No. 05-99-00091-CV.
Opinion issued January 21, 2000. DO NOT PUBLISH. Tex. R. App. P. 47.
Appeal from the 14th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 96-12126-A.
REVERSED and REMANDED
Before Justices WRIGHT, BRIDGES, and STEPHENS
The Honorable Bill J. Stephens, Justice, Fifth District Court of Appeals at Dallas, Retired, sitting by assignment.
Opinion By Justice BRIDGES
Brown Foundation Repair Consulting Co., Inc. ("Brown Foundation") and Brown Consolidated, Inc. ("Brown Consolidated") appeal a judgment entered in favor of Luz Gonzalez following a jury verdict. In five points of error, Brown Foundation and Brown Consolidated (collectively, "appellants") contend the trial court erred in (1) admitting certain evidence at trial, (2) not reducing the amount of the judgment to reflect certain payments previously made to Gonzalez, (3) sustaining Gonzalez`s objection to appellants` use of a peremptory strike, and (4) entering judgment against Brown Consolidated. In one additional point of error, appellants contend the evidence is factually insufficient to support portions of the jury`s damage award. For the reasons set forth below, we reverse the trial court`s judgment and remand this cause to the trial court for entry of judgment consistent with this opinion.
BACKGROUND
On November 22, 1994, Luz Gonzalez was injured while at work. Almost two years later, Gonzalez filed suit against his employer, Brown Foundation, and its parent corporation, Brown Consolidated. In his petition, Gonzalez asserted claims against appellants for negligence, gross negligence, and negligence per se. In June 1998, the case was tried to a jury. During trial, Gonzalez presented testimony from five witnesses, and appellants presented one witness in response. At the close of testimony, the trial court submitted the claims against appellants to the jury. After deliberating, the jury returned a verdict in favor of Gonzalez, awarding him $150,000 in actual damages plus prejudgment interest. The trial court entered judgment pursuant to the jury`s verdict, and appellants subsequently brought this appeal. ADMISSION OF EVIDENCE
In their first point of error, appellants contend the trial court erred in admitting into evidence testimony from Gonzalez`s expert and fact witnesses as well as documentary evidence. According to appellants, admitting this evidence was improper because Gonzalez failed to comply with the deadlines set out in the court`s docket control order. After reviewing the record in this cause, we cannot agree with appellants. As a general rule, a trial court`s scheduling order controls discovery dates in the absence of a rule 11 agreement or an order changing the pretrial dates. See Gammill v. Jack Williams Chevrolet, Inc., 983 S.W.2d 1, 13 (Tex.App.-Fort Worth 1996), aff`d, 972 S.W.2d 713 (Tex. 1998); Beamon v. O`Neill, 865 S.W.2d 583, 585 (Tex.App.-Houston [14th Dist.] 1993, orig. proceeding). Former rule 215(5) of the rules of civil procedure mandates the exclusion of evidence not timely designated under a pretrial scheduling order, unless good cause is shown. Tex. R. Civ. P. 215(5) (former rules); see Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 395 (Tex. 1989) (noting that testimony of unidentified witness is admissible if trial court finds good cause exists); Haryanto v. Saeed, 860 S.W.2d 913, 924 (Tex.App.-Houston [14th Dist.] 1993, writ denied) (op. on reh`g). "Good cause" for purposes of former rule 215(5) is good cause for failing to timely designate. Gammill, 983 S.W.2d at 13. The good cause exception permits a trial court to excuse a failure to comply with discovery because of a difficult or impossible situation. See Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. 1992) (op. on reh`g). The burden of establishing good cause is on the party offering the evidence, and good cause must be shown in the record. Tex. R. Civ. P. 215(5) (former rules); see Gee, 765 S.W.2d at 395; Gutierrez v. Dallas Indep. Sch. Dist., 729 S.W.2d 691, 693-94 (Tex. 1987). In determining whether good cause exists, we may consider the following non-exclusive factors: (1) inadvertence of counsel; (2) lack of surprise, unfairness, or ambush; (3) uniqueness of the excluded evidence; and (4) opposing counsel`s opportunity to depose the witness. See Patton v. Saint Joseph`s Hosp., 887 S.W.2d 233, 239 (Tex.App.-Fort Worth 1994, writ denied) (noting that any one factor alone would not establish good cause). When reviewing a trial court`s good cause determination, we use an abuse of discretion standard. See Ellsworth v. Bishop Jewelry Loan Co., 742 S.W.2d 533, 534 (Tex.App.-Dallas 1987, writ denied); see also Lindley v. Johnson, 936 S.W.2d 53, 56 (Tex.App.