REVERSE and REMAND and Opin ion Filed August 31, 2022 

# S

In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-20-00379-CV NEWSOM, TERRY & NEWSOM, LLP, AND STEVEN K. TERRY, Appellants V. HENRY S. MILLER COMMER CIAL COMPANY, Appellee On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-09-01306-G MEMORANDUM OPINION Before Justices Reichek, Nowell, and Carlyle Opinion by Justice Reichek This is the second appeal following a jury trial in this suit for legal malpractice. Newsom, Terry & Newsom, LLP and Steven K. Terry (collectively “Terry”) challenge the trial court’s judgmen t in favor of Henry S. Miller Commercial Company (“HSM”) on the basis that, (1) the evidence is legally and factually insufficient to support the jury’s findi ngs on breach of the standard of care, proximate cause, gross negligen ce, and damages, (2) the tria l court erred in refusing to submit a jury charge question on the faul t and proportionate res ponsibility of third parties, (3) the court’s judgment include s an impermissible double recovery of–2– interest, (4) the trial court erred in ad mitting unreliable expert testimony, (5) the award of exemplary damages is constitu tionally excessive, (6) the jury charge includes instructions that inappropriatel y comment on the weight of the evidence, and (7) the judgment was based on a claim that was illegally assigned in whole or in part. We conclude the assignment issue was resolved in the previous appeal, and we decline to reconsider our holding. After reviewing the record, we further conclude the evidence is sufficient to support the jury’s findings. With respect to the jury charge, however, we concl ude that one of the jury instructions constituted an impermissible comment on the weight of th e evidence that was calculated to cause, and probably did cause, the rendition of an improper judgment. Accordingly, we reverse the trial court’s judgment and remand the cause for further proceedings consistent with this opinion. Background In 2004, HSM, a real estate broker, a nd its former employee, Steven Defterios, negotiated the purchase of nine commercial real estate properties on behalf of their client, James A. Flaven. The properties were owned by various partnerships and limited liability companies formed by BarryNussbaum. Defterios told Nussbaum that Flaven was the benefi ciary of a multimillion dollar tr ust fund and he wanted to use the money to invest in real estate. Flaven eventu ally put $500,000 in an escrow account and signed contracts to purchase th e properties with an initial closing date of August 2004.–3– The closing date was rescheduled multiple times, and Defterios told Nussbaum it appeared there were problems getting Flaven’s trust to release the money. According to Nussb aum, Defterios stated on many occasions that he had verified the existence of th e funds and the closings were imminent. Over a year later, however, when the contracts still ha d not closed, Flaven disappeared. The properties at issue were either deeded to banks in lieu of foreclosure or sold for a loss. The companies that owned the propertie s sued HSM and Defterios for fraud and negligent misrepresentation (the “Unde rlying Suit”). Terry served as trial counsel for both defendants. Despite kno wing from the beginning that Flaven could be held at least partly responsible for th e property owners’ damage s, Terry stated he actively chose not to pursue finding Flaven or involving him in the case because he suspected Flaven was a con man and he di d not want to help the property owners develop facts showing that Defterios had lie d. Shortly before trial, the property owners located Flaven’s brot her who revealed that Flavenwas a truck driver and not the beneficiary of a trust fund. Flav en himself was never found. After Flaven’s brother was deposed, Terryattempted to designate Flaven as a responsible third party (“RTP”). The moti on to designate was filed twenty-four days before trial and asserted that Flaven wa s responsible for all or, alternatively, a proportionate part of the damages suffe red by the property owners. The property owners objected that the motion to designa te Flaven was untim ely and Terry had no–4– valid reason for not designating him earlier. They further objected that HSM and Defterios had not pleaded sufficient facts to show a duty owed by Flaven to the property owners. The trial court denied the motion to designate Flaven without stating the reason for its ruling. The Underlying Suit was tried to a jury. During the course of trial, Defterios admitted he never verified Flaven had th e money necessary to fund the purchases. At the close of evid ence, Terry stipulated Defterio s was acting within his agency relationship with HSM and that any findings against him would be binding on HSM. Terry stated the reason for the stipulation was that, although there was evidence showing Defterios was an independent cont ractor, HSM allowed Defterios to use the title of HSM vice-president on his email account, letterhead, a nd business cards. Based on a statutory provision that stated real estate br okers are responsible for the conduct of their salespersons, Terry be lieved HSM could not avoid liability for Defterios’s conduct, and he did not want th e property owners to be able to argue Defterios’s title was another fraudulen t misrepresentation. The jury ultimately found against HS M and Defterios and awarded the property owners over $12 million in damages. The tr ial court rendered judgment on the verdict and added prejudgment interest and costs to the final award. On appeal, this Court modified the judgment in mi nor respects, but otherwise affirmed. See Defterios v. Bayou Bend, Ltd. , 350 S.W.3d 659 (Tex. A pp.