NO. 07-02-0366 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A DECEM BER 9, 2 003

______________________________ RONALD J. HET TLER, ROBI N HETTLER AND CO RNW ALL PERSONAL INSURA NCE AG ENCY, INC. F/D/B /A HETTLE R-BREN HOLTZ INSUR ANCE, APP ELLA NTS V. W ILLIAM DAVID B RENHOLTZ, A PPELLE E

_________________________________ FROM THE 364 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 97-558,843; HON ORABLEBRADL EY S. UNDER W OOD, JUDGE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPB ELL, JJ. MEM ORAN DUM OP INI ON Presenting eight points of error, Ronald J. He ttle r, Robin Het tler , an d Co rnw

all Personal Insurance Agency, Inc. f/d/ b/a Hettler -Brenholt z Insurance (the Agen cy )2

challenge the judgm ent following a jury trial that Wi lliam David Brenholtz recover dam ages for, am ong other claims, breach of contract, f raud, conversion, an d inter ference with business relationships. By points one thro ugh seven, the y allege thetrial court err ed in (1) denying their no-evidence mot ion for summ ary judgm ent; (2) soliciting and considering oral testi mony

to dete rmine the va lidity of the contract; (3) ruling that a docum ent c onstituted an enforceable contract betw een Brenholtz, Ronald, and the A genc y as a mat ter of l a w; (4) a warding dam ages for Ronald’s breach of contract as insufficient evidence exi st ed to ju st ify the award; (5) s ubmitting an issue of f raud to the j ury as to Ron ald in tort; (6) subm itting liabi lity issues in tort as to Robin as there w as no evidence she com mitted those torts; and (7) s ubm itting the ins truction as to e xem plarydam ages as itfails to instruct the jur ywhat conduct could be consi dered to assess puni tive damages. Bytheir eighth point , t hey contend the punitive dam ages award was ex cessive. Based upon the rationale expressed herein, w e affirm. Ron ald and Brenholtz, licensed insurance a gents, both worked for Cornwall Stevens South west, Inc. When Ronald resigned from Cornw all in 1992, he purchased part o f Cornwall’s book of business and sta rt ed his own insurance agenc y. Also, in 1992, Brenho ltz resi gned from Cornwall and purchased anot her part of the Cornw all book of business. After their resignations and w hile operating independently, on occasion they visited socially. Then, in 1994, the Agency, then owned and m anaged by Ronald, hired Brenholtz and he brought his book of business to the firm

. Ronald was P resident of the3

corporation and Brenh oltz w as V ic e Pre sident. They entered into an oral agreem ent at thattime, and on Novem ber 20, 1996, it wa s reduced to w riting when they signed an informal me morandum

drafted by Brenholtz. Although Ronald claimed t he m emorandu m did not accurat ely reflect the original agreement in 1994, and w as partially incomplete, nev ert hele ss, he s igne d it. Ro bin d id accounting for the Agenc y out of her hom e, a nd in 1996, she becam e licensed as an insurance age nt at Ro nald’s request because the Agencywas losing m oney. She com menced wor king in t he office as an agent and accountant

in January 1997; howev er, shewas not an officer of

the co rporation n or a shareho lder. Beforethe parties subm itted the Novem ber 20 m emorandu m to counsel for form al preparat ion, on Feb ruary 13, 199 7, Rona ld sent Brenholtz a tw o-page handwritten letter on Hettler-Brenholtz Insurance letterhead. The letter, w hich contained his final paycheck, notified Brenholtzhe was being terminated as of F ebr uar y 14and tra nsm itte d an off er in the form of a buy-sell agreem ent. Am ong other things, Brenholtz w as informed as foll ows:

• he was n o longer an employee;

• the staff had been i nstructed to deny hi m entry into the agency;

• the locks had been changed; and

• the police would be called if he showed up

.4

Th en, on February 1 7, 1997, employees of the Agency commenced sending let ters t o cus tom ers inf orming them that Brenholtz w

as no longer with the A gency and that “Ron Hettler will now be s ervicing yo ur insurance needs .”

