Carey Ebert v. Michael Gustin ( 2019 )


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  •      Case: 18-10382     Document: 00514936875   Page: 1   Date Filed: 04/30/2019
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 18-10382
    FILED
    April 30, 2019
    Lyle W. Cayce
    In the Matter of: LATITUDE SOLUTIONS, INCORPORATED,                          Clerk
    Debtor
    CAREY D. EBERT,
    Appellee
    v.
    JOHN PAUL DEJORIA; HOWARD MILLER APPEL; EARNEST A.
    BARTLETT, III; MATTHEW J. COHEN,
    Appellants
    Appeals from the United States District Court
    for the Northern District of Texas
    Before BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.
    HAYNES, Circuit Judge:
    This appeal involves two competing versions of the history and purpose
    of Latitude Solutions, Inc. (“LSI”). Howard Appel, Earnest Bartlett, Matthew
    Cohen, and John Paul DeJoria (“Appellants”) characterize LSI as a publicly
    traded company which sought to commercialize technology that could
    remediate contaminated water but was unsuccessful as a speculative venture.
    On the other hand, LSI’s bankruptcy trustee, Carey Ebert, characterizes LSI
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    as a fraud from its inception—used only as a mechanism for Appellants to
    participate in and profit from a securities fraud scheme. Ebert sued several of
    LSI’s corporate officers, directors, and investors for breaches of fiduciary duty.
    By the end of trial, her case focused primarily on a contract LSI entered into
    with Jabil Inc., one of LSI’s bankruptcy creditors. The jury found Appellants
    liable and assessed millions of dollars in compensatory and exemplary
    damages. Appellants present various arguments for why we should overturn
    the jury verdict and reduce damages, including whether Ebert has Article III
    standing and whether there was legally sufficient evidence for the jury to find
    as it did. We AFFIRM in part, REVERSE and RENDER in part, VACATE in
    part, and REMAND for further consideration consistent with this opinion. 1
    I.     Background
    This appeal stems from a jury verdict and final judgment adjudicating
    Matthew Cohen and John Paul DeJoria liable for breaches of fiduciary duty to
    LSI and finding Howard Appel and Earnest Bartlett liable for aiding and
    abetting those breaches.        The final judgment awards Ebert compensatory
    damages against (i) Appel, Bartlett, Cohen, and DeJoria for $6.9 million,
    jointly and severally, for Cohen’s breach of fiduciary duty; (ii) Appel and
    Bartlett for $2.5 million each for aiding and abetting Cohen’s breach of
    fiduciary duty; (iii) DeJoria for $1.5 million for his breach of fiduciary duty;
    and (iv) Appel for $5 million, Cohen for $2 million, and DeJoria for $1 million
    in exemplary damages.
    1  As explained more fully below, we reverse and render judgment in favor of Appel,
    Bartlett, and DeJoria. As for Cohen, we vacate damages awarded under Damage Element
    No. 1, affirm damages awarded under Damage Element No. 2, and remand to the district
    court to consider the legal issues surrounding exemplary damages against Cohen in the first
    instance.
    2
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    A. LSI
    The parties disagree on the basic premise of LSI’s formation. Ebert
    asserts LSI was a sham company set up to fail from the outset, and a vehicle
    for Appellants to participate in a securities fraud scheme known as “pump-
    and-dump,” while Appellants claim LSI was legitimately founded to develop
    and commercialize technology capable of remediating contaminated water.
    LSI was a publicly traded company that began operating in 2009 and developed
    patented technology for treatment of wastewater in the oil and gas industry.
    LSI was a speculative venture that eventually filed for bankruptcy in
    November 2012. 2
    B. Matthew Cohen
    Cohen was one of the founding members of LSI and served as an officer
    and director of LSI from March 2009 through June 2012. Cohen was the Chief
    Financial Officer of LSI from June 2011 to June 2012.
