Opinion
NO. 14-18-01085-CV
11-24-2020
GENERAL GROWTH PROPERTIES, INC., General Growth Services, Inc., General Growth Management, Inc., Baybrook Mall, LP, GGP–Deerbrook, LP, Deerbrook Anchor Acquisition, LP, First Colony Mall, LLC, GGP–Willowbrook, LP, Willowbrook Mall Anchor Acquisition (TX), LLC, Baybrook Mall, LLC, Willowbrook Mall (TX), LLC, and Deerbrook Mall, LLC, Appellants v. PROPERTY TAX MANAGEMENT, INC., Appellee
David Medina, Houston, Garland Grady, The Woodlands, for Appellants. Sholeh Abedinzadeh, Nicholas Martinez, Craig Welscher, Houston, for Appellee.
David Medina, Houston, Garland Grady, The Woodlands, for Appellants.
Sholeh Abedinzadeh, Nicholas Martinez, Craig Welscher, Houston, for Appellee.
Panel consists of Justices Christopher, Wise, and Zimmerer.
Tracy Christopher, Justice
In this breach-of-contract case, a property-tax consulting firm successfully sued the properties' owners for breach of contract. We conclude that there is legally and factually sufficient evidence to support the jury's findings that the defendants breached two written contracts, one of which had been orally modified, and that the breach damaged the property-tax consulting firm; however, the evidence is legally and factually sufficient to support only a portion of the damages awarded. We therefore reverse the judgment and remand for a new trial, subject to our suggestion of remittitur.
I. BACKGROUND
Either directly or through its affiliated companies, General Growth Properties, Inc., owns four shopping malls in the Houston area. Through its in-house Tax Services Department, General Growth hired the tax-consulting service Property Tax Management, Inc. ("PTM"), to assist in reducing the property taxes on the malls. Under the parties' written contingent-fee contracts, General Growth agreed to pay PTM 20% of the "Tax Savings" it obtained through administrative proceedings before the appraisal review board. The parties defined "Tax Savings" in the contracts as the difference between the appraisal district's proposed valuation of the property and the property's final taxable value as determined at the administrative level, multiplied by the tax rate.
In referring to "General Growth," we include its affiliated co-defendants General Growth Services, Inc., General Growth Management, Inc., Baybrook Mall, LP, GGP–Deerbrook, LP, Deerbrook Anchor Acquisition, LP, First Colony Mall, LLC, GGP–Willowbrook, LP, Willowbrook Mall Anchor Acquisition (TX), LLC, Baybrook Mall, LLC, Willowbrook Mall (TX), LLC, and Deerbrook Mall, LLC.
There were slight differences in the contracts. According to PTM, General Growth and PTM orally modified the 2011 and 2013 written contracts so that, in addition to being paid 20% of the Tax Savings obtained at the administrative level, PTM also would be paid 20% of any further Tax Savings obtained through litigation. Unlike the 2011 contract, the 2013 and 2014 written contracts provided that General Growth contracted with PTM on an exclusive basis. Finally, the 2014 written contract provided that PTM would be paid 20% of the Tax Savings obtained at the administrative level and through litigation, but the fee obtained for Tax Savings at the administrative level would be capped at $100,000.00.
After executing the contract for the 2014 tax year, General Growth eliminated its Tax Services Department and outsourced the department's work to Equity Property Tax Group. When PTM asked where to send the invoice for its 2013 litigation services, Equity told PTM to send it to Equity, who would see that it was processed. PTM forwarded the invoice for $64,543.92, but General Growth did not pay it.
Equity eventually informed PTM that General Growth would not honor its 2013 and 2014 contingent-fee contracts with PTM but would consider employing PTM on an hourly basis. By this time, PTM, through its independent contractor Stacey Lemoine, had already prepared the "workups" of the malls' values to be used to protest General Growth's 2014 property taxes, and PTM maintained its right to be paid according to the contract in place. General Growth refused. Equity protested General Growth's 2014 property taxes, obtaining reductions of more than $14 million in the assessed value of the malls.