Ba se d on the letter of term ination, Brenholtz com menced the underlying action against Ronald, Robi n, and the Agency by seeki ng a temporary restrai ning ord er. He also soughtdam ages for breach of con tract, fraud, con version, i nterference with business relati onships, and an accounting. Following hearings on num er ous ma tters, the trial com menced on February 19, 2002. B ased on the jury ’s findings, the trial court signed its jud gm ent tha t Bren holtz recover:

• $232,601 agai nst Ronald and the Agency, jointly and se verall y;

• $10,000 agai nst Ronald, Robi n, and the Agency, jointl y and several ly;

• $200,000 agai nst Ronald for exem plary damages;

• $200,000 agai nst Robin for e xem plary damages;

• $200,000 agai nst the Agency for exemplary damages; plus attorney’s fees and interest. By their first point, Ronald, Robin, and the Agency conte nd thetria l cou rt e rre d in denying their no-evidence mot ion for summary judgment. W e dis agree . As a ge ner al ru le the denial ofa sum mary judgm ent is not reviewable on appeal because it is not a f inal1 We will co nside r poin ts 2 a nd 3 toge the r. 2 In sum m ar y, the d ocu m ent pro vi ded

Stated partnership agre ement between parties, as discussed and agreed to before 6/1/94. Ron “brings” certain assets, furniture, etc. David brings his current business asse ts including m arkets, furniture, customers, etc. Each to retain owne rship of assets and ne w customers. Ron reta ins 10 0% of s tock s ubje ct to h is pur chas e a gre eme nt. Ron is preside nt and David is vice pre sident. No othe r corporate officers. Agency to purchase

key man insurance on Ro n and David. Profits to be shar ed prop ortion ate ly bas ed upon pe rsona l prod uction

. Eac h to hav e expens e acc oun ts for nor m al bus in ess a nd c ar al lo wan ce. 5 judgm ent. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996). See also com ment

to Rule 166a(i) Tex. R. C iv. P. (the denial of a m otion under paragraph (i) is no m ore reviewable by appeal or m andam us than the denial of a mo tion under paragrap h (c)). Point of error one is overruled. Bypoin t of

err or t w o, Rona ld co nte ndsthetria l c ourt erred in considering oral testimony

when it granted Brenho ltz’ s m otion fo r partial summ ary judgm ent as to the validity of the contract, a nd by his third point, 1 contends the trial court erred in ruling that a docum ent introduced into evidence constituted an enforceable contrac t. We di sagree. The challenged docum ent was admitted into evidence as Plaintiff’s Exhibit 7, which can best be de sc ri be d a s a te n p ar ag ra ph i nf or mal pr i nt ed me mo randum with handw ritten notation s, about one-half page in length, dated Novem ber 20, 1996, and sign ed b y R ona ld and Brenhol tz. 2 W hen the question was firstpresented by m otion for partial summ ary judgm ent, the trial court wa s of the opinion that an agreem ent did not exist and den i ed the m otion.3 The instruction made no refe rence to Robin or the Age ncy. 6 However, after heari ng testimony duri ng trial, the court announced it had changed its decision and concluded th at an a greement existed as a mat

ter of law. A mong other instructions, as related to the contract issue, the jury was instructed as follows: You areinstructed that the court has found an agreem ent existed betw een David B renholtz a nd Ron Hettler. 3 You mu st decide the m eaning of the agreem entby determ ining the intent of the p arties at the timeof the agreem ent. Consider all the facts and circumstances surrounding the m aking of the agreem ent, the interpretation placed on th e agreement by the partie s, and the conduct of the parties. Question No. 1 fo llowed the i nstruction s: Question No. 1 Did Ron Hettler fail to com ply with the agreem ent? Answer “yes” or “no.” Answer: Yes Byhis ple adings, Ronald alleged the 1994 oral agreement w as a contract of em ployment bythe A gency a nd by v erified denial, expressly d enied a par tnership a rra ngem ent. On appeal Ronald argues in part: Brenholtz clearly is atte mp ting to m odif y th e or igina l agr

