MOORE v. ALTRA ENERGY TECHNOLOGIES

stor filed suit, alleging the accounting firm knowingly or recklessly made material misrepresentations about the financial health of the bank and the firm intended for investors to rely on the misrepresentation. Id. In ruling for the investor, the supreme court held a direct relationship does not have to exist between the fraudfeasor and the object of his deception. Id. at 578-80.

Based on Ernst Young, Altra argues a defendant can "commit fraud indirectly when [he] makes a false representation to a third party with the intent or expectation that it be repeated to deceive the plaintiff." See id. at 578-80. In relying on Ernst ` Young, this court has previously concluded a person who makes a false representation may be liable to a third person, to whom the misrepresentation was not directly made, if the person making the misrepresentation had the intent or knowledge that it should be repeated to a third person and intended or knew the third person would act in reliance on the misrepresentation. Burroughs, 93 S.W.3d at 162. Thus, a misrepresentation made through an intermediary is actionable if it is intended to influence a third person's conduct. Ernst Young, 51 S.W.3d at 578.

The November 30 letter was signed by William C. Collins, Frost's managing director. Via his deposition, Collins testified at trial that Frost issued the letter to provide certain opinions about the finance-ability of the Chalkboard transaction. Collins stated it was Frost's opinion that the Acquirers had the ability to fund the amount of the purchase price, and Frost reached that opinion based on information from Turner and Moore. Altra's attorney asked Collins, "What information do you remember getting from either [Turner] or [Moore] that the acquisition was financeable under a variety of financing plans?" Collins responded:

Well, we looked at — as we discussed in the financeability letter, we looked at a sort of financing position of the target, and we — you know, at the time — which was — also energy trading was an extremely attractive area for certain investors and financing sources that that's what — and that's how we came up with that opinion.

Although Collins stated Frost reached its opinion based on information Moore provided, Collins also testified Frost made its decision by combining Moore's information with other sources. Altra's attorney asked Collins, "Did you rely on the information received from Tracy. Turner and Paul Moore in order to give truthful representations in the financeability letter which is Exhibit No. 2?" Collins responded, "Yes, but not — not absolutely, not in — just only that information. It was also the information we received on the income statements and the balance sheet, to look at the true — you know, to look at the financial status of the operations; and that coupled with our experience in the market — and especially in the market at the time."

Collins also testified Turner and Moore provided the income statements and balance sheets, but there was no evidence, or even any allegation, that any information contained therein was false or misleading.

This case is simply not on the same footing as Ernst Young. In Ernst Young, the plaintiff relied on the opinion of the alleged fraudfeasor — the accounting firm — which was passed to the plaintiff through a third party — the bank. 51 S.W.3d at 575-76. In this case, Altra purports to rely on the opinion of Frost — a third party. And there is no evidence Frost's opinion was based on any misrepresentation to Frost by Moore. The record is simply devoid of any misrepresentation by Moore contained in either the Frost letter itself or the information Moore allegedly provided Frost for the purpose of preparing the letter.

Besides, Altra's complaint is that Moore misrepresented his willingness to fund the deal. The Frost letter offers no opinion about willingness or intent, but merely about Moore's ability to fund the deal. Because there is a complete absence of a vital fact — a misrepresentation from Moore — and the evidence offered in an effort to prove the vital fact is less than a scintilla, we conclude the evidence supporting Altra's fraud claim against Moore is legally insufficient. See City of Keller, 168 S.W.3d at 810; See Ford Motor Co., 135 S.W.3d at 601. Accordingly, we sustain Moore's second issue, and render a judgment that Altra take nothing by way of its fraud claims against Moore.

Collins also testified that he did not have the understanding that Moore would finance the deal himself. When asked if he knew who would provide the financing on this particular deal, Collins replied, "No, we did not." Collins also testified the Acquirers as a group could finance the deal, but he believed Maroon Bells could not finance the deal alone.

DGO's Fraud Claims

Moore also challenges the legal sufficiency of the evidence relating to DGO's fraud claims. Moore argues the jury's common-law-fraud finding cannot withstand a legal-sufficiency analysis because he never made a false statement to DGO, he never intentionally or recklessly misrepresented his intention to finance the sale, and DGO never reasonably relied on Moore's alleged representation. Moore asserts the only evidence that Moore made statements to DGO concerning financing the transaction was his alleged statements to Fuqua. He claims even if he made those statements, DGO did not prove he intended to actually finance the deal. Additionally, he argues DGO did not reasonable rely on. his alleged statements because he never spoke with either David or Daniel Ownby, and he never signed any documentation about the transaction. DGO contends, however, that the evidence at trial demonstrated that Moore made several misrepresentations to both DGO and Fuqua.