    C. Howard Appel
    Appel was a business consultant to and raised capital for LSI. In 2004,
    before LSI existed, Appel pled guilty to conspiracy to commit securities fraud
    as well as conspiracy to commit money laundering and served twenty-one
    months in prison. The parties vehemently disagree whether this is relevant to
    LSI. The trustee uses Appel’s conviction as evidence of a pattern of nefarious
    behavior, while Appellants argue Appel’s past is the only reason for the
    trustee’s lawsuit, despite no evidence that Appel engaged in any criminal
    conduct related to LSI.        An LSI board member introduced Appel to the
    2 Aside from the allegations regarding each Appellant’s conduct, which are discussed
    below, LSI experienced internal control and accounting issues. For example, its financial
    team used accounting software that was inadequate for a publicly traded company and
    eventually self-reported to the Department of Justice on suspicions of fraud and stock
    manipulation.
    3
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    company in 2010, which eventually led to Appel’s family and friends investing
    in LSI beginning in February 2011. Appel was responsible for raising at least
    $12 million in capital for LSI through outside investors.          Appel did not
    purchase or sell any shares of LSI stock.
    D. Earnest Bartlett
    Bartlett is a friend and business associate of Appel. Appel introduced
    Bartlett to LSI. A company affiliated with Bartlett, FEQ Realty, invested in
    LSI beginning in December 2010. In April 2011, FEQ Realty entered into a
    consulting agreement with LSI. Appel provided his consulting services to LSI
    as an outside consultant under FEQ Realty’s consulting agreement. Bartlett
    never purchased or sold any LSI stock.
    E. John Paul DeJoria
    DeJoria is an entrepreneur and philanthropist with an interest in
    developing clean-water solutions. He invested and lost over $11 million in LSI
    beginning in March 2011. For most of 2012, DeJoria was LSI’s primary source
    of funding. DeJoria served on LSI’s board of directors from October 2011 to
    September 2012.
    F. Jabil, Inc.
    Jabil, Inc., is not a party to the case but plays a crucial role here. In May
    2011, Jabil entered into an agreement with LSI to manufacture remediation
    equipment. The parties dispute whether the deal was done for legitimate
    purposes. Jabil is a creditor in LSI’s bankruptcy, with a claim for $9.55 million.
    By the end of evidence at trial, the trustee conceded the only damages the
    estate could recover were 1) the amount of the Jabil debt and 2) the amount of
    any gains to the defendants that the trustee could specifically link to fiduciary
    breaches.
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    G. LSI’s Bankruptcy and the District Court Proceedings
    Carey Ebert was appointed as LSI’s Chapter 7 bankruptcy trustee, and
    the matter was eventually converted into a Chapter 11 proceeding. As the
    Chapter 11 trustee, she attempted to find investors to invest in LSI and lease
    equipment to keep LSI operating. Ebert, however, was unable to generate
    enough revenue to allow the company to resume business. Ebert filed the
    operative complaint in November 2015, raising various claims against over
    twenty defendants.    With respect to the Appellants, Ebert alleged that Appel
    gained practical control of LSI and used it to perpetrate securities fraud and
    engage in insider trading; that LSI was a fraud formed for an illegitimate
    purpose;   that   Appel   and   Bartlett   made    substantial    profit   through
    manipulative conduct; and that Cohen and DeJoria joined in the conspiracy to
    profit from stock manipulation.
    By the close of evidence at trial, the lawsuit had narrowed significantly—
    numerous counts and more than a dozen defendants were dismissed. The
    claims that went to the jury were one count each of a breach of fiduciary duty
    owed to LSI against Cohen and DeJoria, and one count of aiding and abetting
    Cohen’s breach of fiduciary duty against DeJoria, Appel, and Bartlett. As
    noted above, based upon the evidence presented, the only damages remaining
    at issue were 1) the amount of the Jabil debt and 2) the amount of any gains
    to the defendants that the trustee could specifically link to fiduciary breaches.
    Appellants moved for judgment as a matter of law under Federal Rule of
    Civil Procedure 50(a) and the district court carried the motions. The district
    court then held a charge conference, at which the parties agreed to the
    following: Question 1 would determine whether Cohen and DeJoria breached
    their fiduciary duties with a “yes” or “no” answer. Question 2 would determine
    5
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    whether Appel, Bartlett, and DeJoria aided and abetted 3 Cohen’s breach of
    fiduciary duty. Question 3 limited the trustee’s damages to the following:
    Damage Element No. 1: The reasonable cash market value of
    liabilities incurred by LSI as a proximate cause of that defendant’s
    breach of fiduciary duty, which liabilities are still owed and have
    not yet been paid, if any.