eem ent m adein June 1994. There never w as a partnership.7

Here, Ron ald r

ene w s his

adm ission that an agreem ent was made, but disputes it created a partnership. The trial court has considerable discret ion to determ ine necessary and proper jury instructio ns. See Texas Workers’ Com p. Ins. v. M andlbauer, 34 S.W.3d 909, 911 (Tex. 2000). Moreover, by h is points of error, Ronald does not assert charge error, and as sub m it ted, Question No. 1 w as substantially similar to a question proposed by Ron ald’ s tr ial c oun sel. The intention of the parti es to an agreem ent is norma lly a question of fact. See Scott v. Ingle Bros. Pacific, Inc., 489 S .W .2d 554, 555 (Tex. 1972). A lso, in Ishin Speed Sport, Inc. v. Ruthe rford, 933 S.W.2d 343, 348 (Tex.App. --Fort W orth 1996, no w rit), the court held: However, even if an offer an d accep tance a re not re corded o n paper, dealings between parties m ay result in an implied contr actwhere the facts show that the m inds of the parties m et on the term s of the contract w ithout anylegal l y express ed agreem ent. Accordingly, the parties’ conduct m ay convey an objective as sent to the term s of an agreem ent, and w het her the ir conduct evidences their agreem entis a question to be resolved by the finder of fact. [Citations om itted]. However, whet her an agreem entis lega lly enf orceable is a question of law. Ronin v. Lerner, 7 S.W.3d 883, 886 (Tex.App.--Houston [1st D ist.] 199 9, no pe t.). The trial court did not inst ruc t th e j ury tha t P laint iff’ s E xh ibit

7 c on ta i ne d t he te rms of the agreem ent of the parties. Instea d, the j ury was only charged that an agreem ent was madeand wasinstructed to determ ine the intent of the parties. Indeed, Quest ion No. 18

is a classic example of broad- form subm iss ion a s authorized by Rule 277 of the Tex as Rules of Civil Procedure and is notchallenged on appeal. Accordingly, considering that Ron ald did not pl ead the affi rmative defense of statute offrauds app lied to Plainti ff’s Ex hibit 7, that Ronald, although contending a partnersh ip di d no t ex is t, adm itted an agreemen twas m ade, that the trial court did not rule thatPlaintiff’s Exhibit 7 contained the agreemen tof

the parties, but subm itted the question to the j ury, iss ues tw o and th ree are overruled. By point of error four, Ronald contends the trial court erred in awarding dam ages for his breach ofcontract as insu fficie nt evidence e xisted to justify t h e award. Ronald’s cha lleng e is based on his con ten tion tha t th e te stim ony and rep ort

of t he cert ified pub lic accountant

called by Brenholtz was insuffi cient to estab lish da mages. Am ong other claim s, R onald argues the accountant’s calculations were based on im proper me thodology and that the w ritten report introduced at trial was not an audit report and was, in part, based on hearsay. We disagree. A party cannot rai se an objection to evi dence for the first time on appeal. Tex. R. App. P. 33.1(a); see also Prat i v. New Prim e, Inc. , 949 S .W.2d 552, 554 (Tex.A pp.-- Am arillo1997, pet. deni ed). Also, a cl aim that an expert’s tes tim ony or r epo rt isunr

eliab le must be presented by obj ection to the evidence before or w hen offe red at trial. See Guadalupe -Blanco River A uthority v. Kraft, 77 S.W.3d 805, 80 7 (Tex . 2002). More over, under Rule 703 of the Texas Rules of Evidence, an exp ert opinion m ay be ba sed in part9

on facts or data“perceived by, reviewed by , or m ade known t o the expert” provided they are the type reasonably relied on by ex perts in the field. See Sosa By and Through Grant v. Koshy, 961 S .W .2d 420, 424 (Tex .App.--Houston [1st Dist.] 1997, pet . de n ied). Because Ronald did not object to the testim ony or evidence as required, point of error four presents nothing for review and is overruled. By point of error five, Ronald contends the trial court erred in submitting the fraud question to the j ury. We di sagree. The tria l c ourt inst ructed the j ury tha t fraud occurs when (a) a party

ma kes a m aterial misrepresentation, (b) the m isrepresentation is made with knowledge of its falsity or m ade recklessly without any knowledge of the truth and as a positi ve assertion, (c) the m isrepresentation is made w ith the intention that it should be acted on by the other party, and (d) the other party act s in rel iance on the misrepresentat ion and thereby suffers inj ury. Ronald argues the evidence w as insufficient to support

a finding of the element of reliance. He focuses h is argument on the testim ony of a form er co-worker t hat he intended to obtain B re nholtz’s custom ers by the new business association and that theco-w orker w

arn ed B ren holt

z of her con cer ns. Ro nald then argues that

because there w

as no evidence of reliance, there could be no fraud as a ma tter of law. H e also argues there was insufficient evidence to show fraud becaus e Brenholtz adm itted he rec eived his bo ok of b usiness after term ination; how ever, Brenholtz’s fraud claim was not based on the report of t he form er co-worker.4 Rona ld and the Age ncy d o not

join in this p oint of error.