PTM sued General Growth and its affiliates, and the case was tried to a jury. PTM had designated Lemoine as an expert witness on the lost profits it sustained from General Growth's breach of contract, and before opening arguments, PTM sought to preadmit a document containing Lemoine's estimates of PTM's damages. The trial court ruled that the document could be used as a demonstrative aid but would not be admitted into evidence. Later that day, the trial court sustained General Growth's objections to Lemoine testifying as an expert. Before the trial resumed the next day, PTM's counsel altered the demonstrative exhibit, not only redacting information about a claim the trial court had excluded, but also changing the exhibit to reflect the $100,000.00 administrative-level damages cap in the 2014 contract to which PTM's co-owner Jill Brown had testified.
When the trial resumed, General Growth called Karl Van Hook as an expert witness to testify as to PTM's lost profits. Van Hook did not offer his own calculations. Instead, and over General Growth's objections, Van Hook viewed the new demonstrative exhibit containing Lemoine's opinion, as amended by PTM's counsel, and attempted to explain it. From Van Hook's testimony, the document seems to have had columns labeled "Initial Value," "Value Requested," "Estimated Settlement," "Value Reduction," "Tax Rate," "Estimated Final Savings," and "Contingency Fee." Although the extent of General Growth's actual Tax Savings were known, the estimated settlement values in the demonstrative exhibit were lower, seeming to reflect a greater Taxing Savings to General Growth, and thus, a higher fee for PTM. Van Hook admitted that he had seen neither seen the written contracts between PTM and General Growth nor Equity's 2014 "workups" on which General Growth's actual Tax Savings were based. He also stated that he made a correction to the document, in which Lemoine estimated PTM's lost profits for 2013 at $755,876.56 and its lost profits for 2014 at $876,389.53.
The correction was not identified.
The jury found that General Growth contracted for PTM's litigation services in 2013 and breached both the 2013 orally modified contract and the 2014 written contract. The jury assessed damages of $175,560.00 for breach of the 2013 contract and $254,000.00 for breach of the 2014 contract. In answer to PTM's alternate quantum meruit theory of liability as to tax year 2013, the jury found that the value of PTM's work for that tax year was $64,543.92—that is, the amount invoiced.
PTM elected to recover on its contract claims, and the trial court included in the judgment the attorney's fees assessed by the jury. The trial court denied General Growth's motion for judgment notwithstanding the verdict and allowed its motion for new trial to be overruled by operation of law.
II. STANDARDS OF REVIEW
On appeal, General Growth presents nineteen issues challenging the legal and factual sufficiency of the evidence to support the jury's liability findings as to both the 2013 and the 2014 contracts and its assessment of damages.
We determine if legally sufficient evidence supports a finding by "view[ing] the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." City of Keller v. Wilson , 168 S.W.3d 802, 807 (Tex. 2005). Evidence of a vital fact's existence is legally insufficient if (a) no evidence in the record supports it, (b) rules of law or of evidence bar the court from giving weight to the only evidence offered to prove it, (c) there is no more than a scintilla of supporting evidence, or (d) the evidence conclusively establishes the converse. See id. at 810.
When reviewing for factual sufficiency, we consider and weigh all of the pertinent evidence, and we will set the finding aside only if "the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered." Crosstex N. Tex. Pipeline, L.P. v. Gardiner , 505 S.W.3d 580, 615 (Tex. 2016). Whether reviewing the evidence for legal or for factual sufficiency, we defer to the jury's reasonable credibility determinations. See, e.g., Wilson , 168 S.W.3d at 820 ; Sw. Bell Tel. Co. v. Garza , 164 S.W.3d 607, 625 (Tex. 2004) ; Yetiv v. Comm'n for Lawyer Discipline , No. 14-17-00666-CV, 2019 WL 1186822, at *5 (Tex. App.—Houston [14th Dist.] Mar. 14, 2019, no pet.) (mem. op.).