—Dallas 2011, pet. denied).–5– Following the verdict, HSM and Deft erios filed this suit against Terry for malpractice. The allegati ons of negligence included that Terry failed to timely designate Flaven as an RT P and erred in stipulati ng HSM was responsible for Defterios’s conduct. 1 Diamond State Insurance Comp any, HSM’s insurance carrier, was also named as a defendant after it denied cove rage for the judgment. The judgment creditors in the Underlying Suit filed an involuntary petition in bankruptcy against HSM which resulted in a reorganization plan approve d by the bankruptcy court in July 2010. Under the plan, a portion of HSM’s claims against Terry and Diamond State was assigned to the judgment creditors. HSM eventually settled with Diamond St ate before trial for $6 million. As a result, all of HSM’s and Defterios’s clai ms against Diamond State were nonsuited. Immediately before trial, Defterios also nonsuited his claims against Terry and was no longer a party to the suit. The case proceeded to trial solely on HSM’s malpractice claims against Terry. After hearing the evidence, the trial court directed a verdict in favor of Terry on HSM’s claims for gross ne gligence. The jury then found that the combined negligence of Terry, HSM, a nd Defterios was the proximate cause of HSM’s injury. The jury apportioned responsibility as 50% to Terry, 40% to Deft erios, and 10% to HSM. The jury further found that the amount by which the judgment rendered in

1 HSM additionally asserted that Terry was neglig ent in failing to offer expert testimony as to damages and in failing to advise HSM of the potential conflict of interest between it and Defterios.–6– the Underlying Suit exceeded the judgment that would have been rendered but for Terry’s negligence was $4,636,088. In the j udgment, the trial court disregarded the jury’s findings regarding Defterios, appl ied the 10% responsibility found by the jury as to HSM, and concluded the $6 mi llion credit from HSM’s settlement with Diamond State exceeded the amount of HSM’s recoverable damages. Accordingly, the trial court rendered judgment that HSM take nothing on its claims against Terry. HSM appealed the judgment to this Court. See Henry S. Miller Commercial Co. v. Newsom, Terry & Newsom, L.L.P. , No. 05-14-01188-C V, 2016 WL 4821684 (Tex. App.—Dallas Sept. 14, 2016, pet. denied) (mem. op.) (“HSM I ”). Terry filed a cross appeal asserting, am ong other things, that the assignment of a part of HSM’s malpractice claims to its judgment creditors was illegal and barred any recovery. Id

. at *2. We concluded that HSM’s right to bring its own cause of action for malpractice was not affected by the assignmen t and resolved the issue against Terry. Id . at *3. In addressing HSM’s appeal, we conclude d the trial court properly directed a verdict in favor of Terry on HSM’s claim for gross negligence arising out of his stipulation that HSM was respons ible for Defterios’s conduct. Id . at *5. We further held, however, that the trial court erred in directing a verdict for Terry on HSM’s claim for gross negligence arising out of Terry’s failure to timely designate Flaven
as an RTP. Id . at *7. We reasoned that Terry could have designated Flaven earlier based solely on “the proposed transaction, its failure, and Flaven’s identity as the–7– defaulting buyer” without conc eding that Flaven was a fraud or that Defterios had misrepresented Flaven’s wealth. Id . at *6. There was a dditional evidence showing Terry was aware of the extreme risks associ ated with not designating Flaven and that he chose not to do so despite those risks. Id . We recognized that Terry presented expert testimony supporting his concerns thatdesignating Flaven earlier could have helped the property owners prove their case, and that his de cision to wait to designate Flaven until after Flaven’s brothe r was deposed was justified. Id . at *7. But we concluded “the existence of controverting evidence is not the standard for determining whether a direct ed verdict was proper.” Id . We therefore reversed the trial court’s judgment and remanded the case for a new trial on both liability and damages. Id . at *8. On remand, HSM’s malpractice claims against Terry were, once again, tried to a jury. In support of their allegations of negligence, HSM presented the testimony of Marc Stanley, counsel for the property owners in the Underl ying Suit, and Lewis Sifford, HSM’s legal expert. Stanley tes tified that Terry’s fa ilure to designate Flaven as an RTP was a “bre ak” for him in representing th e property owners because he was afraid a jury would put most, if not all of the blame for the failed transactions on Flaven from whom the property owners w ould not be able to collect damages. He felt that Flaven would be seen as the “lead bad guy” who conned everyone, including HSM and Defterios. Stanley stated that all of his clients’ damages were ultimately caused by Flaven because of his fa ilure to close on the purchase contracts.