $17,981 transaction because Thrift failed

to prove that they received any direct personal benefit. The

evidence showed, however, that the funds that Peerless should have

used to repay Thrift were instead used, among other purposes, by

the Hubbards to make payments on the lease for the Peerless

offices. The payments directly benefited the Hubbards because

V ictor Hubbard held the lease in his own name. These facts

supported the jury's finding of alter ego. Therefore, the trial

court correctly used the jury's finding of al ter ego to hold the

Hubbards individually liable for the $17,981 debt. S ee

Tex.Bus.Corp. Act A nn. art. 2.21(A) (West Supp.1995) (allowing

impositio n of individual liability under alter ego theory where

fraud and direct personal benefit have been shown).9 See Quillen v. International Playtex, Inc., 789 F.2d 1041,

1043-44 (4th Cir.1986) (refusing to hold that defendant had

impliedly consented where evidence presented went to pleaded

issue primarily; therefore, "the defendant would have been

caught unaware" of the new issue); Trinity Carton Co. v.

11 B

Thrift contends next that the Hubbards should not recover for

interference with prospective business r e lations and that the

district court erred in instructing the jury on the issue because

the Hubbards failed to plead that cause of action. A court may

instruct the jury on an issue only if the issue has been properly

tried by the parties. N eubauer v. City of McAllen, 766 F.2d 1567,

1575 (5th Cir.1985) (holding that failure to try issue made

instruction on that issue reversible error). "The trial court has

no duty to give the jury an exegesis of legal principles that might

enable a plaintiff to recover or to instruct the jury on issues not

fairly raised by the pleadings, the pretrial order, or the course

of the trial." L aird v. Shell Oil Co., 770 F.2d 508, 510 (5th

Cir.1985).

The issue of interference with prospective business relations

was not tried by implied consent. The trial record contains

numerous objections, both individual and continuin g, to the

admission of evidence of Thrift's interfering conduct for the

purpose of proving interference with prospective relations.

Moreover, even without objections, the admission of this evidence

does not result in trial by implied consent because the evidence

was also relevant to the issue of interference with existing

contracts. 9 Accordingly, we look to the pleadings and the pretrialFalstaff Brewing Corp., 767 F.2d 184, 192 (5th Cir.1985) (holding

that trial by consent "requires that the parties actually

recognize the issue to have been litigated"), cert. denied, 475

U.S. 1017, 106 S.Ct. 1202, 89 L.Ed.2d 315 (1986); id. at 193

("Trial by consent may not be deemed where evidence concerning

the issue that is maintained to have been thusly tried is also

relevant to other issues that in fact have been pleaded and

tried, at least in the absence of clear notice that such issue

was being raised.").

10 See Branch-Hines v. Hebert, 939 F.2d 1311, 1319 (5th

Cir.1991) ("It is a well-settled rule that a joint pretrial order

signed by both parties supersedes all pleadings and governs the

issues and evidence to be presented at trial...."); Hall v.

State Farm Fire & Cas. Co., 937 F.2d 210, 212 (5th Cir.1991)

("Once entered, a pretrial order governs the trial."); Flannery

v. Carroll, 676 F.2d 126, 129 (5th Cir.1982) ("The claims,

issues, and evidence are limited by the [pretrial] order and the

course of the trial is thereby narrowed to expedite the

proceeding.").

11 The issue regarding tortious interference contained

Thrift's reservation: "Plaintiff/counter-defendants contend any

such question should be limited to defendants' pleadings which do

not allege interference with business relations and do not

mention Grammco/Andrews."

The relevant portion of the Hubbards' pleadings is as

follows:

B. Interference with Contractual Relationships

1. Thrift intentionally and willfully induced TFC,

Inc. to breach and violate the provisions of a contract

between TFC, Inc. of Minnesota and the Hubbards d/b/a

GP Services. Such contract called for the delivery of

hardware and software and services to TFC, Inc. for the

approximate amount of $37,000.00. Thrift falsely

represented to TFC, Inc. that the Hubbards had no right

12 order to determine if the Hubbards properly raised the issue. The

Hubbards respond that even if their pleadings were defective, the

Hubbards' proper inclusion of the issue in the pretrial order

superseded the pleadings and made the issue available for trial. 10

Thrift, however, contested the issue in the pretrial order, arguing

defective pleadings. 11 Although the magistrate judge never ruledto sell the software in question and made other false

representations. Such inducement by Thrift was without

legal excuse or other justification and has resulted in

Thrift wrongfully damaging the Hubbards by depriving

them of profits which they otherwise would have

received under the contract.