10 Bre nholtz’s allegation of fraud was grounded on Ronald’s representation that ( 1 ) profits would be all ocated based on a ful l and fai r acco unting an d (2) all Brenholtz’s custom ers existing at the tim e of the com mencement of business and new

cus tom er s developed by Brenholtzw ould “re m ain Brenholtz’s custo mers ,” however, Ronald does not address the grounds of Brenh oltz’s fraud claim. The informal me morandum signed by the parties addressed the question of custom er accounts and rights thereto. It also provided for division of profits proportionately based upon the personal production “as a percentage of thew holeeach year” and for expenses accounts, car a llowances, and r eimbursements. Moreover, except for the refer ence to a “partnersh ip,” Ronal d’s testimon y confirme d that the ter m s of

theagr eem ent des crib ed in the mem orandum substantially comported with the term s of the 1994 oral agreement. Because Brenholtz’s claim of fraud aros e from the provisions expressed or necessarily arising from the me morandum signed by the parties and not the testim ony of the co-w orker, Ronald’s fifth point is overruled. Bypoint six , Robin contendsthe trial co urterred in submitting liability issues in tort as to her b ecausethere is no evid ence she comm itted those torts. 4 We disa gre e. I n his re sp on se , Br en ho lt z co nt en ds Rob in ’s c on te nt io n i s no t p re se rv ed fo r a pp el la te re vi ew. Objectionsto jury questions m ust be m ade before subm ission of the charge to the jury and as we held in Hart v. Moore, 952 S.W.2d 90, 96 (Tex.App. --Am arillo 1997, pet.5 Because Ron ald an d the

Age ncy d o not ch al len ge th e tor t f in di ngs , we n eed no t c ons id er wh eth er t hey preserved any objections. 11 denied), objections “m ust be suf fici ent ly s pec ific

to afford the trial court an opportunity to correct errors.” In determ ining whether reversibl e error exists, in Bell v. Missouri-Kan sasTexas Railroad Co. of Texas, 334 S.W.2d 513, 516 (Tex .Civ.A pp.-- Fort Worth 1 960 , w rit ref’d n.r.e), the court held: [a] part of the tests to beapplied involves the determination of w hether the com plainant so sufficiently stated the sam e contention and reason therefor in his objection to t he trial court as to m ake it apparent that the trial cou rt , though fully cognizant of the ground of com plaint, nevertheless chose to subm it the issue. In Haley v. GPM Gas Corp., 80 S. W.3d 11 4, 1 19 ( Tex .A pp. --A m arillo20 02 , n o p et .) , we held: Rule274 of t he Texas Rulesof Civil Pro cedurerequires that obj ections to the charge must

point out distinctly the objectionable m atter and the grounds of the obj ection, otherwise the obj ection is waived. Further, Rule 33.1(a) of the Texas Rules of Appellate Procedure requires that in order to preserve a comp la in t fo r o ur re vi ew, a party m ust distinctly specify an obj ection to the trial court so the trial court and the oth er party will be adv ised of t he obj ection. Thus, before we consider the point of error , we m ust f irst determine w hether Robin preserved her com plaint that there is no evidence she com mitted “thos e torts.” 512

Brenholtz’s br ea ch of

co nt ra ct an d f ra ud cl ai ms against Ronald only were subm itted by Questions 1, 2, 5, and 6. B renholtz’s claims against Ronald, Robin, and the Agency for conversion and intentional interfe rence w ith Brenholtz’s ex isting customers and prospecti ve business relations with his custom ers were s ubmitted byQuestions 3, 4, 7, 8, 9, a nd 10. At the charge conference, trial counsel for Ronald, Robin, and the A genc y com menced his objectionsbyaddressin g the contract cl aim which involved Ron ald onl y. Moving on to other questions, w ithout naming Robin, hema de broad form objections. For exam ple, regarding the conversion claim, he argue d “Brenholtz received each an d every bit of his property. No m atter what time it happened, he did have it all; and therefore, you can’t convert som eth ing that the ot he r p er so n a lr ea dy ha s. ” T he n, as t o t he two interfe rence with business relationship issues, w ithout designating Robin or any other party, he argued the evi dence simply poi nted out that Brenho ltz had al l his “b usiness relati onships” or that “al l conduct against thedef end ants ha ving occ urred in thepas t, t heir past conduct being–not being substantial enough or in ex istence t o suppo rt futu re business relationships.” Robin does not argue that the ques tion of her tortious conduct should have been sub m it ted by s eparate questions. Although the a ctions of Ronald and Robin were not ent irely com mon, the objectionswere not tailored to address the grounds of the individual parties, resulting in some confusion and uncert aint y. Furt her , th e br

