Texas Civil Practice and Remedies Code section 41.003(d) states that "[e]xemplary damages may be awarded only if the jury was unanimous in regard to finding liability for and the amount of exemplary damages." Rules adopted by the Supreme Court confirm that unanimity for liability must also extend to the underlying liability theory.

ter Mendell transferred $200,000 from the Trust’s investment account to a no or low interest checking account, she paid approximately $200,000 in attorney’s fees and other expenses out of assets of the Trust, improperly and without appellees’ knowledge, which is evidence of a corresponding $200,000 loss in value to the Trust. Accordingly, considering the evidence in a light most favorable to the jury’s findings and indulging every reasonable inference to support them, we conclude there is legally sufficient evidence to support the jury’s finding that $200,000 represented the amount of loss in the value of the Trust as a result of Mendell’s breach.Id.The court then addressed the trustee’s argument that there was not sufficient evidence to support the exemplary damages award. Exemplary damages may be awarded if “the claimant proves by clear and convincing evidence that the harm with respect to which the claimant seeks recovery of exemplary damages results from . . . malice.” Id. (citing Tex. Civ. Prac. & Rem. Code § 41.003(a)(2)). Malice is defined as “a specific intent by the defendant to cause substantial injury or harm to the claimant.” Id. (citing Tex. Civ. Prac. & Rem. Code. § 41.001(7)). The court found that the evidence was sufficient to support the jury’s finding. The trustee admitted that even though she thought her five law firms informed the plaintiffs of her decision that their mother did a prohibited act, she admitted she did not present any documentary evidence, including emails or letters, demonstrating that this information was sent by her attorneys. She admitted that she did not disclose her concerns related to the disclaimer until after sued her. She did not communicate this decision despite receiving repeated emails and questions asking for a status report on the distribution of trust assets. “Although Rachel sent Mendell 12 emails over a six-month period in 2018, Mendell either did not respond to these emails or, when she finally did respond, she promised to address Rachel’s concerns soon,

In a civil case, a plaintiff must prove by clear and convincing evidence the elements of exemplary damages. Tex. Civ. Prac. & Rem. Code Ann. § 41.003(b). “‘Clear and convincing’ means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.”

Specifically, the Court found that the class members might recover consequential damages, including costs for travel, hotel, and restaurant expenses. In addition, because the plaintiffs alleged fraud, they might be entitled to punitive damages under Tex. Civ. Prac. & Rem. § 41.003. In Texas, punitive damages are limited to the greater of two times the amount of economic damages; plus an amount equal to any noneconomic damages found by the jury, not to exceed $750,000; or $200,000.