2. Thrift intentionally and willfully induced two

other customers of the Hubbards. Sunbelt Transformers

and Laventhol & Horwath to breach agreements with the

Hubbards, d/b/a GP Services, and to cancel orders for

hardware and software and services. Thrift, either

individually or by and through authorized agen[ ]ts,

falsely represented to said companies that the Hubbards

had no right to sell the software in question and made

other false representations. Such inducements by

Thrift were without legal excuse or other justification

and have resulted in Thrift wrongfully damaging the

Hubbards by wrongfully depriving them of profits which

they otherwise would have received under the contracts.

3. Thrift, by and through authorized agents, has

sent letters to all of the customers of the Hubbards

d/b/a GP Services for the purpose of inducing said

[sic] customers to cancel their dealings with the

Hubbards and to instead deal with Thrift's new

corporation, EMIS SOFTWARE, Inc. Such letters falsely

represented that the Hubbards had no right to sell the

software which they were selling and made other false

representations. Such letters were sent without legal

excuse or other justification and have resulted in

losses of sales, referral, and reputation suffered by

the Hubbards.

4. Thrift acted with malicious intent in all

instances set out above in that he persuaded the

contracting parties to breach their contracts out of

spite and ill-will towards the Hubbards and for the

sole purpose of causing economic injury to the

Hubbards, and because they refused to cooperate with

Thrift's plan to defraud the creditors of Peerless.

The Hubbards seek exemplary damages far in excess of

the Court's minimum jurisdictional amount.

13 on this objection, he implicitly overruled the objection by

admitting the evidence of Thrift's interfering conduct during the12 Moreover, because the issue was raised in the pretrial

order, even if objected to, Thrift cannot, and indeed did not,

argue that admission of evidence on this issue caused any

surprise.

13 See also Fed.R.Civ.P. 8(a) (requiring only "a short and

plain statement"), 8(e) ("Each averment of a pleading shall be

simple, concise, and direct."); Colle v. Brazos County, Tex.,

981 F.2d 237, 243 (5th Cir.1993) ("A plaintiff's complaint

ordinarily need only be a short and plain statement that gives

the defendant notice of what the claim is and the grounds upon

which it rests."); Perkins v. Silverstein, 939 F.2d 463, 467

(7th Cir.1991) (requiring plaintiffs to "identify the grounds

upon which their claims are based ... even under the liberal

notice pleading" (footnote omitted)); Bechtel v. Robinson, 886

F.2d 644, 650 n. 9 (3d Cir.1989) ("[A]s long as the issue is

pled, a party does not have to state the exact theory of relief

in order to obtain a remedy.").

14 See Torres Ramirez v. Bermudez Garcia, 898 F.2d 224, 226-

27 (1st Cir.1990) (holding that, if basis described, "the parties

were therefore aware of plaintiff's legal theory" even where the

theory was mischaracterized (citation omitted)); Lamborn v.

Dittmer, 873 F.2d 522, 526 (2d Cir.1989) (holding that the

pretrial order did not adequately disclose a theory because it

did not give notice of that theory); In re Burzynski, 989 F.2d

733, 738-39 (5th Cir.1993) (assessing whether plaintiff had

stated cause of action by alleging the elements of each tort).

14 trial. 12

We review a trial court's interpretation of a pretrial order

o nly for abuse of discretion. H all, 937 F.2d at 212; F lannery,

676 F.2d at 129. Under the Federal Rules of Civil Procedure, a

pleading, or pretrial order, need not specify in exact detail every

possible theory of recovery—it must only "give the defendant fair

notice of what the plaintiff's claim is and the grounds upon which

it rests." C onley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2

L.Ed.2d 80 (1957). 13 Accordingly, the Hubbards satisfied the Rule

8 requirement if they gave notice of both causes of action. 14

Texas law recognizes a cause of action for either15 See Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931,

939 (Tex.1991) (setting out elements of cause of action for

tortious interference); Juliette Fowler Homes, 793 S.W.2d at 664

(same); see also Allsup, 808 S.W.2d at 654 (applying elements);

CF & I Steel Corp. v. Pete Sublett & Co., 623 S.W.2d 709, 713

(Tex.Civ.App.—Houston [1st Dist.] 1981, writ ref'd n.r.e.)