    Damage Element No. 2: The reasonable market value of any gains
    to that defendant (including salaries, consulting fees, net proceeds
    from stock issuances to directors and/or officers of LSI, and other
    expenses) proximately caused by that defendant’s breach of
    fiduciary duty.
    Questions 4 and 5 would determine eligibility for and quantify exemplary
    damages. The jury found Cohen and DeJoria each committed a breach of
    fiduciary duty and Appel, Bartlett, and DeJoria aided and abetted Cohen’s
    breach. The jury assessed damages as follows:
    Defendant          Damage Element No. 1             Damage Element No. 2
    Appel                      $0                         $2.5 million
    Bartlett                    $0                         $2.5 million
    Cohen                 $6.5 million                       $400,000
    DeJoria               $1.5 million                           $0
    The jury also assessed exemplary damages of $5 million against Appel, $2
    million against Cohen, and $1 million against DeJoria. Following the jury
    verdict, all four Appellants renewed their motions for judgment as a matter of
    law.     The district court denied their motions, granted Ebert’s motion for
    3Because of our conclusions below, we do not reach the issues surrounding whether
    “aiding and abetting” a breach of fiduciary duty was a proper jury submission in this case.
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    judgment, and later denied motions for reconsideration. This timely appeal
    followed.
    II.   Discussion
    A. Ebert Lacks Article III Standing to Recover Jabil’s Damages
    Appellants argue that Ebert lacks Article III standing to recover Jabil’s
    damages under Damage Element No. 1 of the jury charge. Article III standing
    requires a plaintiff to have “suffered an ‘injury in fact,’” show “a causal
    connection” between the injury and the conduct at issue, and the injury must
    be redressable by the court. Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 560
    (1992). “[A] plaintiff must demonstrate standing for each claim [s]he seeks to
    press” and have “standing separately for each form of relief sought.”
    DaimlerChrysler Corp. v. Cuno, 
    547 U.S. 332
    , 352 (2006) (citation omitted).
    Ebert’s liability theory with respect to Cohen and DeJoria’s breaches of
    fiduciary duty focused on Jabil. 4 In her closing argument, she claimed “the
    fraud, the improper conduct, was entering into the Jabil contract in May 2011
    . . . that’s what caused the damages.” Ebert argued Jabil was misled because
    they “weren’t given access to [LSI’s] books,” and were unaware of Appel’s
    involvement or prior criminal history. As for damages, Ebert consistently
    asserted that she was seeking the amount of the Jabil debt, stating that “we
    know Jabil lost 9.5 million” and asked the jury to “forget about the other
    hundred and something creditors . . . focus on Jabil.”
    Under Damage Element No. 1, the jury was asked to assess “the
    reasonable cash market value of liabilities incurred by LSI as a proximate
    4 We note one additional point relevant only to DeJoria: DeJoria did not become a
    director at LSI until October 2011, some five months after LSI entered into the Jabil contract.
    Ebert provided no evidence that DeJoria should be liable for the damages incurred by action
    that predated his time as an LSI director.
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    cause of that defendant’s breach of fiduciary duty, which liabilities are still
    owed and have not yet been paid, if any.” But the millions of dollars awarded
    under Damage Element No. 1 represent Jabil’s injury, not LSI’s.             Jabil
    manufactured and delivered the contractually agreed upon equipment to LSI.
    LSI benefitted from the equipment, and Ebert even leased and sold the
    equipment in Chapter 11 proceedings. Moreover, LSI did not pay the invoices
    on the equipment. Therefore, LSI benefitted and even had cash available for
    other needs.
    Although we have not squarely addressed Article III standing under the
    circumstances presented in this case, Appellants note several persuasive
    authorities holding there was no Article III standing in factually analogous
    scenarios. In In re Waterford Wedgwood USA, Inc., 
    529 B.R. 599
    (Bankr.