-Tyler 1996, writ denied) (op. on reh`g). We reverse a trial court`s decision only if we conclude it was arbitrary or unreasonable, or made without reference to any guiding rules or principles. See Lindley, 936 S.W.2d at 56. An abuse of discretion does not exist where the trial court bases its decision on conflicting evidence. See Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978). Nevertheless, a trial court`s discretion in determining good cause is limited under rule 215(5) to situations where (1) the party could not, in good faith and with due diligence, respond; or (2) difficult or impossible circumstances prevented the party from supplementing discovery. See Lindley, 936 S.W.2d at 56; Foster v. Cunningham, 825 S.W.2d 806, 808 (Tex.App.-Fort Worth 1992, writ denied). In this case, the trial court`s docket control order required Gonzalez to designate his expert witnesses by March 24, 1998 and his fact witnesses and trial exhibits by June 8, 1998. It is undisputed that Gonzalez did not comply with these deadlines; nevertheless, the trial court concluded good cause existed for Gonzalez`s failure and allowed Gonzalez to present both expert and fact witnesses as well as documentary evidence at trial. This, appellants contend, was error. On the record before us, we cannot agree. As an initial matter, we note that error has not been properly preserved with respect to the admission of Gonzalez`s fact witnesses and trial exhibits. Although appellants filed a motion in limine seeking to exclude this evidence, a trial court`s ruling on a motion in limine does not preserve error for appeal. See Collins v. Collins, 904 S.W.2d 792, 798 (Tex.App.-Houston [1st Dist.] 1995) (op. on reh`g) (citing Hartford Accident Indem. Co. v. McCardell, 369 S.W.2d 331, 335 (Tex. 1963)), writ denied per curiam, 923 S.W.2d 569 (Tex. 1996). If the complained-of evidence is offered at trial, the party seeking to exclude it must object when the evidence is offered. See Collins, 904 S.W.2d at 798; see also Hartnett v. Hampton Inns, Inc., 870 S.W.2d 162, 165 (Tex.App.-San Antonio 1993, writ denied); Brazos Electric Power Co-op, Inc. v. Callejo, 745 S.W.2d 70, 73-4 (Tex.App.-Dallas), rev`d on other grounds, 755 S.W.2d 73 (Tex. 1988). Failure to do so waives error on appeal. See Collins, 904 S.W.2d at 798. In this case, appellants failed to object to the admission of Gonzalez`s fact witnesses and trial exhibits; in fact, appellants affirmatively stated they had "no objection" to many of the exhibits offered at trial. For those exhibits they did object to, it was not on the basis that Gonzalez failed to comply with the court`s docket control order. Under these circumstances, we cannot conclude appellants adequately preserved their complaint about the admission of trial exhibits and fact witness testimony for our review. Turning to the admission of Gonzalez`s expert, we conclude the trial court did not abuse its discretion in reversing its ruling on the motion in limine and admitting the testimony of Dr. Pedro Nosnik. The record in this case indicates that the docket control order was not sent to Gonzalez until May 21, 1998 — almost 60 days after the deadline set in the order for designating expert witnesses. Indeed, the order itself was not generated until April 30, 1998 (the order was dated on that date), and this date itself was over a month after the March 24, 1998 deadline for designating experts. Under these circumstances, we conclude the trial court had some evidence before it from which it could find (1) complying with the order was difficult or impossible, and (2) good cause existed for failing to comply with the order. See Lindley, 936 S.W.2d at 56 (noting that lack of notice is precise reason good cause exception exists). Accordingly, we conclude the trial court did not abuse its discretion in admitting Dr. Nosnik`s testimony at trial. In reaching this decision, we note additionally that the record in this case contains a copy of a "Notice of Designation of Witnesses" sent by Gonzalez`s counsel to appellants` counsel on April 13, 1998 — over sixty days before trial began in this cause. This document identifies Dr. Nosnik as one of Gonzalez`s potential witnesses. Because appellants received a document identifying Dr. Nosnik as a potential witness over sixty days prior to trial, we conclude the untimely designation did not constitute an "ambush" on appellants in this case. See id. (noting that purpose of former rule 215(5) is to prevent trial by ambush) . Accordingly, we conclude the trial court did not abuse its discretion in admitting the complained-of evidence at trial. We overrule appellants` first point of error. PRIOR PAYMENTS