(evaluating findings on elements).

15 interference with existing or with prospective contractual

r elations. J uliette Fowler Homes v. Welch Assocs., Inc., 793

S.W.2d 660, 665 (Tex.1990) ("Texas law protects exist ing and

prospective contracts from interference."); E xxon Corp. v. Allsup,

808 S.W.2d 648, 659 (Tex. App.—Corpus Christi 1991, writ denied)

("Texas law protects prospective as well as existing contracts from

third party interference."). Tortious interference with an

existing contract consists of:

(1) the existence of a contract subject to interference,

(2) a willful and intentional act of interference,

(3) such act was a proximate cause of damage, and

(4) actual damage or loss occurred.

Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 926 (Tex.1993). 15

Interference with prospective contracts has slightly different

elements:

(1) a reasonable probability that the parties would have

entered into a contractual relationship,

(2) an intentional an d malicious act by the defendant that

prevented the relationship from occurring, with the purpose of

harming the plaintiff,

(3) the defendant lacked privilege or justification to do the

act, and

(4) actual harm or damage resulted from the defe ndant's

interference.16 See Caller-Times Publishing Co. v. Triad Communications,

Inc., 855 S.W.2d 18, 21 (Tex.App.—Corpus Christi 1993, no writ)

("To prove tortious interference with prospective contracts or

business relationships, the plaintiff must prove ... a

contractual relationship that the plaintiff had a reasonable

probability of realizing...."); American Medical Int'l, Inc. v.

Guirintano, 821 S.W.2d 331, 337 (Tex.App.—Houston [14th Dist.]

1991, no writ) ("To recover on a cause of action for tortious

interference with a prospective business relationship, the

plaintiff must show: (1) there was a reasonable probability that

he would have entered into a business relationship...."); see also Verkin v. Melroy, 699 F.2d 729, 733 (5th Cir.1983)

(requiring knowledge of prospective relationship).

17 See CF & I Steel Corp., 623 S.W.2d at 715 ("Interference

with a business relationship is similar to the tort of contract

interference. It is not necessary to establish the existence of

a valid contract, but the interference with a general business

relationship is actionable only if the defendant's interference

is proven to be motivated by malice."); see also Deauville Corp.

v. Federated Dep't Stores, Inc., 756 F.2d 1183, 1196 (5th

Cir.1985) (holding that the difference between interference with

contract and prospective relations is that second tort requires

showing of "malice'); Verkin, 699 F.2d at 733 (requiring intent

to harm).

16 All sup, 808 S.W.2d at 659. These two torts differ primarily in

that interference with prospective relations requires the

plaintiffs to prove both that they had a reasonable probability of

obtaining a contract 16 and that the defendant acted with malice. 17

The pretrial order included the following "Additional

Contested Issue[ ] of Fact":

Did Terry Thrift and/or EMIS Software, Inc. d efame the

Hubbards, interfere with business or contractual relationships

of the Hubbards, or intentionally or recklessly inflict

emo tional distress on the Hubbards in the following

transactions:

(1) Sunbelt Transformer

(2) Laventhol Horwath

(3) TFC Corporation

(4) Grammco/Andrews18 Thrift contends that the pleading heading "Interference

with Contractual Relationships" necessarily limits the Hubbards'

pleading to existing contracts. The heading does not specify

only existing contracts, however, and the term "Contractual

Relationships" can encompass both existing and future

relationships. Next, Thrift argues that the Hubbards' pleading

allegations related only to existing contracts. Although we can

identify statements implying only existing contracts, there are

also references to future contracts. For example, allegation B.3

refers to "dealings" and "losses of ... referral." Moreover, the

allegations allege both the knowledge of the prospective

relationship and the intent to harm required to show malice. See

supra note 11.