–8– Stanley acknowledged he needed proof that Flaven was a fraud to succeed on his claims against HSM and he stated the depo sition of Flaven’s brother provided him with that proof. Sifford testified similarly. He statedthat a reasonably pr udent lawyer would have designated Flaven as an RTP earlier in the case because it was a “major avenue of defense.” He pointed to the fact that Terry identified Flaven as a responsible third party early in discovery and, in an email to Diamond State ten months before trial, Terry characterized Flaven as “the principal actor in the claim.” Sifford stated that juries tend to look for the “bad actor” inthe case when determining fault. Here, Flaven was the initiator of all the bad acts and the reason the purchases did not close. Regardless of whether it was discovered that Flaven had no money, Sifford testified Terry could have placed the blame on Fl aven for the property owners’ damages based solely on the fact that he breached the purchase contracts. Sifford stated Terry was negligent in not giving the jury the opportunity to apportion at least some of the liability for the property owners’ damages to Flaven. Sifford noted that, in the untimely motion to designate Flaven, Terry stated Flaven could be found responsible for all of the pr operty owners’ damages. Terry made the same argument about Flaven’s responsibility to the jury in his closing argument in the Underlying Suit. Given that there wa s no dispute that Flaven was a con man, and there was no evidence that HSM wa s aware of Flaven’s fraud before he–9– disappeared, Sifford testified that a jury w ould likely have placed all of the liability on Flaven if he had been prope rly designated. In contrast, Terry and his legal expert, Rogge Dunn, te stified there were valid reasons for not designating Flaven as an RT P sooner. Terry testified that if he had designated Flaven earlier in the case, they would have needed to pursue discovery to support the designation. Terry did not want to give the property owners evidence to show that Flaven did not have the mone y he claimed to have. According to Terry, this evidence would have simply helped the property owners prove that Defterios lied when he said he had verified the existe nce of Flaven’s funds. It was Defterios’s misrepresentation that formed the entire basis of the property owners’ claims. Dunn agreed with Terry, stating that, HS M’s best defense was that there was no evidence Defterios lied and, without Flav en in the case, there was no proof he was not the beneficiary of a large trust fund. He stated it was likely a jury would have believed the money ex isted based on Flaven’s ability to make a $500,000 earnest money deposit. The fact that Fl aven simply walked away from the deal would not, by itself, show that anyone co mmitted fraud. In Dunn’s opinion, it was not until Flaven’s brother testified Flaven di d not have the money he claimed to have that the purpose in not designating Flaven was removed. The charge submitted to the jury cont ained the following instruction on the designation of RTPs:–10– With respect to the designation of responsible third parties, the relevant portions of Sec tion 33.004 of the Texas Civil Practice and Remedies Code provide as follows: (a) A defendant may seek to designate a person as a responsible third party by filing a motion for leave to designate that person as a responsible thir d party. The motion must be filed on or before the 60th day before the trial date unless the court finds good cause to allow the moti on to be filed ata later date.
* * * (f) A court shall grant leave to designate the named person as a responsible third party unle ss another party files an objection to the motion for leave on or befo re the 15th day after the date the motion is served. (g) If an objection to the motion for leave is timely filed, the court shall grant leave to desi gnate the person as a responsible third party unless the objecting party establishes: (1) the defendant did not plead sufficient facts concerning the alleged responsibility of the person to satisfy the pleading requirement of the Texas Ru les of Civil Procedure; and (2) after having been granted leave to replead, the defendant failed to plead suffici ent facts concerning the alleged responsibility of the person to satisfy the pleading requirements of the Texas Rules of Civil Procedure.