In their second point of error, appellants contend the trial court erred by not admitting into evidence certain payments made to Gonzalez prior to trial or, in the alternative, not crediting those payments to the amount of the judgment in this case. During oral argument, Gonzalez`s counsel conceded that (1) he had previously agreed, during an in-chambers discussion with the court and counsel, that reducing the amount of the judgment by the amount of the previous payments was appropriate; and (2) the parties had stipulated that the previous payments totaled $24,800.02. We have compared the trial court`s judgment to the jury verdict in this case and, after doing so, we conclude those payments were not, contrary to the parties` intentions, credited toward the judgment. Because the parties have agreed that a credit is appropriate and the amount of the credit is not in dispute, we conclude the trial court erred in not reducing the judgment by $24,800.02 to reflect the payments previously made. Accordingly, we sustain appellants` second point of error to the extent it complains of the failure to reduce the judgment. VOIR DIRE
In their third point of error, appellants contend the trial court erred in sustaining Gonzalez`s objection to appellants` use of a peremptory strike. According to appellants, Gonzalez failed to show the strike was racially motivated, and sustaining Gonzalez`s objection under Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) was therefore improper. After reviewing the record in this cause, we cannot agree with appellants. In Edmonson, the United States Supreme Court held that the reasoning of Batson v. Kentucky, 476 U.S. 79 (1986), which prohibited the exercise of racially motivated peremptory strikes in criminal cases, applies to civil cases. See Edmonson, 500 U.S. at 630; see also Powers v. Palacios, 813 S.W.2d 489, 491 (Tex. 1991); Price v. Short, 931 S.W.2d 677, 680 (Tex.App.-Dallas 1996, no writ). To invoke the protections of Edmonson, however, a party must first raise an inference of purposeful discrimination, and the trial court must determine that a prima facie case of discrimination exists. Price, 931 S.W.2d at 680. A party establishes a prima facie case by presenting facts, as well as other relevant circumstances, that raise an inference that the peremptory strike was used to exclude a venire member on the basis of race. See id.; see also Keeton v. State, 724 S.W.2d 58, 65 (Tex.Crim.App. 1987) (op. on reh`g). Once a prima facie case is established, the burden shifts to the proponent of the strike to present a race-neutral explanation for the strike. See Purkett v. Elem, 514 U.S. 765, 767 (1995) (per curiam); Keeton, 724 S.W.2d at 65. An explanation is race neutral if it is based on something other than the juror`s race. See Goode v. Shoukfeh, 943 S.W.2d 441, 445 (Tex. 1997). According to the Supreme Court, the explanation need not be otherwise persuasive or even plausible. See Purkett, 514 U.S. at 767-68. Once a race-neutral explanation is tendered, the burden shifts back to the complaining party to show the explanation was really a sham or pretext for purposeful discrimination. If the trial court determines the strike was racially motivated, it may in its discretion place the wrongfully struck venire member on the jury panel. See Price, 931 S.W.2d at 680-81; see also State ex rel. Curry v. Bowman, 885 S.W.2d 421, 425 (Tex.Crim.App. 1993) (orig. proceeding), cert. denied, 513 U.S. 866 (1994). On appeal, we give great deference to the trial court`s decision regarding discriminatory intent. See Goode, 943 S.W.2d at 446. Accordingly, we use an abuse of discretion standard when reviewing a trial court`s Edmonson ruling. Id. Under that standard, we reverse a trial court`s decision only if it is arbitrary or unreasonable, or made without reference to any guiding rules or principles. Id.; see Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996). With this standard in mind, we turn to appellants` contentions. In this case, Gonzalez complained of appellants` decision to strike Maria Marrero, a Hispanic female, from the jury venire. Immediately following voir dire, the trial court held a hearing on the objection. After hearing evidence, the trial court sustained the objection, removed the last person seated on the jury, and placed Marrero on the panel. On appeal, appellants contend this ruling was error. After reviewing the record in this cause, we cannot agree. In this case, appellants' counsel attempted to explain his reasons for striking Marrero; thus, the issue of whether Gonzalez established a prima facie case is moot. See Goode, 943 S.W.2d at 445; Price, 931 S.W.2d at 682. The burden therefore shifted to appellants to show a race-neutral explanation for the strike. During the Edmonson hearing, Gonzalez questioned