III. BREACH OF THE 2013 CONTRACT
It is undisputed that the 2013 written contract provided for PTM to render property-tax consulting services through the point at which the appraisal review board ruled on the tax protest. The contract also contained the following language:
This Agreement does not provide for continuation of the protest beyond administrative hearings into judicial appeals (whether initiated by Client or the Appraisal District) of the Appraisal Review Board's (ARB) order determining property value. Should both Client and Consultant agree that further appeals by Client (or defense services on behalf of Client) are necessary; a written contract addendum will be executed to provide for the management of those services and fees.
Emphasis in original.
PTM drafted an addendum for litigation services and emailed it to Michael Kolling, who was then General Growth's vice president of tax services. Kolling did not sign the addendum; however, Kolling testified that the parties did have an oral agreement.
Kolling, on behalf of General Growth, had used the tax-consulting services of PTM's co-owner Jim Henry for years before Henry and Jill Brown co-founded PTM. According to Jill Brown, Kolling always contracted orally for litigation services. Kolling confirmed this. When asked how he communicated that he wanted PTM to perform litigation services for tax year 2013, Kolling said, "Similar—like we did all the other years.... We talked about it and said, you know, ‘Go for it.’ " Both PTM and Kolling understood that, just as PTM was paid 20% of the Tax Savings realized at the administrative level, PTM would be paid 20% of the additional Tax Savings obtained through litigation.
General Growth argues that the oral agreement was ineffective because the written agreement stated that the parties would contract for litigation services through a written addendum. But, Texas courts have long held that parties can agree to orally modify contracts containing such provisions. See, e.g., Southwinds Express Constr., LLC v. D.H. Griffin of Tex., Inc. , 513 S.W.3d 66, 74 n.3 (Tex. App.—Houston [14th Dist.] 2016, no pet.) ; Pointe W. Ctr., LLC v. It's Alive, Inc. , 476 S.W.3d 141, 151 (Tex. App.—Houston [1st Dist.] 2015, pet. denied) ; Double Diamond, Inc. v. Hilco Elec. Co-op., Inc. , 127 S.W.3d 260, 267 (Tex. App.—Waco 2003, no pet.). While Kolling's failure to execute a written addendum is some evidence of the absence of an intention to contract for PTM's litigation services, that evidence is contradicted by Kolling's testimony affirming both the existence of the oral modification and its terms. Because the jury reasonably could resolve the conflicting evidence by crediting Kolling's testimony, we conclude that the evidence is legally and factually sufficient to support the jury's finding that General Growth contracted for PTM's litigation services for tax year 2013.
General Growth additionally argues that it can have no liability for breach of the 2013 contract because the contract provided that PTM's sole remedy was to have General Growth change the designation of its tax representative on file at the appraisal district. In support of this argument, General Growth relies on a contract clause stating, "In the event Client fails to cooperate with and facilitate Consultant's process, Client agrees to, upon Consultant's request, take necessary steps to update any an[d] all ‘Appointment of Agent’ designations affected." Because this language is unambiguous, we review it de novo. See URI, Inc. v. Kleberg Cnty. , 543 S.W.3d 755, 763 (Tex. 2018). General Growth does not explain its conclusion that this provision affords PTM its sole remedy for breach of contract. Nothing in this provision purports to limit any of PTM's remedies for breach of contract; to the contrary, it adds an additional remedy. We therefore conclude that, having provided legally and factually sufficient evidence that General Growth breached the 2013 contract, PTM is not barred from recovering damages.
We overrule General Growth's first five issues.
For clarity, we have numbered General Growth's issues. Its first five issues are as follows:
1. Was Appellee required to obtain a written contract addendum for the provision of litigation services for tax year 2013?
2. Did Appellants' intentional refusal to execute a proposed written contract addendum show intent of the parties regarding contract formation?