oad pre sen tat ion d id not inform t he court that notw ithstanding the general nature of the objectio ns, they w ere6 Thispoint overlooks thatjury question 14 prope rly listed the 6 fac tors fo r the

jury to cons ide r pe r § 41 .011( a). 13 being presented on beh alf of Robi n in her i ndivi dual capaci ty. Considering that the charge conference followed an eight day trial with over 100 doc u ments adm itted into evidence, that m ultiple defendants wer e represented b y the same attorney, that breach of con tract and four distinct tort claims w ere presented with not

entirely comm on grounds am ong the parties, and the presentation of obj ections, we concludethe obj ections w ere so “general as to b e alm ost m eaningless. ” See Ron Craft Chevrolet, Inc . v. Davis, 836 S .W .2d 672, 6 75 (Tex.App. --El Paso 1992, w rit denied). They were also inadequate to dem on strat e thatthe trial court was “fully cognizant of the ground of the com plaint” and as such do not dist inct lyspecify the obj ection s to th e tri al court. Bell , 334 S .W.2d at 516. M oreover, Rob in does not contend th e trial court abused its discretion in submitting the tort questio ns. Texas Dept. of Hum an Services v. E.B. , 802 S.W.2d 647, 649 (Tex. 1990). P oint of error six is overruled. Bypoint se ven, Ro nald , R obin , an d th e A gen cy con ten d th e tr ial c our t er red in subm itting the jury

instruction on punitive damages in Questions 13 and 14 as it failed to instruct the jury

what conduct could be consider ed in assessi ng puniti ve damages. 6 We disagree. By his response B renholtz contends the point w as not preserved for

review

. Thus, beforewe com mence our analysis, we first review the objec

tion at trial to determine whether Ronald, Robin, and the Agenc y objec ted to Questions 13 and 14 bec ause an14

accom panying in st ruction “instructing the jury w hat conduct that could be considered to assess punitive dam ages” wasnot given. In add ition to t he a uth orit ies mentione d in our analysis of point six necessary to preserve charge error

for appellate review, the obj ection on appeal mus t com port with the objection in the trial court. See Haley, 80 S.W.3d at 120. Charge error is not presented on appeal because the instruction “fail[ed] to instruct the j ury what conduct that could be considered to ass ess pun itive dam ages.” Although our review of the record as referenced sh ows a “no evidence cha ll enge” was stated as to Questi on 13, and a no evi dence challenge as to evidence of “net w orth” was also pres ented as to Question 14, trial counsel did notobject to the absence of an instruction as to wh at conduct could be cons idered to assess punitive damages. Accordingly, becaus e the error claimed on appeal does not com por t w ith t hat

pre sen ted in t he t rial cour t, a llege d er ror , if

any, was not

preserved for review. Point of error seven is overruled. Ronald, Robin, and the Agency do not contend that the evidence was insufficient to support the j ury finding by clear and conv incing evidence that the harmto Brenholtz resulted from m alice but by thei r point of er ror eigh t, contend onl y that the puni tive damag es awarded were ex cessive. We disagree. Given the procedural pos ture, w e need n ot addre ss theawa rd of ex em plary damag es but focus our review on the am ount of the aw ard. By argum ent in their brief and7 See Act of April 11, 1995, 74th Leg., R.S. , ch. 19, § 1, 1995 Tex . Gen. Laws 108. 15 rep lybrie f, the He ttle rs and t he Agenc y rel y on So uthwes tern Investment Company v. Neel y, 452 S. W .2d 705 (Tex. 19 70), and Apache C orp. v. Moore, 960 S.W.2d 746 (Tex .A pp. –A m arillo199 7, writ den ied) , an d re que st t hat this Court m ake a suggestion of rem ittitur. Even though t hey do not contend t he jury abu sed its discretion or address the law and fac tor s c ontaine d in Tex. Civ. P rac. & Rem . Code Ann. §§ 41.001-41.013(Vernon 1997 & Su pp . 2 00 4) , whi ch is th e co nt ro ll in g l aw, to the ex tent applicable we w ill consider the point. Causes of action involving exem plary damagesthat accrued after S eptem ber 1, 1995, are now