appellants` counsel about his decision to strike Marrero. During that questioning, counsel first said he had "[n]o particular reason" for the strike, he just "felt uncomfortable with it." However, he later indicated Marrero was struck because she shook her head "no" when asked whether she had a problem awarding damages for pain and suffering. While it is true, as appellants suggest, that this latter explanation is a race-neutral reason for striking a juror, the determination of whether the explanation was really a sham or pretext for purposeful discrimination was a matter falling within the trial court`s sound discretion. On the record before us, we conclude the trial court did not abuse its discretion in finding the explanation to be nothing more than a sham or pretext. In making its determination, the trial court was entitled to consider the fact that appellants` counsel never questioned Marrero to verify the assumptions he made based on her nonverbal conduct. See Price, 931 S.W.2d at 685 (noting that failure to question venire member to verify assumptions can constitute some indication that strike was not race neutral). In addition, the court was entitled to consider counsel`s demeanor during the hearing and his apparent inability to provide a clear and concise explanation for the challenged strike. Finally, the court was entitled to consider the admission by appellants` counsel during the hearing that there really was nothing in Marrero`s conduct "on which [he] based [his] hunch." Under these circumstances, we conclude the trial court did not abuse its discretion in concluding that (1) appellants` stated reason for striking Marrero was not credible, and (2) the strike was racially motivated. Accordingly, we conclude the trial court did not abuse its discretion in sustaining Gonzalez`s objection to the strike. In reaching this decision, we necessarily reject appellants` suggestion that the trial court could not have found purposeful discrimination because another Hispanic woman was actually seated on the jury panel. As we see it, this was only one of a number of factors the trial court was entitled to consider in making its "discriminatory intent" determination, and this fact alone would not automatically preclude a finding by the trial court that appellants` strike was racially motivated. Because the record as a whole does not show the trial court acted arbitrarily, unreasonably, or without reference to any guiding rules or principles, we conclude no abuse of discretion is shown. See Goode, 943 S.W.2d at 446. For the reasons stated, we overrule appellants` third point of error. PAST MEDICAL EXPENSES
In their fourth point of error, appellants contend the trial court erred in (1) admitting evidence of Gonzalez`s past medical expenses, and (2) including this element of damages in its charge to the jury. After reviewing appellants` brief in this cause, we conclude this point has not been properly presented for our review. Rule 38.1(h) of the rules of appellate procedure requires an appellant to include in its brief a "clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(h). A point of error not supported by argument and authority is waived. See Farmers Tex. County Mut. Ins. Co. v. Griffin, 868 S.W.2d 861, 870 (Tex.App.-Dallas 1993, writ denied) (applying former appellate rule 74(f)). In this case, appellants have cited no authority, other than a fleeting reference to former rule 215(5) of the rules of civil procedure, to support their argument under the fourth point of error. The discussion does not include any analysis of the rule itself or its requirements, nor does it explain how the rule applies to the particular facts of this case. Under these circumstances, we cannot conclude the requirements of rule 38.1(h) have been met. See Menchaca v. State, 901 S.W.2d 640, 649-50 (Tex.App.-El Paso 1995, pet. ref`d) (applying former appellate rule 74(f)). Appellants` complaint is, therefore, waived. We overrule appellants` fourth point of error. JUDGMENT AGAINST BROWN CONSOLIDATED