3. Were oral agreements contractually allowed by these parties?
4. Was the official changing of a tax[-]designation form the sole remedy for alleged non-performance by Appellants?
5. Were material terms of the agreements changed each year, making it impossible to ascertain the exact terms of an alleged oral contract?
IV. BREACH OF THE 2014 CONTRACT
In challenging the jury's liability finding regarding the 2014 contract, several of General Growth's arguments emphasize that PTM did not render tax-consulting services in 2014 as part of General Growth's tax protests at the administrative level or in litigation. These arguments appear to confuse an action to collect on a contract with an action for its breach. For example, General Growth states that PTM's rendition of services was a condition precedent to General Growth's obligation to pay, and because PTM did not even obtain financial information from General Growth needed for PTM to perform the contract, General Growth maintains that it owes PTM nothing. Similarly, General Growth argues that there was no meeting of the minds that General Growth would pay PTM if PTM had rendered no services, and that the code of ethics applicable to property-tax consultants bars such consultants from "contract[ing] for or accept[ing] compensation or anything of value for services not performed." 16 TEX. ADMIN. CODE § 66.100.
But, to prevail on a breach-of-contract claim, a plaintiff need only establish that (a) a valid contract existed between the plaintiff and the defendant, (b) the plaintiff tendered performance or was excused from doing so, (c) the defendant breached the terms of the contract, and (d) the plaintiff sustained damages as a result of the defendant's breach. Viajes Gerpa, S.A. v. Fazeli , 522 S.W.3d 524, 539 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). In suing General Growth for breach of the 2014 contract, PTM does not seek compensation for a contract that it performed; it seeks damages for a contract that was not performed due to General Growth's breach. General Growth had a written contract granting PTM the exclusive right to serve as its property-tax consultant regarding the four shopping malls, for which PTM was to be paid 20% of the Tax Savings obtained at the administrative level and 20% of any further Tax Savings obtained through litigation, with the fees obtained at the administrative level capped at $100,000.00. But, General Growth repudiated the contract, informing PTM that it would not pay for PTM's services on a contingency basis. This was an anticipatory breach of contract. See CMA-CGM (Am.), Inc. v. Empire Truck Lines, Inc. , 416 S.W.3d 495, 519 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) ("Repudiation or anticipatory breach is a positive and unconditional refusal to perform the contract in the future, expressed either before performance is due or after partial performance.").
Upon General Growth's anticipatory breach of the contract, PTM had a choice. If PTM were to treat the contract as terminated, then the breach would excuse PTM from any further performance. See Advanced Pers. Care, LLC v. Churchill , 437 S.W.3d 41, 46–47 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (citing Mustang Pipeline Co. v. Driver Pipeline Co. , 134 S.W.3d 195, 196 (Tex. 2004) (per curiam) ). If PTM instead treated the contract as continuing, then PTM would waive General Growth's breach as an excuse for its own failure to perform. See id. (citing Long Trusts v. Griffin , 222 S.W.3d 412, 415–16 (Tex. 2006) (per curiam) ). PTM chose the former, and General Growth's anticipatory breach of the contract excused PTM from further performance. General Growth does not challenge the sufficiency of the evidence that PTM tendered performance, and in light of General Growth's breach, no more was required of PTM.
We overrule Issues 6, 7, 9, 10, and 12.
General Growth states these issues as follows:
6. Did Appellee possess the "kick-off" [financial] documentation essential for the provision of services for tax year 2014?
7. Was Appellee required to perform actual services to earn a contingency fee?
9. Did Appellee voluntarily end the relationship with Appellant or was Appellee terminated?
10. Did the agreements authored by Appellee prohibit the use of guesstimates when calculating Appellee's contingency fee?