    S.D.N.Y. 2015), the debtor “failed to contribute the full amount it owed” to a
    retirement plan it sponsored. 
    Id. at 601.
    The debtor hired an accounting firm
    to audit the retirement plan, but the firm failed to notify the debtor about the
    underfunding. 
    Id. at 601.
    The bankruptcy trustee for the debtor sued the firm
    for unpaid liabilities to the retirement plan.        Waterford held that the
    bankruptcy trustee lacked Article III standing because the debtor had not
    suffered an injury. 
    Id. at 604–05.
    The court reasoned that “the trustee alleges
    damages to the debtors, to the extent of the unpaid obligations of the debtors
    to the creditors . . . [but] the Debtor appears to have benefitted from not paying
    the required Retirement Plan contributions by gaining the use of funds that
    should have been in the Retirement Plan’s possession.” 
    Id. at 605
    (citing In re
    Am. Tissue, Inc., 
    351 F. Supp. 2d 79
    , 93–94 (S.D.N.Y. 2004) (holding that a
    debtor could not characterize its monetary gain as injury)). The Waterford
    Court went on to state that the trustee could “allege a constitutional injury. . .
    if the bankruptcy estate paid any of the shortfall.” 
    Id. at 605
    . Waterford shares
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    the factual circumstances of this case—a bankruptcy trustee sued and argued
    a debt it owes constitutes an injury, despite having made no payments. In fact,
    LSI gained even more than the debtor in Waterford because it benefitted from
    not paying Jabil’s invoice and retained and then sold the manufacturing
    equipment.
    In Reneker v. Offill, 
    2009 WL 804134
    (N.D. Tex. Mar. 26, 2009), a
    receiver for various entities sued the entities’ attorneys for negligence,
    violations of securities laws, and the consequent $36.5 million liability owed to
    investors. 
    Id. at *5.
    Citing In re American Tissue, the Reneker Court held the
    receiver lacked Article III standing because “the only harm alleged is the
    Receivership Estate’s inability to satisfy its liabilities.” 
    Id. at *6.
    The court
    held the receiver did not have Article III standing to sue for damages his clients
    did not suffer, stating “[t]he Receivership Estate’s financial inability to satisfy
    liabilities owed to investors as a result of securities-laws violations harm[ed]
    the investors,” not the receiver. 
    Id. Reneker is
    also analogous to LSI’s case;
    the receiver and bankruptcy trustee are similarly situated, while Appellants
    are similarly situated to the attorneys accused of negligence. Jabil and the
    investors in Reneker are both creditors.       In addition, the securities laws
    violations are analogous to the Jabil contract as the event the receiver and
    trustee argue caused damages. Based on the triggering events, Ebert and the
    receiver attempted to recover damages owed because of fraudulent or negligent
    conduct.
    Ebert responds that LSI suffered harm by taking on millions of dollars
    in debt. She analogizes to Norris v. Causey, 
    869 F.3d 360
    (5th Cir. 2017), to
    argue for standing. We held in Norris that “[t]he Norrises’ injury is clear: they
    lost thousands of dollars.” 
    Id. at 366.
    However, Norris is distinguishable; the
    Norrises wrote checks for $48,000, $45,000, and $1,000, but the Causeys never
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    moved forward with their end of the bargain. 
    Id. at 364.
    Here, LSI did not pay
    Jabil’s invoice but still retained Jabil’s end of the bargain, the manufacturing
    equipment. Ebert also cites Norris for the proposition that “this litigation can
    redress the loss through damages, as the judgment demonstrates.” 
    Id. at 366.
    But this argument refers to redressability, not LSI’s injury in fact, and is thus
    inapposite. 5 Accordingly, all damages awarded under Damage Element No. 1
    against any defendant must be reversed for lack of Article III standing (thus
    leaving no actual damages against DeJoria). 6
    B. A Reasonable Jury Could Find Cohen Liable for Breach of Fiduciary
    Duty Owed to LSI
    Cohen argues 7 that he is entitled to judgment as a matter of law because
    there is not legally sufficient evidence to prove he breached his fiduciary duty
    to LSI. “We review a district court’s ruling on a motion for judgment as a
    matter of law de novo.” Nobach v. Woodland Vill. Nursing Ctr., Inc., 
    799 F.3d 374
    , 377 (5th Cir. 2015) (footnote and citation omitted). When reviewing a
    district court’s denial of a post-verdict Rule 50(b) motion, we assess “whether
    a reasonable jury would not have a legally sufficient evidentiary basis to find
    for the party on that issue.” 