Moore challenges both of DGO's fraud claims because it is unclear from the trial court's final judgment whether DGO recovered under common-law fraud or statutory fraud. Question 12 of the jury charge provides, "If your answer to Question 5 [common-law fraud] or 6 [statutory fraud] is `Yes,' then answer the following question. What sum of money, if any, if paid now in cash, would fairly and reasonably compensate DGO, Inc. for the damages, if any, that resulted from such fraud?" Moore objected to Question 12, but not because the question did not make the jury specify which type of fraud it found Moore committed. Thus, if We conclude the evidence supporting DGO's common-law-fraud claim is legally sufficient, we need not discuss whether the evidence of statutory fraud is also legally sufficient because the jury could have assessed damages solely on common-law fraud.

The common-law-fraud question submitted to the jury is the same as the question submitted to the jury for Altra's fraud claim against Moore, except for the definition of misrepresentation. For DGO's fraud question, "misrepresentation" is defined "as a promise of future performance made with an intent, at the time the promise was made, not to perform as promised." The jury affirmatively answered that Moore committed fraud against DGO.

"A promise of future performance constitutes an actionable misrepresentation if the promise was made with no intention of performing at the time it was made." Formosa Plastics Corp. USA v. Presidio Eng'rs Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). Proving that a party did not intend to perform "is not easy, as intent to defraud is not usually susceptible to direct proof." Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 305 (Tex. 2006); see also Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774-75 (Tex. 2009) (per curiam). But intent is a question for the fact finder because it depends on the witnesses' credibility and the weight given to their testimony. Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986). The fact that the party did not perform does not alone indicate the party did not intend to perform when the promise was made. Id. at 435. Often intent is derived from "[s]light circumstantial evidence of fraud." Id. Additionally, although a party's intent is determined at the time of the representation, the intent may be inferred from a party's acts after the promise is made. Id. Hence, one piece of circumstantial evidence is a party's denial he ever made a promise. Id.

Multiple witnesses, including Turner, Moore's only witness, testified Moore gave the impression he was very interested in the transaction, even after he first discussed the deal with David Ownby. There was testimony at trial that Moore visited Altra's facilities to inspect the Chalkboard operations. Daniel Ownby testified Moore continued to request information about Altra into late 2001. Daniel also stated Moore requested that his "financial guy" review everything to make sure the deal was sound. Daniel testified DGO would not have gone forward with the deal with Altra unless DGO believed it had a deal with Moore. He stated, "We signed Amendment 3 to keep the deal going based on the assurance that [Moore] gave us." David Ownby stated he signed the original agreement and the third amendment because Moore continuously expressed his interest and even suggested ways to continue the contract. Like his son, David Ownby testified he relied on Moore's representations, and he would not have signed the deal under any other circumstances.

Fuqua also testified David signed the agreement with Altra because David understood there was going to be financing for the deal from Moore. During Fuqua and David's meeting with Altra, they both testified they stepped into the hall to call Moore about the transaction. Fuqua stated he called Moore to explain the situation, and he said, "You know, we're at a point in time where Altra is demanding we sign, we don't have the money, we need the money from you before we can sign . . . we're not going to sign unless we have the money." Fuqua testified Moore then said, "Tell David to sign the document . . . I will fund the deal." After Moore did not deliver the funds, Fuqua stated he asked Larry Ramming, a, mutual business associate of Moore and Fuqua, to call Moore and put the call through to Fuqua. Fuqua testified he contacted Moore three times, and each time Moore reaffirmed he was going forward with the deal. According to Fuqua, Moore told him, "This deal will be done . . . the money will flow, I'll get this done." Additionally, when Ramming testified, he stated he overheard the phone conversation between Fuqua and Moore in which Moore said he would fund the money for the Altra deal. When questioned at trial, Moore stated he never intended to fund the entire deal, but he also testified he never expressed this sentiment to DGO or its representatives.

DGO also points to the Frost letter as evidence that Moore was interested in financing the transaction as well as evidence that Moore had reason to expect DGO would act in reliance on the representation because DGO was named as one of the Acquirers in the letter. See Ernst Young, 51 S.W.3d at 580 (concluding "the reason-to-expect standard requires more than mere foreseeability; the claimant's reliance must be `especially likely' and justifiable, and the transaction sued upon must be the type the defendant contemplated").