12. Was the receipt of actual and final values from ARB or litigation required before Appellee earned a contingency fee?
General Growth did not brief Issues 8 and 11, which it phrased as,
8. Did the 2014 Service Agreement contain a $100,000 cap?
11. Did the agreements authored by Appellee provide the precise formula for calculating Appellee's contingency fees?
Regarding the $100,000 cap in the 2014 contract mentioned in Issue 8, General Growth merely points out that although Kolling asked PTM to draft the contract to cap the fees at $100,000, PTM drafted the contract to apply the cap only to proceedings at the administrative level. By this language, PTM made a counteroffer. See Tauch v. Angel, Tr. for Gobsmack Gift Tr. , 580 S.W.3d 808, 814 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) ("An acceptance that is conditioned on terms at variance with those in the offer operates as a counteroffer and terminates the original offer."). Kolling executed the contract, thereby accepting the counteroffer on General Growth's behalf. See Davis v. Tex. Farm Bureau Ins. , 470 S.W.3d 97, 104 (Tex. App.—Houston [1st Dist.] 2015, no pet.) ("Once accepted, the original offeror will be bound to the terms of the counteroffer."). General Growth does not argue otherwise.
V. DAMAGES
The jury was charged to measure PTM's damages for General Growth's breach of the 2013 and 2014 contracts by "[t]he amount [General Growth] agreed to pay PTM for the work performed by PTM" and by "[l]ost profits that were a natural, probable, and foreseeable consequence of [General Growth's] failure to comply" with the contracts. Because General Growth did not object to the charge or offer alternative instructions, we measure the sufficiency of the evidence by the charge as given. See Romero v. KPH Consol., Inc. , 166 S.W.3d 212, 221 (Tex. 2005) ; Osterberg v. Peca , 12 S.W.3d 31, 55 (Tex. 2000).
In Issue 19 (stated as, "Did Appellee prove the required elements for lost profit damages?"), General Growth argues that Van Hook's testimony concerned gross income rather than net profit. Because the instructions did not inform the jury how to calculate "lost profits" and General Growth did not object to the omission, General Growth failed to preserve this complaint for review. See Tex. R. App. P. 33.1(a). We therefore do not consider this issue.
To recover lost profits, the "[t]he loss amount must be shown by competent evidence with reasonable certainty." Helena Chem. Co. v. Wilkins , 47 S.W.3d 486, 504 (Tex. 2001). Ascertaining lost profits is a fact-intensive determination, which must be based on "objective facts, figures, or data." Id. Moreover, "[r]ecovery of lost profits must be predicated on one complete calculation." Holt Atherton Indus., Inc. v. Heine , 835 S.W.2d 80, 85 (Tex. 1992).
A. The Evidence is Legally Insufficient to Support the Full Amounts Awarded.
General Growth argues that the evidence is legally insufficient to support the jury's lost-profits findings because Van Hook was not qualified to testify on the subject and his testimony was unreliable. We do not consider General Growth's arguments about Van Hook's qualifications because that complaint was not preserved in the trial court. We agree, however, that Van Hook's testimony was unreliable.
See James Constr. Grp., LLC v. Westlake Chem. Corp. , 594 S.W.3d 722, 755 (Tex. App.—Houston [14th Dist.] 2019, pet. pending) ("An appellate challenge to an expert's qualifications must be preserved by timely objection in the trial court.") (citing Nissan Motor Co. v. Armstrong , 145 S.W.3d 131, 143–44 (Tex. 2004) ). Thus, to the extent that they address Van Hook's qualifications rather than the reliability of his testimony, we do not address Issue 16 (in which General Growth asked, "Were Appellee's so-called expert opinions regarding estimated damages qualified or reliable?") or Issue 17 (phrased as, "Can an expert witness be properly qualified to render expert opinions about contractual damages when that expert has failed to review the very contracts at issue in the case?").
Van Hook did not offer his own opinion on PTM's damages. He instead was shown the demonstrative aid prepared by Lemoine, as amended by PTM's counsel, and was asked if he had an opinion on the accuracy of the figures. Van Hook responded, "I think they are pretty accurate, with the knowledge that particular client—consultant has of his client and his client's properties." When asked the question a second time, Van Hook again said,
Based on the agent, Ms. Lemoine, her background of those properties, her knowledge of those properties, her knowledge of the processes at Harris County Appraisal District, or Fort Bend County Appraisal District, where one of these is located, —I would say that they're pretty accurate and her estimation is as good as I could get.