19 See also Anheuser-Busch Cos., Inc. v. Summit Coffee Co.,

858 S.W.2d 928, 935 (Tex.App.—Dallas 1993, writ denied)

("Construction of an unambiguous contract is a legal issue to be

decided by the court.... The question of whether a contract is

ambiguous is a question of law." (citations omitted)), cert.

filed, 63 U.S.L.W. 3161 (Aug. 30, 1994) (No. 94-379); Staff

Indus., Inc. v. Hallmark Contracting, Inc., 846 S.W.2d 542, 545-

46 (Tex.App.—Corpus Christi 1993, no writ) ("Whether a contract

is ambiguous is a question of law for the court to decide....").

17 While it is arguable whether the pleadings adequately distinguished

between the two causes of action, 18 the pretrial or der clearly

identified both "business" and "contractual" relationships.

Accor dingly, we cannot say the magistrate judge abused his

discretion in determining that the pretrial order gave Thrift

sufficient notice of both claims.

C

Peerless argues that the Assignment and Option Agreement

("A/O Agreement") was not ambiguous and that th e district court

should not have submitted the special interrogatory that asked the

jury to determine whether the A/O Agreem ent had transferred

ownership of EMIS 1.1 and 1.2 to Thrift. Whether a contract is

ambiguous is a question of law. W atkins v. Petro-Search, Inc., 689

F.2d 537, 538 (5th Cir.1982). 19 Accordingly, we review this issue20 See Watkins, 689 F.2d at 538 (According to Texas law, "[a]

contract is ambiguous when it is reasonably susceptible to more

than one meaning, in the light of the surrounding circumstances

and after applying established rules of construction."); see

also Kurtz v. Jackson, 859 S.W.2d 609, 611 (Tex.App.—Houston [1st

Dist.] 1993, no writ) ("A contract is ambiguous only when there

is a genuine uncertainty which of two or more meanings is

correct.... If there is but one reasonable interpretation of the

contract, it is not ambiguous." (citations omitted)); Staff

Indus., 846 S.W.2d at 546 ("A contract, however, is ambiguous

when its meaning is uncertain and doubtful or it is reasonably

susceptible to more than one meaning."); Loehr v. Kincannon, 834

S.W.2d 445, 446 (Tex.App.—Houston [14th Dist.] 1992, no writ)

(same).

21 However, when a question relating to the construction of a

contract or its ambiguity is presented, the court is to

take the wording of the contract in the light of the

surrounding circumstances, in order to ascertain the

meaning that would be attached to the wording "by a

reasonably intelligent person acquainted with all

operative usages and knowing all the circumstances

prior to and contemporaneous with the making of the

integration, other than oral statements by the parties

of what they intended to mean."

Watkins, 689 F.2d at 538 (quoting Sun Oil Co. v. Madeley,

626 S.W.2d 726, 731 (Tex.1981)); see also Stephanz v.

Laird, 846 S.W.2d 895, 899 (Tex.App.—Houston [1st Dist.]

1993, writ denied) ("Whether a contract is ambiguous is a

legal question, reviewable by an appellate court in light of

the circumstances present when the parties entered into the

contract."); Staff Indus., 846 S.W.2d at 546 ("The

intention of the parties is to be ascertained to the extent

possible from the language of the contract itself, construed

18 de novo. See Hanssen v. Qantas Airways Ltd., 904 F.2d 267, 269

(5th Cir.1990) (reviewing question of ambiguity de novo ).

A contract is ambiguous "when its meaning is uncertain and

doubtful or it is rea sonably susceptible to more than one

meaning...." T owers of Tex., Inc. v. J & J Sys., Inc., 834 S.W.2d

1, 2 (Tex.1992). 20 In making this determination, a court evaluates

the language of the instrument in light of the surrounding

circumstances existing at the time of the contract. 21in connection with the circumstances surrounding the

execution of the contract. These surrounding circumstances

include what the particular industry considered to be the

norm or reasonable and prudent at the time." (citations

omitted)).

19 The provision in the A/O Agreement stated:

Thrift and Peerless intend that Thrift will provide a payment

of $100,000 to Peerless for the purpose of making the payment

to PECO to terminate the Definitive Agreement, and in exchange

will receive: (a) title to Software, with Peerless retaining

an exclusive license to use and market....

The definition section defined "software" as follows:

"Software" shall mean all software products identified

generally in Exhibit A to the Definitive Agreement, which is

Attachment 1(a) to this Agreement (including source code,

object code and related documentation and marketing

information) all of which were assigned to Peerless under the

Definitive Agreement.