governed by statute. See Tex. Civ. P rac. & Rem . Code Ann. §§ 41.001 - 41.013 (Vernon 1997 & Supp. 2004). 7 Subj ect to the limitations in section 41.008 of the Code, the Leg islature has direc ted tha t the am ount of

exe m plarydam ages to be aw arded is w ithin the discretion of the j ury. See § 41.01 0(b). Theawa rd should not be set aside as excess ive unless the am ount is so large as to i ndicatetha t it is the result of passion, prejudice, or corruption, or that the evidence has been disregarded. Ethicon, I nc. v. Martinez, 835 S.W.2d 826, 835 (Tex.App.–A ustin 1992, writ denied). When reviewing an awa rd of ex

em plary dam ages, w

e are not free toreweigh the e vidence a nd set aside a j ury verdict me rely be cause we feel that a d ifferent result is more reasona ble. Ellis County StateBank

v. Ke ever, 936 S.W.2d 683, 685 (Tex.App.–D allas 1996, no w rit), citing Pool16

v. Ford Motor Co ., 715 S.W.2d 629, 634 (Tex. 1986); see also Dill ard Dept. Stores, Inc. v. Silva, 106 S. W .3d 789, 801 (Tex .App. –Texarkana 2 003, pet . filed Jul. 2 2, 2003)

. The purpose of awarding exem plary damagesis to punish and deter the wrongf

ul conduct. § 41. 001(5); see also Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 16-17 (T ex. 1994). Factors to cons ider in determining the am ount of exemplary dam ages include: (1) the nature of the w rong; (2) the character of the conduct involved; (3) the d egree of

culpability of the w rongdoer ; (4) the situation and sensibiliti es of the parties concerned; (5) th e extent to which such conduct offends a public sense of just ice an d propriety; and (6) the net worth of the defendant. § 41.011(a); see also AlamoNat’l Bank v. Kraus, 616 S. W .2d 908, 910 (Tex . 1981). An award of

exem plary damages must be based on cle ar and convi ncing evi dence ( i.e. , that m easure or degree of proof which will produce in the mind of t he trier of fact a firm belief or conv iction as to the truth of t he allegations sought to be established). §§ 41.001(2) &41.003. How ever, the clear and convincing standard does not alter the rules gen era llyapplicable when appellate courts review the sufficiency of the j ury’s findings. In Re M.D .S., 1 S.W.3d 190, 1 97 (Tex .App. –Am arillo 1999, no pet.). Further, in our review17

of the am ount of exemplary dam ages we mus t address the evidence or lack thereof with specificity . § 41.0 13(a). Ron ald testified that his relationship with Brenholtz was as “good of friends as you cou ld have,” alth oug h th ey d id not socialize outside the office. Robin also testified that Ron ald considered Brenholtz a good friend and that th e decision to term inate h im wa s d ifficult. By late 1994, the Agency was runni ng smoothly with Ronald as Presi dent an d Brenholtz as Vice President. B oth Ronald and Robin testified that Robin agreed Brenholtz cou ld work at th e Ag ency as long as he w as not an ow ner or shareholder. Several witnessestestified that Bre nho ltz w as agoo d ag ent and w as a lw aystak ing care of h is customers. Hisaccounts varied fromcom merc ial to personal li nes. At the inception of the business relationship, Robin did the accounting at home without a salary. The eviden ce also established that the Agency did not have m uch office space available for Robin. The Agenc y also em ployed se veral cus tom er service repres entative s (CS R). Several witnesses testified that com missions w ere tracked through an Agenc y Managem entSys te m (AMS ) wh ich liste d producer code s for an account by i niti als ( i.e. , WD B for Br

enholtz, RJH f

or Rona ld, and AGY fo r accou nts pro d uced by the A gency). According to Robin, in 1996, Ronald inform ed her that the Agen cy was losing mo neyand he suggested she get licensed as an agent. Soon after Rob in began working in the office, she and Brenholtz had persona lity differences.18

In early 1997, Lynda Em anuel, an underwriter and CS R, ran a custom er list on the AMS and noticed that producer codes on som e of