* * * (1) After adequate time for discovery, a party may move to strike the designation of a responsible third party on the ground that there is no evidence that the designated person is responsible for any portion of the claimant’s alleged injury or damage. The court shall grant the motion to strike unless a defendant produces sufficient ev idence to raise a genuine issue of fact regarding the designate d person’s responsibility for the claimant's injury or damage. Under this statute, a defendant is not required to provide evidence at the time of the f iling of a motion for leave to designate a responsible third pa rty, but the designation may be struck, by the Court, for lack of evidence after an adequate time for discovery has passed.–11– The designation of a responsible third party may be struck for lack of evidence after an adequate time fo r discovery has passed, as determined by the court. In resisting a motion to strike a designation of a responsible th ird party, the Terry Defendants would not have been required to prove the plaintiffs’ case that there was fraud in the underlying tr ansaction. They could rely on evidence of the proposed transacti on, its failure, and the identity of a responsible third party as the defaulting buyer in resisting a motion to strike a designation of a responsible third party. Terry objected to the last two paragra phs of the RTP instruction contending that, to the extent they merely repeated the statute, the repetition “constituted an impermissible comment by the Court on th e weight of the evidence by drawing particular attention to sections of the statute that are already stated verbatim.” As for the last two sentences of the instructio n, the lawyers objected that “to the extent that Plaintiff relies on [ HSM I ], that authority is irrelevant and was unavailable to Defendants at the time of the underlying trial, and does not save the added two paragraphs from being redundant, incorrect , an improper comment on the weight of the evidence, and unduly prejudicial.” The trial court overruledTerry’s objections. Unlike the charge in the first malpractice trial, the charge submitted to the jury in the second trial included only questi ons regarding Terry’s liability for HSM’s damages. Question No. 1 asked, Did the negligence, if any, of the Terry Defendants proximately cause the injury complained of by He nry S. Miller in this lawsuit? The jury answered, “Yes.” Question No. 2 asked,–12– What is the amount, if any, by which the judgment actually rendered in the Underlying lawsuit exceeded the judgment that would have been rendered but for the neg ligence you have found on the part of the Terry Defendants? The jury answered, “$13,626,997.” Question No. 3 asked, Do you find by clear and convincing evidence that the harm to Henry S. Miller resulted from gross negligence by the Terry Defendants in not timely seeking to designate James Flaven a responsible third party? The jury answered, “Yes.” And, finally, Question No. 4 asked, What sums of money, if any, should be assessed against the Terry Defendants and awarded to Henry S. Miller as exemplary damages for the conduct found in response to Question No. 1? In response to Question No. 4, the jury found Steven Terry liable for $6 million in exemplary damages and Newsom , Terry & Newsom, L.L.P. liable for $1 million in exemplary damages. The issue of attorney’s fees damage s arising from the property owners’ postjudgment collection efforts and the ba nkruptcy proceedings against HSM was presented to the trial court for resolution. The court signed a final judgment awarding HSM “$15,395,910.20 (representi ng $14,303,316.50 in actual damages, plus prejudgment interest of $3,444,575.25 , both having been a ppropriately reduced by a settlement credit of $6,000,000), plus a dditional prejudgment interest at the rate of $1,635.60 per day from Dece mber 20, 2019, until the da y before this judgment–13– was signed, [] $6,000,000 in exemplary dama ges against Defendant Steven K. Terry, and [] $1,000,000 in exempl ary damages against Defe ndant Newsom, Terry & Newsom.” Terry timely brought this appeal. Analysis I. Illegality of Assignment In his ninth issue, Terry contends th e trial court erred in signing a judgment on the malpractice claim becau se the claim was illegally assigned to the judgment creditors in the Underlying Suit. In hi s briefing, Terry ac knowledges this Court resolved this issue against him in our previous opinion in this case. See id . at *3. Terry states he has briefed the assignment issue “to provide the Court the opportunity to reconsider its holding in HSM I .” We decline to do so. Accordingly, we overrule Terry’s ninth issue. II. Sufficiency of the Evidence In his second, third, and sixth issues , Terry contends the evidence presented at trial was legally and factually insuffi cient to support the jury’s findings on (1) breach of the standard of care, (2) proximate cause, and (3) gross negligence. 2 In reviewing a legal sufficiency challenge to the evidence, we credit evidence that supports the verdict if a reasonable fact finder could have done so and disregard