In their fifth point of error, appellants contend the trial court erred in entering judgment against Brown Foundation`s parent company, Brown Consolidated, because there was no evidence or, alternatively, insufficient evidence to show that Gonzalez worked for Brown Consolidated and, thus, that Brown Consolidated owed a duty to Gonzalez. In addition, appellants contend it was error to enter judgment based on a "piercing the corporate veil" theory because no such theory was (1) pleaded in the trial court, or (2) submitted to the jury for its determination. After reviewing the record in this cause, we cannot agree with appellants. As an initial matter, we reject appellants' argument that Gonzalez was precluded from relying on an "alter ego" or "undercapitalization" theory to pierce the corporate veil because he did not affirmatively plead those theories in the trial court or submit them to the jury for use during deliberations. The record in this case belies appellants` argument on this point. According to the record, Gonzalez`s attorney raised the issues of undercapitalization and alter ego as early as voir dire. The issues were again raised during counsel`s opening statement to the jury. Finally, during the presentation of evidence and closing argument, Gonzalez`s counsel again addressed the propriety of piercing the corporate veil either based on an alter ego theory or because of inadequate capitalization. At no time did appellants object to these references and, in fact, appellants addressed both issues themselves repeatedly before the jury. In addition, Gonzalez sought to have the issues submitted to the jury for use during its deliberations; but, the trial court declined Gonzalez`s request. Appellants made no objection to the court`s ruling at that time. Under these circumstances, we cannot conclude Gonzalez waived his reliance on these theories by not (1) pleading them in the court below, or (2) having them submitted to the jury for use during deliberations. Having disposed of appellants` waiver arguments, we turn to the merits of appellants` sufficiency challenge. When reviewing a "no-evidence" challenge, we consider only the evidence and inferences tending to support the jury`s finding, disregarding all evidence and inferences to the contrary. See Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996). If more than a scintilla of evidence exists to support the finding, the no-evidence challenge fails. See id. By contrast, when reviewing a factual sufficiency challenge, we consider all of the evidence presented. See Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); Harco Nat`l Ins. Co. v. Villanueva, 765 S.W.2d 809, 810 (Tex.App.-Dallas 1988, writ denied). We set aside the jury`s finding only if the evidence supporting the finding is so weak as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). As a general rule, a parent corporation is not liable for the torts of its subsidiaries. See Lucas v. Texas Indust., Inc., 696 S.W.2d 372, 374 (Tex. 1984); Villanueva v. Astroworld, Inc., 866 S.W.2d 690, 695 (Tex.App.-Houston [1st Dist.] 1993, writ denied). However, the protections afforded by the corporate form may be disregarded and the corporate veil pierced when, among other things, the corporate fiction is used as a means of perpetrating a fraud or a corporation is organized and operated as a mere tool or business conduit of another corporation. See Castleberry v. Branscum, 721 S.W.2d 270, 271-72 (Tex. 1986). Stated otherwise, when the corporate privilege is abused, courts will pierce the corporate veil and hold the parent company liable. See id. at 271 ("We disregard the corporate fiction . . . when the corporate form has been used as part of a basically unfair device to achieve an inequitable result."); Harwood Tire-Arlington, Inc. v. Young, 963 S.W.2d 881, 885 (Tex.App.-Fort Worth 1998, writ dism`d by agr.). Inadequate capitalization and alter ego are both bases for disregarding the corporate fiction. See Castleberry, 721 S.W.2d at 272 n. 3; see also Torregrossa v. Szelc, 603 S.W.2d 803, 804-05 (Tex. 1980). Alter ego applies when such unity exists between the parent corporation and its subsidiary that the "separateness" of the entities no longer exists and holding only the subsidiary liable would result in an injustice. See Castleberry, 721 S.W.2d at 272 (noting that alter ego exists when corporation is organized and operated as mere tool or business conduit of another corporation); Young, 963 S.W.2d at 885. Alter ego is shown from the total dealings of the parent and subsidiary. See Young, 963 S.W.2d at 885; see also Gentry v. Credit Plan Corp., 528 S.W.2d 571, 573-76 (Tex. 1975). The determination of whether to disregard the corporate fiction is a fact question for the jury to decide. See Castleberry, 721 S.W.2d at 277 (noting that issue involves questions of fact and, except in special circumstances, should be determined by jury). When considering whether to pierce the corporate veil, the fact finder may consider the following non-exclusive list of factors: (1) unity of ownership; (2) the degree to which corporate formalities have been followed and corporate and personal property kept separate, see Castleberry, 721 S.W.2d at 272; (3) the amount of financial interest, ownership, and control one corporation maintains over the other corporation, see id.; and (4) whether the two entities file consolidated tax returns and the extent to which the books are separate. See Moffett v. Goodyear Tire Rubber Co., 652 S.W.2d 609, 613 (Tex.App.