Brenholtz’s account

s had been changed to reflect either Ronald or the Agency asproduc ers. S he informed B renholtz and he confronted Ron ald a nd t hey arg ued . E m anu el he ard Rob in cl aimtha t B ren holt z w ould not be receiving a paycheck because h e was no t producing, although she knew Brenholtz was produ cing. Ano ther CSR also test ified she discovered som e producer codes had been cha nged from Brenholtz to Ronald and when she attempted to m ake correcti ons, sh e noticed the security clearance had been cha nged. The CSRs w ere locked out o f the AMS and instru cted not to run anymore cli ent li sts. On Febru ary 13, 1997, Ro nald wrote Br enhol tz ahan dw ritten le tte r no tify ing h im thatas of F ebr uar

y 14 , hew as term inated. Ro nald beg an t he le tte r, “ I love yo u. B ut t his isn’t working. . . . I’ve instructed the staff to not allow you into the prem ises, the locks have been changed, and you are no longeran e m ployee o f th is ag enc y. (The y w ill call po lice if you sh ow u p).” The letter is sign ed, “Your friend, Ron H ettler.” Brenholtz imm ediately obtained a temporary inj unction restraining Ronald and the Agencyfrom , am ong other th ings, con tac ting any of B ren holt

z’ s c lients, d isc uss ing h is status w ith any person other than corporate officers or counsel who need to know , and informing anypers on that Ronal d and the Agency are not a ware of how to contact19

Brenholtz. The injunction also required imm ediate delivery to Brenholtz of any custom er file s, corresponden ce, or personal property. A retired insur

ance bro ker tes tified that an agen t’s bo ok of b usiness is a very valu ablecom modity. A m arket ing r epresentative who worked for t he Agency for a brief pe riod tes tifie d th at Rona ld br oug ht B ren holt

z into th e Agen cy becaus e hew ould eventuall y own his book of busine ss. One of Brenholtz’ s custom ers testified that after the term ination date, he telephoned the Agency, w here the phone was answered “H ettler-Brenholtz” and was not informed that Brenholtz wasno longer there. Robin dealt with the cus tom er and sent him a letter dated June 30, 1997, still reflecting “Hettler-Brenholtz” on the letterhead. The yellow pages of the telephone directory also carried Brenholtz’s nam e as part of th e Agency in 1997 - 1998, and as late as 1998, the corporate franchise tax return for the Agency continued to list Brenholtz as Vice President. A CSR w ho worked a t the Agency between 1995and 1997, and w ho quit on the date Brenholtz was locked out, testified that Robin told her to informan individual who had done som e m arketin g in the Agency not to do busin ess with Brenholtz. Evi dence was also presented that Brenholt z’s parents’ hom eowners policy w as canceled at Rona ld’s request and had also been coded as Ronald’s a ccount. Robin sent fa csimilies to com pa nie s20

regarding app rox im ate ly10-15 other accountsbelonging to Brenholtz with instructions to either cancel or not renew th em. Other instances of questionable conduct include: (1) Ronald reported Brenholtz to law enforcem ent for a theft claim for employee dishonest y; (2) Brenh oltz ’s m ail w

as n ot b eing for

w ard ed r egu la rly as re quired by the tem porary injunction; (3) Ronald used Agency fundsto pay his children’s country club dues and Robin’s gol f dues; (4) Ronald did not obey the injunc tion to refrain from sen ding letters to Brenholtz’s clients; and (5) Br enholtz di d not receive all of hi s files un til August 15, 1997, which madeit d iffic ult

to conduct his business; according to Brenholtz’s em ployee, the files were “m essed up.” Evidence was also prese nted that an agent needs his name in order to do business, and Ronald, Robin, and the Agency continued to carry Brenholtz’s name in some as pects of their business. The jurors w

ere the sole judges

of the credibility of the witnesses and the weight to be g iv en th ei r t es ti mony . Al so , a cco rd in g t o se ct io n 4 1. 01 0, th e a moun t o f a n a wa rd o f exe m plarydam ages was not prescribed by a form ula or objective criteria, but was to be an am ount to be determ ined w ithin the discretion of the j urors, subj ect to other provisions of the Code. Consid ering the multiple acts of qu estionabl e conduct which the j urycou ld21

have deem ed to be ma licious and harmful to Brenholtz, that the jury was properly charged per the factors, and bas ed on this cold r ecord, we do not agree that the j ury abused its discretion nor that th e am ount of th e aw ard s were exces siv e. P oint of e rro r eig ht is overruled. Accordingly, the j udgme nt of the trial court is affirmed. Don H. Rea vis Justice