2 Terry also challenges the sufficiency of the evidence supporting the amount of damages awarded by the jury. For the reasons discussed in section III below, it is unnecessary for us to address the sufficiency of the evidence supporting either the amount of damages or HSM’s claims of negligence other than Terry’s failure to timely designate Flaven as an RTP.–14– contrary evidence unless a reasonable factfinder could not have done so. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 115 (Tex. 2009); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We consider all the evidence in the light most favorable to the prevailing party and indulge every reasonable inference in that party’s favor. St. Joseph Hosp. v. Wolff , 94 S.W.3d 513, 520–21 (Tex. 2003). The evidence is legally sufficient if “more than a scintilla of evidence exists.” Browning–Ferris, Inc. v. Reyna , 865 S.W.2d 925, 928 (Tex. 1993). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclu sions by reasonable minds about a vital fact’s existence. Litton Loan Servicing, L.P. v. Manning , 366 S.W.3d 837, 840 (Tex. App.—Dallas 2012, pet. denied). The final test for legal sufficiency must always be whether the evidence at trial would enab le reasonable and fair-minded people to reach the verdict under review. Del Lago Partners, Inc. v. Smith , 307 S.W.3d 762, 770 (Tex. 2010). To evaluate a factual sufficiency cha llenge, we consider and weigh all the evidence. Dow Chem. Co. v. Francis , 46 S.W.3d 237, 242 (Tex. 2001) (per curiam). We can set aside a verdict only if the eviden ce is so weak or the finding is so against the great weight and prepond erance of the evidence th at it is clearly wrong and unjust. Id . We must not substitute our judgment for that of the factfinder and should remain cognizant that the factfinder is th e sole judge of witness credibility. Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 761 (Tex. 2003).–15– “When a legal malpractice case arises fro m prior litigation, the plaintiff must prove that the client would have obtained a more favorab le result in the underlying litigation had the attorney conformed to the proper standard of care.” Rogers v.
Zanetti , 518 S.W.3d 394, 401 (Tex. 2017). The proper standa rd of care is whether the decision made by the attorney was an ob jective exercise of professional judgment that a reasonably prudent attorney could make in the same or similar circumstances, not whether the attorney subjectively be lieved his acts were done in good faith. Cosgrove v. Grimes , 774 S.W.2d 662, 665 (Tex. 1989). The failure to meet the proper standard of care may include an atto rney’s failure to exercise ordinary care in preparing, managing, a nd presenting litigation. Alexander v. Turtur & Assocs.,
Inc. , 146 S.W.3d 113, 119 (Tex. 2004). Expert testimony is required to show that tactical choices were unwise and th e consequences of those choices. Id . at 119–20. Imprudent attorney actions th at materially and unfavorably affect a client’s defense will support a malpractice claim. Rogers , 518 S.W.3d at 404. In this case, the evidence showed it was apparent early in the Underlying Suit that Flaven could be found at least partially, if not entirely, responsible for the damages suffered by the property owners. Terry disclo sed Flaven as a potential RTP more than a year before trial, but chose not to designate him until after the deadline had passed. Without Flaven submitted to th e jury as a potentially responsible party in the charge, there was no way for HSM to reduce its proportionate liability in the Underlying Suit. See HSM I , 2016 WL 4821684, at *5.–16– Terry argues that HSM’s assertion th at he could have designated Flaven earlier is purely speculative. He points to the fact that the trial court did not state its reasoning when it denied Terry’s motion to de signate Flaven. But, as we noted in