His explanation of the demonstrative aid was that "[i]t's just based on Ms. Lemoine's experience with Harris County Appraisal District, her knowledge of the properties, her background with these properties, her knowledge of the market. She felt like that those were the numbers that could be achieved." In sum, Van Hook deferred to Lemoine's opinion based on her knowledge and experience.
Although Lemoine did not testify as an expert, Van Hook's references to Lemoine's knowledge and experience were allusions to her qualifications as an expert witness. See TEX. R. EVID. 702 ("A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's ... specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue."). Knowledge and experience may qualify a person to offer an expert opinion if doing so will help the trier of fact to understand the evidence or determine a fact issue. But, even the testimony of a qualified expert must be reliable. See Volkswagen of Am., Inc. v. Ramirez , 159 S.W.3d 897, 904 (Tex. 2004). "An expert's bare opinion will not suffice." Id.
For an expert's testimony to be considered reliable, the expert "must show the connection between the data relied on and the opinion offered." Id. at 906. The opinion "must be supported by facts in evidence, not conjecture." Marathon Corp. v. Pitzner , 106 S.W.3d 724, 729 (Tex. 2003) (per curiam). "When an expert's opinion is based on assumed facts that vary materially from the actual, undisputed facts, the opinion is without probative value and cannot support a verdict or judgment." Burroughs Wellcome Co. v. Crye , 907 S.W.2d 497, 499 (Tex. 1995).
Van Hook could offer no explanation of the demonstrative aid other than to explain that he credited Lemoine's opinion because she was qualified and did a thorough "workup" of the properties in preparation for the tax protests. But Van Hook had no basis on which to evaluate Lemoine's estimate of PTM's breach-of-contract damages. Van Hook admitted that he had never seen the contracts between the parties. He admitted he knew nothing about the $100,000.00 cap on PTM's fees at the administrative level in the 2014 contract. He admitted that he did not know the extent to which PTM had already been paid for its 2013 work. He could not compare Lemoine's workups to those prepared by Equity, because he admitted he had never seen Equity's workups. Van Hook did little more than read aloud a few isolated parts of the demonstrative aid. We do not even know all of the numbers that Lemoine relied upon in calculating her estimate of lost profits: because the demonstrative aid was not evidence, the information it contained is not in the record.
Nevertheless, the little that the record reveals about the demonstrative aid is sufficient to establish that Lemoine—and thus, Van Hook—relied on assumed facts that varied materially from the undisputed facts. For example, Van Hook read from the demonstrative aid that in tax year 2013, Baybrook Mall was initially valued at $149.8 million and Lemoine predicted that General Growth and PTM would finally agree to a value of $110 million—a reduction of $39.8 million in the property's assessed value. But, there is uncontroverted evidence establishing the actual amount by which each of the four shopping mall's assessed value was reduced in 2013 and 2014. This evidence, located in an exhibit used by PTM to compare PTM's 2013 results with Equity's 2014 results, shows that the 2013 reduction of Baybrook Mall's assessed value, which was based on a workup performed by Lemoine, was not $39.8 million; it was less than $10.7 million. The demonstrative aid calculated PTM's lost profits by assuming that General Growth's Tax Savings were nearly four times greater than the undisputed amount actually realized. The calculations based on such unexplained assumptions were unreliable, whether those calculations remained on a demonstrative aid or were read aloud by a witness. See id.
We sustain Issues 13, 14, and 18. Because Van Hook's testimony and the demonstrative aid on which it was based are unreliable, we conclude that the evidence is legally insufficient to support the jury's findings that PTM sustained damages of $175,560.00 for General Growth's breach of the 2013 contract and damages of $254,000.00 for General Growth's breach of the 2014 contract.