    Id. (quoting FED.
    R. CIV. P. 50(a)(1)). Despite our
    5  In its order denying Appellants’ post-verdict motions, the district court held there
    was sufficient evidence to support a jury finding that Appellants’ breaches of fiduciary duty
    caused the damages the jury awarded, citing Jabil’s proof of claim filed in bankruptcy court
    and the trial testimony of Jabil representatives. But this rationale only addresses what
    Jabil’s injury and damages were; it does not explain how LSI was injured.
    6 We need not address and therefore do not hold that there could not possibly be an
    Article III injury in fact stemming from Cohen and DeJoria’s breaches of fiduciary duty.
    Instead, we hold there is no Article III injury stemming from the claims Ebert asserted and
    Damage Element No. 1 of the jury instruction.
    7Ebert argues Cohen has waived this argument but is mistaken; Cohen raised this
    issue during Rule 50(a) arguments and in his Rule 50(b) motion, as the district court noted.
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    holding in Section II.A, we address this issue because it concerns damages
    awarded under Damage Element No. 2.
    Texas law required Ebert to prove: 1) that a fiduciary relationship
    existed; 2) that Cohen breached his fiduciary duty to LSI; and 3) that Cohen’s
    breach resulted in injury to LSI or benefitted him. Navigant Consulting, Inc.
    v. Wilkinson, 
    508 F.3d 277
    , 283 (5th Cir. 2007). The first element is not in
    dispute. Cohen’s fiduciary duty required a duty of loyalty and duty of care to
    LSI.
    As noted above, Ebert’s case began by alleging an elaborate pump-and-
    dump scheme of LSI’s stock and widescale fraud, but by the time the case was
    submitted to the jury, Ebert’s argument was based entirely on the Jabil
    contract:
    the fraud, the improper conduct, was entering into the Jabil
    contract in May 2011. That’s what inevitably caused this company
    to collapse, that’s what caused the damages, and that was the
    impetus of why or purpose of this fraudulent scheme was to enter
    into that Jabil contract, make a big splash, make it seem like this
    was a legitimate business when it had no hope for survival.
    Ebert provided the following evidence to support her claim: Cohen took on
    Appel as an advisor and spoke to him daily; Cohen sent Appel non-public
    information, including lists of shareholders and stock sales on a weekly basis;
    Cohen dealt personally with Jabil; prior to the Jabil contract, Cohen had not
    told anyone at Jabil about Appel’s conviction for securities fraud manipulation;
    LSI had no idea whether the machinery from the Jabil contract would work;
    LSI had no business plan, or leads to monetize the equipment from the
    contract, but Cohen and Appel drafted LSI press releases together to generate
    good news and publicize it; and while still a director, Cohen sold his stock in
    LSI for $400,000 because he “needed to have some money in the bank.”
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    Cohen contends that his conduct is protected by the business judgment
    rule. In Texas, the “rule . . . protects corporate officers and directors, who owe
    fiduciary duties to [a] corporation[] from liability for acts that are within the
    honest exercise of their business judgment and decision.” Sneed v. Webre, 
    465 S.W.3d 169
    , 173 (Tex. 2015) (citation omitted). Negligent, unwise, inexpedient,
    or imprudent actions are protected so long as “the actions [are] ‘within the
    exercise of their discretion and judgment in the development or prosecution of
    the enterprise in which their interests are involved.’” 
    Id. at 178
    (quoting Cates
    v. Sparkman, 
    11 S.W. 846
    , 849 (Tex. 1889)) (footnote omitted).          The jury
    charge, however, instructed the jury on both what is required to show a breach
    of fiduciary duty, along with the parameters of the business judgment rule.