HSM I , the trial court has little discreti on regarding a timely-filed motion to designate an RTP. Id . The only two grounds assertedby the property owners in their objection to the designation were un timeliness and a lack of support in the pleadings. Had Terry designated Flaven ear lier in the case, he would have had an opportunity to cure any deficiencies in the pleadings. Terry next argues that “in his judgment , designating Flaven earlier would have harmed HSM’s defense” because he was “c oncerned that, had Flaven been found, he would have helped prove [the property owner’s] case that Defterios was lying about Flaven’s financial resources.” Wh ile Terry may have believed his actions were in HSM’s best interests, the jury wa s free to accept the evidence presented by HSM that Terry’s decision to not designate Flaven earlier was negligent. This is particularly true since it wa s not necessary for Terry to find Flaven to designate him
as an RTP. See id . at *6 (“Neither was it necessary to serve Flaven, join him in the lawsuit, or even determine his whereabouts in order to designate him as a responsible third party.”). Flaven’s pr oportionate liability could have been established through the contracts he signed and his failure to close. Finally, Terry argues there is insufficie nt evidence to show that his actions were the proximate cause of a ny damages. He contends th at if the jury would have–17– found Flaven liable for all the property ow ner’s damages, as HSM contends, then “logic dictates” the jury would have found no negligence on the part of HSM regardless of whether Flaven was listed in th e charge. But failing to name Flaven as a responsible third party necessarily skewedthe proceedings and shifted the focus to
HSM. See In re Greyhound Lines, Inc. , No. 05-13-01646-CV, 2014 WL 1022329, at *4 (Tex. App.—Dallas Feb. 21, 2014, orig . proceeding) (mem. op.). The jury was presented with evidence of significant da mages suffered by the property owners. And with Flaven not listed in the charge as a potentially responsible person, the jury could easily have decided to place the blame on HSM and Defterios as Flaven’s brokers in the transaction, rather than ha ve the property owners recover nothing. Terry’s decision, therefore, materially a nd unfavorably affected HSM’s defense. See Rogers , 518 S.W.3d at 404. Terry also argues there is no evidence th e jury would have found Flaven more than 50% responsible in the Underlying Su it. Thus, Terry contends there is no evidence that, but for his alleged negligen ce, HSM would not have been jointly and severally liable for the entire amount of the judgment under s ection 33.013(b)(1) of the Texas Civil Practice and Remedies Code . Terry does not explain why joint and several liability is not materially better th an sole liability. Additionally, Terry does not address the fact that, in both his mo tion to designate Flaven and his closing argument to the jury in the Underlying Su it, Terry contended Flaven was responsible for most, if not all, of the property ow ners’ damages. HS M presented expert–18– testimony that juries tend to look for the “bad actor” when assigning liability. Given that Flaven was the reason the deals were made, the source of th e alleged fraud, and the only person responsible for breachi ng the purchase contracts, we cannot conclude the evidence is insufficient to show that a jury would likely have found Flaven more than 50% liable for the property owners’ damages. With respect to the evidence of gross negligence, we previ ously held based on a substantially similar record that the ev idence was legally sufficient to support a finding that Terry was grossly negligent. See HSM I , 2016 WL 4821684, at *7. After reviewing the record befo re us in this appeal, we conclude once again that the evidence is legally sufficient, and further conclude the jury’s finding that Terry was grossly negligent is not so against th e great weight and preponderance of the evidence as to be clearly wrong and unjust. The record shows Terry was aware early in the case that HSM was facing significan t exposure, yet he c onsciously chose not to designate a party he knew could bear a substantial portion of the responsibility. While Terry argues that gross negligence can never be based on an error in judgment, an attorney’s tactical decisions must be objectively reasonable. Cosgrove , 774 S.W.2d at 665. HSM presented evidence th at no reasonably prudent attorney would have waited until after the deadline had passe d to designate Flaven as an RTP given the extreme risk that HSM could be f ound solely liable for the property owner’s damages.