Swinnea v. ERI Consulting Engineers Inc.

OPINION ON REMAND

Mark Swinnea sold his fifty percent interest in ERI Consulting Engineers, Inc. (ERI) to Larry Snodgrass, the other shareholder in the close corporation. Thereafter, this suit arose. A bench trial ensued, and the court determined that Swinnea breached his fiduciary duty, committed fraud, and engaged in a conspiracy with Brady Environmental, Inc. The trial court awarded ERI and Snodgrass over a million dollars in damages, as well as attorney’s fees. It also awarded Snodgrass one million dollars in exemplary damages. On appeal to this court, we rendered judgment that ERI and Snodgrass take nothing. See Swinnea v. ERI Consulting Eng’rs, Inc., 236 S.W.3d 825 (Tex. App.-Tyler 2007), rev’d in part, 318 S.W.3d 867 (Tex. 2010). The supreme court reviewed the case, affirming our determination that ERI and Snodgrass should take nothing on their conspiracy claims, but reversing our judgment as to the monetary awards for the remaining claims. That court remanded the case to us for further review. Because the evidence does not support the total lost profits award, we suggest a remittitur of a portion of that award. Additionally, we affirm the award of exemplary damages, and remand the case to the trial court for further consideration.