y

MANDATE

Court of Appeals
First District of Texas
NO. 01-11-00202-CV
CHARLES R. SADEN, Appellant
V.
BRIAN SMITH, Appellee
Appeal from the 270th District Court of Harris County. (Tr. Ct. No. 2009-00593).

TO THE 270TH DISTRICT COURT OF HARRIS COUNTY, GREETINGS:

Before this Court, on the 26th day of September 2013, the case upon appeal to revise
or to reverse your judgment was determined. This Court made its order in these words:
This case is an appeal from the final judgment signed by
the trial court on December 17, 2010. After submitting the
case on the appellate record and the arguments properly raised
by the parties, the Court holds that there was reversible error in
the trial courts judgment in that it included the unauthorized
finding that the jurys award for equitable disgorgement of
profits represented money that Charles R. Saden obtained as a
result of his acts of fraud, defalcation, and embezzlement while
acting and serving in a fiduciary capacity. There was also
reversible error in the trial courts judgment in that it permitted
duplicative recovery of actual damages for breach of contract
and breach of fiduciary duty. Accordingly, the Court
reverses the trial courts judgment insofar as it (1) finds that
Charles R. Saden committed acts of fraud, defalcation, and
embezzlement while acting and serving in a fiduciary
capacity, and (2) awards actual damages and prejudgment

interest for both breach of fiduciary duty and breach of

contract. The Court vacates all awards of money in the trial
courts judgment and remands the case to the trial court so
that Brian Smith may elect to recover actual damages for either
breach of contract or breach of fiduciary duty and so that the
trial court may enter judgment which is in accordance with
such election, which awards to Brian Smith all sums to which
he is legally entitled as a result of his election, and which does
not make unauthorized findings based on fraud, defalcation, or
embezzlement.
Finding no other reversible error in the arguments
properly raised by the parties, the Court affirms the remainder
of the trial courts judgment.
The Court orders that the appellant, Charles R. Saden,
pay one half of the appellate costs. The Court orders that the
appellee, Brian Smith, pay one half of the appellate costs.
The Court orders that this decision be certified below
for observance.
Judgment rendered September 26, 2013.
Panel consists of Justices Jennings, Bland, and Massengale.
Opinion delivered by Justice Massengale.
WHEREFORE, WE COMMAND YOU to observe the order of our said Court in
this behalf and in all things to have it duly recognized, obeyed, and executed.

May 2, 2014
____________________

__________________________

Date

CHRISTOPHER A. PRINE
CLERK OF THE COURT