The Agreement further provided:

In consideration of the payment to Peerless of $100,000,

Peerless assigns to Thrift all its rights, title and interest

in the following property:

(a) All Software including all copyrights, trade secret rights

and other pro prietary rights to software source code,

object code and related documentation.

Lastly, Attachment 1(a) lists "EMIS (Executive Management

Information System") as one of the software products.

Peerless argues t hat, because Exhibit A to the Definitive

Agreement between PECO and Peerless (the "PECO Agreement") included

only EMIS 1.0 at the ti me it was drafted, the A/O Agreement

unambiguously transferred rights to only EMIS 1.0. Neither party

contests that, at the time that Exhibit A to the PECO Agreement was

drafted, EMIS only included version 1.0. At the time that the A/O

Agreement was drafted and signed, however, EMIS included 1.0, 1.1,20

and 1.2. The software "identified generally" in Exhibit A to the

PECO Agreement was "EMIS." Nothing in the A/O Agreement clarifies

what date the A/O Agreement intended to use as the benchmark—the

date of the PECO Agreement with its E xhibit A or the date of the

A/O Agreement with its Attachment 1(a). Consequently, the district

court properly found that the A/O A greement was ambiguous and

submitted the question to the jury. See Watkins, 689 F.2d at 538

("[O]nce the contract is found to be ambiguous, the determination

of the parties' intent through the extrinsic evidence is a question

of fact."); s ee also Staff Indus., 846 S.W.2d at 546 ("When the

contract cont ains an ambiguity, its interpretation becomes a

question of fact based on the intention of the parties to it.").

Peerless also argues that, even if the A/O Agreement is

ambiguous, the jury's finding that it trans ferred rights to all

versions of EMIS to Thrift was against the great weight of the

evidence, and, therefore, the district court should not have denied

Peerless' request for a new trial. We will overturn a decision

de nying a motion for a new trial only where we find an abuse of

discretion by the district court. J ones v. Wal-Mart Stores, Inc.,

870 F.2d 982, 986 (5th Cir.1989); s ee also E.E.O.C. v. Clear Lake

Dodge, 25 F.3d 265, 271 n. 5 (5th Cir .1994) (stating that a

district court may grant a new trial if the verdict is against the

great weight of the evidence, but reviewing that decision for abuse

of discretion). "[A]ll the evidence must be viewed in a light most

favorable to the jury's v erdict," i d. at 987, and we will uphold

the district court's denial unless the evidence points "so strongly21

and overwhelmingly in favor of one party that

... [a] reasonable

[jury] could not arrive at a contrary [decision]," Boeing Co. v.

Shipman, 411 F.2d 365, 374 (5th Cir.1969), and theref ore the

district court abused its discretion in letting the verdict stand.

Thrift testified that he believed that the A/O Agreement

transferred rights to all versi ons of EMIS. Moreover, the

Hubbards' attorney testified that th e contract between PECO and

Peerless had not been incorporated into the A/O Agreement, and he

conceded that contract terms generally are construed as of the date

of formation. We hold that a reasonable jury could find that the

A/O Agreement transferred rights to all three versions of EMIS to

Thrift. Accordingly, we will not overturn the district court's

refusal to disturb the jury's verdict on this issue.

D

Peerless asserts next that the district court erred when it

held that, as a matte r of law, Peerless had not proven its usury

claim. " "Usury' is interest in excess of the amount allowed by

law." Tex.Rev.Civ.Stat.Ann. art. 5069-1.01(d) (West 1987). "

"Interest' is the compensation allowed by law for the use or

forbearance o r detention of money; provided however, this term

shall not include any time price differential however denominated

arising out of a credit sale." Tex.Rev.Civ.Stat.Ann. art. 5069-

1.01(a) (West 1987). "The essential elements of a usurious

transaction are (1) a loan of money; (2) an absolute obligation

that the principal be repaid; and (3) the exaction from the

borrower of a greater compensation than the amount allowed by law22 Thrift contends that the Second Note was a renewal of the

First Note; the Hubbards do not agree with this

characterization.

22 for the use o f money by the borrower." N ajarro v. SASI Int'l,

Ltd., 904 F.2d 1002, 1005 (5th Cir.1990), cert. denied, 498 U.S.

1048, 111 S.Ct. 755, 112 L.Ed.2d 775 (1991); a ccord First Bank v.