    Given Cohen’s actions, a reasonable jury could weigh the evidence, consider
    the business judgment rule, but conclude that Cohen breached his fiduciary
    duty to LSI.
    Cohen also argues that because the existence of an attempted pump-and-
    dump securities fraud scheme would not be clear to a jury, Ebert was required
    to offer expert testimony supporting her claim. However, the case he cites,
    Fener v. Operating Engineers Construction Industry & Miscellaneous Pension
    Fund (LOCAL 66), 
    579 F.3d 401
    , 409 (5th Cir. 2009), stands for a different
    proposition: that proving a loss causation claim under § 10(b) of the Securities
    Exchange Act of 1934 requires “the testimony of an expert—along with some
    kind of analytical research or event study.” 
    Id. No such
    claim exists here.
    Even if we were to apply Cohen’s standard, Ebert did put on an expert who
    testified extensively about red flags of a pump-and-dump scheme in the
    securities industry and how LSI demonstrated a number of those traits. We
    therefore reject this argument.
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    The jury assessed damages of $400,000 against Cohen under Damage
    Element No. 2. Cohen argues there is no evidentiary support for this monetary
    amount. But Cohen himself testified that he made $557,109 in salary for his
    time at LSI and sold about $400,000 of LSI stock because he “needed to have
    some money in the bank.” None of Appellants’ lawyers objected during this
    testimony. Damage Element No. 2 allowed for damages from “the reasonable
    market value of any gains to that defendant (including salaries, consulting
    fees, net proceeds from stock issuances to directors and/or officers of LSI . . . )
    proximately caused by that defendant’s breach of fiduciary duty.”
    Considering the jury found Cohen liable for a breach of fiduciary duty
    based on an alleged pump-and-dump scheme and improperly propping up LSI
    by entering the Jabil contract for nefarious purposes, there is legally sufficient
    evidence for a reasonable jury to award $400,000 in damages.
    C. Ebert Did Not Provide Legally Sufficient Evidence to Show Appel and
    Bartlett Personally Received Gains from Stock Sales
    Appel and Bartlett were not liable for damages under Damage Element
    No. 1. On the other hand, the jury found Appel and Bartlett liable for $2.5
    million each under Damage Element No. 2 for aiding and abetting Cohen’s
    breach of fiduciary duty, which allowed the jury to award damages for the
    “reasonable market value of any gains to that defendant (including salaries,
    consulting fees, net proceeds from stock issuances to directors and/or officers
    of LSI, and other expenses) proximately caused by that defendant’s breach of
    fiduciary duty.”
    Appel and Bartlett argue that Ebert presented no evidence they received
    gains from stock sales in their individual capacity and that any evidence
    instead relates to entities affiliated with them.        Ebert cites the expert
    testimony of Robert Manz as the “critical evidence” to support Appel and
    Bartlett’s damages calculation. Manz testified that a “nominee company” is
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    one that “stands in the place of a person or another company,” and is often used
    to “hide the identity of a person or another entity.” Manz also testified that
    Appel owned more than 5% of LSI’s outstanding stock through nominee
    companies, that Bartlett owned another 1.5% of LSI through nominee
    companies, that Appel, Bartlett, and their associates earned a total of $5.1
    million of profit from LSI stock, and that FEQ Realty made $2.3 million in
    profit from LSI stock. In its denial of Appellants’ post-verdict motions, the
    district court cited Manz’s testimony to uphold the jury’s verdict.
    Through Manz’s testimony, however, Ebert tacitly admits that she
    provided evidence only for the nominee companies’ gains, not for Appel and
    Bartlett in their individual capacity. Manz’s calculations were based primarily
    on two documents: Schedule 7.B, which showed market sales of LSI stock, and
    a list of nominee companies with how many shares of LSI each owned as of
    September 9, 2011. Yet these documents only list companies and provide no
    proof of or insight into Appel and Bartlett as individuals. Ebert originally
    named a number of these entities as defendants in her lawsuit, including FEQ
    Realty, LLC, DIT Equity Holdings, Capital Growth Realty, and Wiltomo
    Redemption Foundation. But she eventually dismissed them with prejudice.