These issues are as follows:
13. Did Appellee's damage model employ "estimated damages" or guesstimates?
14. Did Appellee's damage model employ an "alternate universe" approach consisting of what may have happened if Appellee had continued to provide services?
18. Can the testimony of an expert witness be reliable if the testimony consists of merely confirming another expert's inadmissible and illegal opinions?
We also sustain the portion of Issue 16 directed to the reliability of Van Hook's testimony rather than to his qualifications. See note 7, supra.
B. The Evidence is Legally and Factually Sufficient to Support a Lesser Damage Award.
Although Van Hook's testimony is legally insufficient to support the full amount of damages assessed by the jury, other evidence is legally and factually sufficient to support awards of lesser amounts.
Regarding General Growth's breach of the 2013 contract, the evidence includes PTM's actual invoice for litigation services rendered in contesting the taxes on First Colony Mall. The invoice notes that the property's proposed value had been $90,026,600.00 and that its final assessed value was $75,858,000.00, which is a difference of $14,168,600.00. The invoice also notes that the tax rate on the property was 2.277710%, so that the difference in the assessed value resulted in Tax Savings to General Growth of $322,719.62. Finally, the invoice calculates PTM's 20% commission on the Tax Savings it obtained for General Growth, arriving at a fee of $64,543.92.
For the parties' reference, this is Plaintiff's Exhibit 4.
Regarding breach of the 2014 contract, the evidence contains an invoice that PTM created for its internal use, and although PTM did not transmit it to Equity or to General Growth, the invoice uses the actual proposed and final values for each of the malls for tax year 2014. As to each property, the invoice also includes the applicable tax rate, the Tax Savings, and PTM's 20% commission. The sum of PTM's 20% fee of the Tax Savings actually obtained for each property equals $74,496.34.
For the parties' reference, this is Defendants' Exhibit 1M.
Although it is not clear whether 2013 or 2014 tax rates are used in this invoice, the 2014 contract states, "Actual tax rates will be used for the calculation of fees unless current year rates have not been set at the time the service is rendered. In that instance, the prior year's rate will be used as an estimator for the purpose of calculating the fee."
Because each of these invoices contain complete calculations applying the formula to which the parties agreed to the results actually obtained, they are legally and factually sufficient to support damage awards of $64,543.92 for General Growth's breach of the 2013 contract and $74,496.34 for General Growth's breach of the 2014 contract, for a total damage award of $139,040.26.
We accordingly overrule Issue 15, in which General Growth alleged that PTM "fail[ed] to present evidence of what the actual contingency fee would have been according to the written agreements between the parties." Because the evidence is legally sufficient to support some, but not all, of the damages awarded, we reverse the judgment and remand the case for a new trial; however, we suggest remittitur of $290,519.74 from the damages of $429,560.00 assessed by the jury and awarded in the judgment, and if the remittitur is timely filed within fifteen days, we instead will reform the judgment and affirm the judgment as modified. See TEX. R. APP. P. 46.3.
See also Sw. Battery Corp. v. Owen , 131 Tex. 423, 428, 115 S.W.2d 1097, 1099 (1938) ("[U]ncertainty as to the fact of legal damages is fatal to recovery, but uncertainty as to the amount will not defeat recovery."), quoted with approval in ERI Consulting Eng'rs Inc. v. Swinnea , 318 S.W.3d 867, 877–78 (2010) (remanding for the intermediate appellate court to consider suggesting remittitur of lost-profit damages).
VI. CONCLUSION
We conclude that the evidence is legally and factually sufficient to support the jury's liability findings but is sufficient to support only some of the damages awarded. We therefore reverse the judgment and remand the case for a new trial, but if PTM files a remittitur of $290,519.74 from the $429,560.00 damage award within fifteen days, we will instead modify the judgment to reduce the damage award to $139,040.26 and affirm the judgment as modified.