Tony's Tortilla Factory, Inc., 877 S.W.2d 285, 287 (Tex.1994). We

construe the usury statute strictly, First Bank, 877 S.W.2d at 287

("Usury statutes are penal in nature and should be strictly

construed."), and favor Thrift whenever any doubt occurs, see

Tygrett v. University Gardens Homeowners' Ass'n, 687 S.W.2d 481,

485 (Tex.App.—Dallas 1985, writ ref'd n.r.e.) ("Any doubt as to the

intention of the legislature to punish the conduct of the party

should be resolved in favor of the defendant.").

Peerless argues that, because Thrift advanced no new funds,

the Second Note is usurious on its face. We disagree. In

determining the effect of the Second Note, we consider all the

relevant documents as well as the surrounding cir cumstances. 2 2

Tygrett, 687 S.W.2d at 485 ("The question of usury must be

determined by a construction of all the documents constituting the

transaction, interpreted as a whole, and in light of the attending

circumstances."). Although the initial paragraph of the Second

Note states that Peerless promises to p ay $109,776.10, the

remainder of the instrument clearly explains in its title that it

is a "Revolving Credit Note" and also that the amount Peerless must

pay is limited on ly to the unpaid principal and any interest due

thereon.23

The unpaid principal balance of this note at any time shall be

the total amounts loaned or advanced hereunder by the holder

hereof, less the amount of payments or prepayments of the

principal made by or for the acc o unt of Maker. It is

contemplated that the Maker m ay repay portions of the

outstanding principal balance of this note at such time as it

may receive payment from its account debtors and therefore, by

reason of these prepayments hereon there may be such time when

no indebtedness is owing hereunder....

Plaintiff's Ex. 21 (Feb. 19, 1987 Revolving C redit Note ("Second

Note")). We presume that Thrift did not intend the Second Note to

be usurious. S ee Tygrett, 687 S.W. 2d at 485 ("[T]here is a

presumption that the parties intended a nonusurious contract; when

the contract by its terms, construed as a whole, is doubtful, or

even susceptible to m ore than one reasonable construction, the

court will adopt the construction which comports with legality.").

Moreov er, the Second Note contained a savings clause, and Texas

courts have held that savings clauses demonstrate a party's intent

that the instrument be nonusurious. See F.S.L.I.C. v. Kralj, 968

F.2d 500, 505 (5th Ci r.1992) ("Texas state courts have construed

savings clauses to defeat an interpretation of a contract that

would violate the usury laws."). Accordingly, the Second Note

obligated Peerless to pay no more than what was advanced, and thus

is not usurious on its face.

Peerless also argues that, because the foreclosure satisfied

the debt that the Hubbards and Peerless owed, Thrift's demand for

pay-off constituted usury. Because the Second Note is not usurious

on it s face, Peerless bears the burden of proving usury. S ee

Najarro, 904 F.2d at 1005-06 ("Where the transaction appears lawful

on its face, the party claiming usury has the burden of proof.").23 At the time Thrift wrote the letter, he believed that the

stock transfer had not satisfied the original debt.

24 On May 20, 1987, Thrift sent a letter to Peerless demanding payment

on the Second Note. S ee Plaintiff's Ex. 30 ("Demand Letter")

( "This is to place in writing my verbal demand made this morning

for pay off of the $109,776.10 Revolving Credit Note, dated

February 19, 1987.... I demand that any payment received by you

from this day forward be signed over to me until such time as

principal and interest is paid."). Peerless argues that this

letter demand ed payment of the face amount, $109,776.10. We

disagree. Nowhere in the letter does Thrift demand $109,776.10—he

merely demands payoff of the note. Moreover, the demand for

signed-over payments "until such time as principal and interest is

paid" does not ask for more than what was currently due on the

note. If, as Peerless claims, nothing is due, then Thrift's letter

demands nothi ng. 2 3 Construing the Demand Letter in favor of

legality, see Tygrett, 687 S.W.2d at 485 (presumi ng construction

that is not usurious), we hold that it demands only the unpaid

principal and accrued interest, however much that actually is. C f.

Tanner Dev. Co. v. Ferguson, 561 S.W.2d 777, 789 (Tex.1977)

(refusing to consider demand letter usu rious because it claimed

unpaid balance and not full face amount of note). Therefore, the

district court correctly found as a matter of law that Peerless had

failed to establish a claim for usury.