    Perhaps most significantly, Manz testified that “I don’t know exactly what you
    define as the Appel Group” and acknowledged that he had no insight on
    whether or how a company was related to Appel. Instead, Ebert’s counsel
    simply informed Manz “what constituted Appel-related companies” for the
    document.    Manz was also unable to answer questions about the various
    entities in his documents and testified that he had not tracked down the
    alleged gains to Appel and Bartlett individually.
    Because Ebert did not provide evidence against Appel and Bartlett in
    their individual capacities and the entities and companies in question were
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    dismissed with prejudice, the only way Appel and Bartlett could be liable is
    under an alter ego theory. Ebert, however, made no attempt to make such a
    showing. On appeal, she argues that a jury could impose damages based on
    Appel and Bartlett’s nominee companies because “a party cannot invoke the
    corporate form ‘as a cloak for fraud or illegality or to work an injustice,’” citing
    Matthews Construction Company, Inc. v. Rosen, 
    796 S.W.2d 692
    , 693 (Tex.
    1990).    However, even if we assumed the most generous reading of her
    corporate form arguments under Texas law, cf. Texas Business Organizations
    Code § 21.223, she provided no evidence to support piercing the corporate veil
    or any alter ego theory. Thus, Ebert did not provide legally sufficient evidence
    for a reasonable jury to find Appel and Bartlett liable in their individual
    capacities. We therefore REVERSE the damages against Appel and Bartlett
    under Damage Element No. 2, leaving no actual damages against them.
    D. Exemplary Damages
    No exemplary damages were awarded against Bartlett. In light of our
    holding leaving no actual damages against Appel and DeJoria, the judgment
    awarding exemplary damages against them must be vacated. TEX. CIV. PRAC.
    & REM. CODE 41.004(a) (requiring more than nominal damages to be awarded
    before exemplary damages can be awarded). Therefore, the only remaining
    actual damages are the $400,000 awarded against Cohen under Damage
    Element No. 2. In addition to the damages cap under Texas law (TEX. BUS. &
    COMM. CODE § 41.008(b)), the jury was instructed to consider “the character of
    the conduct involved” and “the nature of the wrong” before assessing
    exemplary damages. 8 But because portions of the “conduct” and “wrong” are
    8 Texas law requires that the trier of fact “consider the definition and purpose of
    exemplary damages as provided by Section 41.001” in making an award of exemplary
    damages. TEX. CIV. PRAC. & REM. CODE § 41.010. It further requires that the trier of fact
    15
    Case: 18-10382    Document: 00514936875       Page: 16   Date Filed: 04/30/2019
    No. 18-10382
    no longer viable as a matter of law, the jury may have awarded a different
    amount of exemplary damage against Cohen than the $2 million it awarded.
    Neither party has briefed the effect of this potential outcome on the exemplary
    damages awarded against Cohen.          We conclude that this issue should be
    addressed in the first instance by the district court following full briefing. We
    therefore VACATE the exemplary damages award and REMAND to the
    district court to consider the legal issues surrounding exemplary damages
    against Cohen in the first instance.
    III.    Conclusion
    In light of the foregoing decision, Appel, Bartlett, and DeJoria are
    entitled to judgment rendered in their favor: (1) DeJoria, because of the lack of
    proof of a recoverable injury, see Lindley v. McKnight, 
    349 S.W.3d 113
    , 124
    (Tex. App.—Fort Worth 2011, no pet.) and the corresponding vacatur of
    exemplary damages; (2) Appel, because there was no evidence of individual
    liability and the corresponding vacatur of exemplary damages; and (3) Bartlett,
    because there was no evidence of individual liability. Thus, we REVERSE and
    RENDER judgment in favor of Appel, Bartlett, and DeJoria. As for Cohen, we
    VACATE damages awarded under Damage Element No. 1, AFFIRM damages
    awarded under Damage Element No. 2, and REMAND to the district court to
    consider how our opinion impacts the award of exemplary damages.
    consider evidence relating to, among other things, the “nature of the wrong” and the
    “character of the conduct involved.” 
    Id. at §
    41.011.
    16