–19– In the alternative, Terry argues the a llegedly negligent acts on which this suit was based were all committed by him alone and there is no evidence to support the jury’s finding of gross negligence against his law firm. Terry cites no authority in support of this argument. It is undisputed that, at all releva nt times, Terry was a partner of Newsom, Terry & Ne wsom, LLP. A firm practic ing as a limited liability partnership is liable for the malpractice of its partners. See David v. Howeth , No. 02-20-00078-CV, 2020 WL 616529 8, at *12 n.6 (Tex. App. —Fort Worth Oct. 22, 2020, pet. denied) (mem. op.). Based on the foregoing, we conclude th e evidence is legally and factually sufficient to support the jury’s findings as to breach of duty, proximate cause, and gross negligence. III. Jury Instruction on RTP Designation Although the evidence is sufficient to s upport the jury’s findings, we conclude the judgment must be reversed because the jury charge included an instruction that improperly suggested how the jury should re solve the issues of Terry’s negligence and gross negligence. Terry challenges the propriety of several portions of the charge in his eighth issue. Our analysis focuses on the last two sentences of the RTP instruction which read, In resisting a motion to strike a designation of a responsible third party, the Terry Defendants woul d not have been required to prove the plaintiffs’ case that there was fraud in the underlying transaction. They could rely on evidence of the proposed transaction, its failure, and the identity of a responsible third–20– party as the defaulting buyer in resisting a motion to strike a designation of a responsible third party. This portion of the instruction pu lls language from our opinion in HSM I and imports it into the jury charge out of contex t. The original context was a discussion of whether there was sufficient evidence to support a finding that Terry was grossly negligent. See HSM I , 2016 WL 4821684, at *7. In concluding there was, we stated that Terry could have designa ted Flaven as an RTP ear lier based on “the proposed transaction, its failure, and Flaven’s identity as the defaulting buyer.” Id . But we also observed there was evidence, includi ng expert testimony, showing that a reasonably prudent lawyer would have waited until after Flaven’s brother was deposed, and Flaven’s fraud was re vealed, to designate Flaven. Id . We concluded that, while the jury could have credited th is testimony and found in favor of Terry, the existence of controverting evidence was not the standard for granting a directed verdict. Id . The conflicting evidence required the issue to be submitted to the jury. Id

. By instructing the jury that Terry w ould not have been required to “prove the plaintiffs’ case” to designate Flaven as an RTP, the charge sugges ted, if not overtly instructed the jury, that Terry’s reasoni ng for not designating Flaven earlier in the case was flawed. The charge made HSM’s th eory of negligence the law of the case. A trial court’s charge may not comment on the evidence or the weight of the evidence in any manner. See T EX

. R. C IV

. P. 277. An impermissible comment on the weight of the evidence occurs when, after examin ing the entire charge, it is–21– determined that the judge assumed the trut h of a material controverted fact or exaggerated, minimized, or withdrew so me pertinent evidence from the jury’s consideration. Am. Bankers Ins. Co. v. Caruth, 786 S.W.2d 427, 434 (Tex. App.— Dallas 1990, no writ). An instruction also will be held to be an improper comment on the weight of the evidence if it suggests to the jury the court’s opinion concerning the matter about which the jury is asked. Ferguson v. DRG/Colony N., Ltd., 764 S.W.2d 874, 886 (Tex. App.—Aus tin 1989, writ denied). Instructing the jury on an issue that has previously b een decided as a matter of la w may constitute an unlawful comment on the weight of th e evidence where the inst ruction was unnecessary to clarify the issues still to be decided by the jury. Mader v. Aetna Cas. & Sur. Co. , 683 S.W.2d 731, 733 (Tex. App.—Corpus Ch risti–Edinburg 1984, no writ). The first portion of the RTP instructi on sets forth the relevant provisions of section 33.004 of the civil practice and remedies code. This gave the jury all the law it needed on the requirements for designati ng responsible third parties and the level of proof necessary to resist a motion to strike. Including our discussion of the gross negligence evidence from HSM I added no clarity to the law to be applied, but rather served only to suggest that the ju ry should find Terry negligent. See In re Commitment of Shelton , No. 02-19-00033-CV, 2020 WL 1887722, at *12 n.7 (Tex. App.—Fort Worth April 16, 2020, no pet.) (m em. op. on reh’g) (instructions in jury charge should not advise jury that a fact issue has been conclusively established since instruction might unduly influence ju ry’s answers about other facts in the–22– case); see also Bd. of Regents of N. Tex. State Univ. v. Denton Const. Co. , 652 S.W.2d 588, 594–95 (Tex. App.