E

Peerless contends further that the district court improperly24 Peerless argues that allowing compounded interest would

impermissibly add to the contract. Awards of prejudgment

interest are damages, however, and need not be specified in the

contract nor agreed to by the parties.

25 awarded annual compounding of the prejudgment interest on the

$87,122.85 note. The parties agree that the note provided the rate

applicable for prejudgment interest—eighteen percent (the contract

specified the "highest rate allowed by applicable law"). They

disagree as to whether and to what extent compounding is allowed.

Because the note provided the rate for prejudgment interest,

we look first to determine if the note also provided guidance on

compounding. C f. FDIC v. Blanton, 918 F.2d 524, 532-33 (5th

Cir.1990) (refusing to apply statutory rate when parties had agreed

to different rate). Thrift argues that the note parallels the

contract in Texon Energy Corp. v. Dow Chemical Co., 733 S.W.2d 328

(Tex.App.—Houston [14th Dist.] 1987, writ ref'd n.r.e.), which

provided for monthly compounding because it applied an annual

interest rate monthly. I d. at 331. Here, the note also applies an

annual interest rate, but nothing in the note defines the frequency

of application. Accordingly, the note is not dispositive on this

issue. 24

"The Texas law of prejudgment interest can fairly be described

as bewildering." C oncorde Limousines, Inc. v. Moloney

Coachbuilders, Inc., 835 F.2d 541, 548 (5th Cir.1987). Cavnar v.

Quality Control Parking, Inc.

, 696 S.W.2d 549, 554 (Tex.1985),

provides the benchmark for awards of prejudgment interest.

Although Cavn ar was a wrongful death case, Texas courts have25 See Enterprise-Laredo Assocs. v. Hachar's, Inc., 839

S.W.2d 822, 839 (Tex.App.—San Antonio 1992, writ denied)

("[P]rejudgment interest may be awarded on a breach of contract

claim."); O'Reilly v. Grafham, 797 S.W.2d 399, 401-02

(Tex.App.—Austin 1990, no writ) (holding that Cavnar rule applies

to "non-personal injury, economic damages" cases).

26 Tex.Rev.Stat.Ann. art. 5069-1.05, § 1 (West Supp.1995)

provides:

All judgments of the courts of this state based on a

contract that provides for a specific rate of interest

earn interest at a rate equal to the lesser of:

(1) the rate specified in the contract; or

(2) 18 percent.

26 extended its application to cases involving economic damages. 25

U n der Cavnar, "a prevailing plaintiff may recover prejudgment

interest compounded daily (based on a 365-day year) on damages that

have accrued by the time of judgment." Cavnar, 696 S.W.2d at 554

(emphasis omitted).

After Cavnar

, the Texas legislature enacted reform statutes

specifying judgment interest in particular types of cases.

Peerless argues that, because t he note determined the interest

rate, simple interest under article 5069-1.05, § 1 should apply. 26

Section 1, however, defines only the rate; it is silent as to

compounding. Therefore, we revert to the common law and C avnar.

Spangler v. Jones, 861 S.W.2d 392, 398 (Tex.App.—Dallas 1993)

(holdi ng that, where statute did not apply, C avnar remained the

law).

Ap parently, the district court awarded annual compounding27 Tex.Rev.Stat.Ann. art. 5069-1.05, § 2 (West Supp.1995)

provides for judgment interest where no contract has specified

the rate.

28 Because incorporation of § 2 is not necessary, we need not

address the conflict in Fifth Circuit law concerning what form of

compounding should apply when § 2 is incorporated. Compare Law

Offices of Moore & Assocs. v. Aetna Ins. Co., 902 F.2d 418, 421

(5th Cir.1990) (daily compounding) and Concorde Limousines, 835

F.2d at 550 (daily compounding) with Guest v. Phillips Petroleum

Co., 981 F.2d 218, 223 (5th Cir.1993) (annual compounding). We

note, however, that we would be bound by the earliest decision,

Concorde Limousines, to apply daily compounding. See In re

Howard, 972 F.2d 639, 641 (5th Cir.1992) (viewing earlier

decision as binding when conflict exists); see also Broussard v.