-Austin 1983, writ ref`d n.r.e.). In this case, it is undisputed that Gonzalez was not an employee of Brown Consolidated; thus, the imposition of liability on Brown Consolidated depended entirely on a finding that Brown Consolidated was liable for the acts of its subsidiary. At trial, Gonzalez relied on an "alter ego" and "undercapitalization" theory to convince the jury to pierce the corporate veil; the jury, by its verdict, found in favor of Gonzalez on this point. After reviewing the record in this cause, we conclude the jury`s decision is supported by factually and legally sufficient evidence. During trial, Robert Brown testified that Brown Consolidated is Brown Foundation`s sole shareholder and that he and his wife are Brown Consolidated`s sole shareholders. Brown Foundation and Brown Consolidated share the same accountant and have for several years filed consolidated income tax returns. In addition to Brown`s position as CEO of Brown Foundation and shareholder of Brown Consolidated, the two entities share additional officers/directors — i.e., Brown`s son, who was president of Brown Foundation and an officer in Brown Consolidated. Additionally, Brown testified that, as of 1994, Brown Foundation had very few assets and, in fact, the company was heavily in debt to Brown Consolidated. Finally, Brown admitted during questioning by Gonzalez`s counsel that Brown Foundation would not have sufficient funds or assets to pay a $100,000 judgment in this case; Brown Consolidated, on the other hand, would. We have reviewed this evidence and, after doing so, we conclude it presents some probative evidence from which a jury could find that (1) Brown Foundation was undercapitalized, or (2) Brown Consolidated and Brown Foundation were so assimilated that Brown Foundation was nothing more than a name or conduit through which Brown Consolidated conducted its business. Likewise, we conclude, after reviewing all the evidence presented, that the evidence supporting this finding was not so weak as to be clearly wrong or manifestly unjust. For the reasons stated, we overrule appellant`s fifth point of error. DAMAGE AWARD
In their sixth point of error, appellants contend the evidence is factually insufficient to support the jury`s damage award. Under this point, appellants ask us to either reverse the award and remand the case for a new trial or reduce the total award to "reflect an amount that corresponds with the evidence presented." On the record before us, we decline to do either. In this case, the trial court submitted a broad-form damage question to the jury. Neither side objected to the form of the question. When a broad-form question is submitted, the defendant has the burden to show on appeal that not a single element of the damages submitted is supported by sufficient evidence. See Greater Houston Transp. Co. v. Zrubeck, 850 S.W.2d 579, 589 (Tex.App.-Corpus Christi 1993, writ denied) (noting that to successfully attack multi-element damage award, appellant must address every element of damages and show no element is supported by sufficient evidence). Failure to do so results in waiver of the sufficiency challenge. See Haryanto, 860 S.W.2d at 922; Zrubeck, 850 S.W.2d at 589; see also Thomas v. Oldham, 895 S.W.2d 352, 359-60 (Tex. 1995). Here, we conclude appellants have failed to adequately challenge each element of damages submitted and, thus, have failed to adequately preserve their sufficiency challenge for our review. As noted above, the jury in this case was asked to consider a number of different elements of damages when arriving at their total damage award. Thus, appellants were required, under the authority of Haryanto, Zrubeck, and Thomas, to challenge each element of damages submitted and set out precisely why each award was improper. This, we conclude, they have not done. A review of appellants` brief indicates that while appellants may have referenced each damage element in their argument to this Court, they have not provided any real substantive analysis of why the jury`s award of damages under each element was improper. Under these circumstances, we cannot conclude that (1) appellants have adequately challenged all elements of the damage award as required by Haryanto, Zrubeck, and Thomas; and (2) this point has been adequately preserved for our review. Accordingly, we overrule appellants` sixth point of error. For the reasons stated, we reverse the trial court`s judgment and remand this cause to the trial court for (1) reformation of the judgment to reflect a $24,800.02 reduction in the amount of actual damages, and (2) recalculation of prejudgment interest.