—Fort Worth 1983, writ ref’d n. r.e.) (instruction that tended to imply court thought law and facts were with appe llee was erroneously prejudicial). A statement of law that en courages the jury to resolve a question a certain way, even if it is a correct statemen t of law, should not be in the jury charge. GTE Mobilnet v. Telecell Cellular , 955 S.W.2d 286, 292 (Tex. App.—Houston [1st Dist.] 1997, pet. denied). The issue of Terry’s tactical choices was a hotly contested issue at trial. An improper instruction is especially likely to cause an unfair trial when the evidence is sharply conflicting. Halmos v. Bombardier Aerospace Corp. , 314 S.W.3d 606, 617– 618 (Tex. App.—Dallas 2010, no pet.). The reasoning be hind Terry’s decision to not designate Flaven as an RTP earlier was the subject of extensive testimony, including expert testimony fromboth sides. Trial tactics is the type of issue that requires expert testimony. See Childs v. Crutchfield , No. 09-07-065 CV, 2007 WL 5075982, at *6 (Tex. App.—Beaumont Sept. 13, 2008, pet. denied) (mem. op.). As such, any suggestion by the court that Terry should have made a different decision would likely sway a jury. By expanding the RTP instruction to specifically state what Terry could have done, the trial court necessarily implied what it believed Terry should have done. Reversal is required if an improper comm ent on the weight of the evidence is one that was calculated to cause and probably did cause the rendition of an improper–23– judgment. Redwine v. AAA Ins. , 852 S.W.2d 10, 14 (Tex . App.—Dallas 1993, no writ). In his closing argument at trial, HS M’s counsel spent a great deal of time on the RTP issue. On multiple occasions, he us ed the language in the charge to dispute Terry’s testimony regarding his choice of tactics in the Underlying Suit saying: Well, you guys are going to look in the charge. The charge literally says the fact that you can identify the person who is responsible for closing and he didn’ t close is sufficient to file the responsible third-party. It’s in the charge. You guys will look at it. Why did I ask all my questions ? Because I knew that was going in the charge, right?

. . . And what he’s going to tell you is he had to wait until he got Brian Flaven’s deposition to prove Flaven was a con man. And that - - you’re going to look at th e charge, that is simply flat wrong. It’s just wrong. He did not have to wait until he got Brian Flaven’s deposition. Because of the inclusion of the language fro m our prior opinion in the jury charge, HSM’s counsel was able to argue the char ge would instruct them that Terry’s strategy, and his defense to the negligen ce claim on the RTP issue, was invalid. In addition to counsel’s argument, the wording of the jury questions made the RTP issue the sole focus of the charge. Although Question No. 1 asked the jury about Terry’s negligence generally, Ques tion No. 3 asked whether “the harm” to HSM resulted from Terry’s gross negligence in failing to timely designate Flaven as an RTP. By using the phrase “the harm,” the question asked whether all the harm suffered by HSM was caused by Terry’s un timely attempt to designate Flaven.–24– Question No. 4 then asked the jury to de termine what amount of exemplary damages should be assessed for the c onduct found in response to Question No.1 . Because a plaintiff can only recover exemplary damage s for gross negligence, and the only act of negligence that was asserted as being grossly negligent was the failure to timely designate Flaven, the charge necessarily presumed the untimely RTP designation was the basis of the general negligence findi ng in Question No. 1. Accordingly, the improper RTP instruction impacted all of the jury’s responses and likely caused the rendition of an improper judgment. We sustain Terry’s eighth issue. We are cognizant of the fact that reversal in this ca se may require the parties to engage in a third trial on the merits. This result is compelled, however, by the trial court’s submission of a jury charge th at was patently unfair to the defendants. Based on the foregoing, it is unnecessary for us to address the remainder of Terry’s issues. We reverse the trial court’s judgme nt in its entirety and remand the cause for further proceedings consiste nt with this opinion.

Carlyle, J., dissenting.

200379F.P05 /Amanda L. Reichek / AMANDA L. REICHEK JUSTICE–25– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT
NEWSOM, TERRY & NEWSOM, LLP AND STEVEN K. TERRY, Appellants

No. 05-20-00379-CV V.

HENRY S. MILLER COMMERCIAL COMPANY, Appellee On Appeal from the 134th Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-09-01306- G. Opinion delivered by Justice Reichek. Justices Nowell and Carlyle participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion. It is ORDERED that each party bear its own costs of this appeal.
Judgment entered August 31, 2022