Southern Pac. Transp. Co., 665 F.2d 1387, 1389 (5th Cir.1982) (en

banc) ("The general rule in this Circuit is that one panel cannot

overrule another panel."). The Texas courts have exhibited a

similar conflict. Compare Spangler, 861 S.W.2d at 399 (using

daily compounding and overruling OKC Corp., infra) and City of

Houston v. Wolfe, 712 S.W.2d 228, 230 (Tex.App.—Houston [14th

Dist.] 1986, writ ref'd) (daily compounding) with EnterpriseLaredo Assocs., 839 S.W.2d at 839 (annual compounding) and OKC

Corp. v. UPG Inc., 798 S.W.2d 300, 307 (Tex.App.—Dallas 1990,

writ denied) (annual compounding), overruled as stated in

Spangler, 861 S.W.2d at 399.

27 because one holding in Cavnar looked to article 5069-1.05, § 2. 2 7

That Cavnar holding, howe ver, only applies when damages are

unascertainable under the contract. In this case, the note clearly

defined the damages, and the incorporation of § 2 is not

necessary. 28 Consequently, C avnar's default specification of daily

compounding applies, and the district court should have calculated

prejudgment interest on the note with daily compounding. S ee State

v. Enterprise Bank, 873 S.W.2d 117, 119 (Tex.App.—Waco 1994, writ

denied) (explaining that daily compounding applies unless statute

dictates otherwise); C iba-Geigy Corp. v. Stephens, 871 S.W.2d 317,

321-22 (Tex.App.—Eastland 1994, writ denied) (same); O 'Reilly, 797

S.W.2d at 401 (applying daily compounding to economic damages29 Peerless also argues that compounding would result in a

usurious rate. Usury however does not apply to judicial awards

of prejudgment interest. Sage St. Assocs. v. Northdale Constr.

Co., 863 S.W.2d 438, 440 (Tex.1993).

28 cases); A llen v. Allen, 751 S.W.2d 567, 576 (Tex.App.—Houston

[14th Dist.] 1988, writ denied) (compounding daily under Cavnar ). 29

The Hubbards argue additionally that the district court erred

when it set the start of prejudgment interest accrual on their

intentional infliction of emotional distress claims at 180 days

after the filing of those claims. They challenge both the 180 day

clock and its start on the date of filing of the emotional distress

claims rather than that of the original suit.

Article 5069-1.05, § 6 provides that pre judgment interest

begins to accrue 180 days after the date the defendant first

received written notice of the claim or on the day suit is filed,

whichever occurs first. The Hubbards argue that the filing of

their original suit in February, 1988, triggered the accrual of

prejudgment i nterest. We disagree, because the Hubbards did not

allege intentional infliction of emotional distress i n their

original complaint. The purpose of prejudgment interest is to

encourage settlement. Cavnar, 696 S.W.2d at 554. If a defendant

has no notice of a claim, the re is nothing to encourage. Thrift

first received written notice of the Hubbards' emotional distress

claims when the Hubbards amended their pleadings to include these

claims. Consequently, prior to the first notice, Thrift could not

have settled the claim, and the district court properly used the

date of the amended complaint to trigger the accrual of prejudgment29

interest.

The district court erred, however, in applying the 180-day

delay. The 180-day delay specified in the statute only applies to

the "first written notice" portion. Hughes v. Thrash, 832 S.W.2d

779, 787 (Tex.App.—Houston [1s t Dist.] 1992). Thrift first

received written notice of the emotional distress claim on November

13, 1990, when th e Hubbards amended their complaint. Therefore,

180 days after that first written notice corresponded to May 12,

1991. "The day suit was filed," however, was November 13, 1990,

and the statute starts accrual of prejudgment interest on the

earlier of the two dates. Consequently, because November 13, 1990

("the day suit was filed") predated May 12, 1991 (180 days after

the first written notice), prejudgment in terest on the Hubbards'

emotional distress claims should have started accruing on November

13, 1990, the date the Hubbards amended their suit to allege

emotional distress.

III

For the foregoing reasons, we AFFIRM all portions of the

district court's judgment except the awards of prejudgment interest

to Thrift on the $87,122.85 note and to the Hubbards on their

intentional infliction of emotional distress claim s. We VACATE

these two awards and REMAND them to the district court for proper

recalculation.