In his brief, Moore states the trial testimony reflected "an old fashioned swearing match." Throughout Moore's testimony, he denied all the allegations against him and denounced the testimony from Altra's witnesses as completely false. But in evaluating the legal sufficiency of the evidence, we view all evidence in the light most favorable to the challenged finding-and indulge every reasonable inference that would support it. City of Keller, 168 S.W.3d at 822. Additionally, we do not step into the shoes of the fact finder because the fact finder is the only judge of the witnesses' credibility. See id. at 819; Texoma Adver. Co., L.P. v. Siblings, L.L.C., No. 14-08-00602-CV, 2009 WL 1660619, at *5 (Tex.App.-Houston [14th Dist.] June 16, 2009, no pet.) (mem. op.). It is the fact finder's responsibility to weigh the hotly contested evidence, and although the testimony differs, we will not second-guess the jury's credibility assessment or the weight the jury gives the witnesses' testimony.

Here, there is more than a scintilla of evidence that would enable reasonable and fair-minded people to differ in their conclusions as to the existence of a vital fact. See Ford Motor Co., 135 S.W.3d at 601. The evidence summarized above, when viewed in the light most favorable to the challenged finding, is legally sufficient to support the trial court's judgment in this case. See City of Keller, 168 S.W.3d at 827. Because we conclude there is legally sufficient evidence to support DGO's common-law claim, we will not address Moore's complaint about DGO's statutory claim. Accordingly, we overrule Moore's third and fourth issues.

See supra note 3.

DGO's Promissory-Estoppel Claim:

Moore argues DGO's promissory-estoppel claim fails for the same reasons as DGO's fraud claims — the evidence is legally insufficient to prove Moore "promised" to fund the transaction or that DGO reasonable could rely on any alleged promise. DGO contends Moore, through his actions and words, promised to pay the break-up fee and fund the transaction. Furthermore, DGO argues Moore's significant interest in the transaction and promise to "fund the deal" led DGO to reasonably rely on Moore's promise.

In the jury charge, Question 4 inquired, "Did DGO, Inc. substantially rely to its detriment on Paul Moore's promise to fund, if any, and was this reliance foreseeable by Paul Moore?" The jury affirmatively answered that Moore made promises to DGO, and it was reasonable for DGO to rely on these promises. Thus, to prevail on its promissory-estoppel claim, DGO had to prove: (1) Moore made a promise to DGO; (2) DGO reasonably relied on the promise to its detriment; and (3) DGO's reliance was foreseeable by Moore. See English v. Fischer, 660 S.W.2d 521, 524 (Tex. 1983); Sandel v. ATP Oil Gas Corp., 243 S.W.3d 749, 753 (Tex.App.-Houston [14th Dist] 2007, no pet.).

DGO correctly asserts we only need to address the first two elements of promissory estoppel because Moore did not challenge the third element. See Tex.R.App. P. 38.1(i) (discussing the party must properly brief each issue). Thus, we will focus our discussion on whether (1) Moore made a promise to DGO and (2) DGO reasonably relied on that promise.

The abovementioned common-law-fraud evidence is the same evidence DGO used to prove its promissory-estoppel claim. Like the first and last elements of fraud, the jury found Moore informed DGO it would fund the deal with Altra, and DGO reasonably relied on this promise. Again, although the witnesses' stories differ, it is the fact finder who judges their credibility. See City of Keller, 168 S.W.3d at 819; Texoma Adver. Co., L.P., 2009 WL 1660619, at *5. Based on the analysis above, when viewed in the light most favorable to the challenged finding, we conclude the evidence supporting DGO's promissory-estoppel claim is legally sufficient to support the verdict. See City of Keller, 168 S.W.3d at 827. Thus, we over-rule Moore's fifth issue.

III

Having addressed Moore's legal-sufficiency arguments, we now return to his primary complaint. In his first issue, Moore complains the trial judge erred because he neither realigned the parties nor equalized the peremptory strikes between the sides. Specifically, Moore contends Altra and DGO were not antagonistic; therefore, they should have been aligned on the same side and together given the same number of peremptory strikes as Moore. Second, Moore complains even if Altra and DGO were antagonistic, the trial court abused its discretion by failing to align them because the degree of antagonism was minimal. Finally, Moore argues if we conclude an error occurred in failing to align the parties or in apportioning the strikes, reversal is required because the error caused the trial to be materially unfair. Both Altra and DGO contend they are not aligned because Altra's active pursuit of its breach-of-contract claim against DGO clearly demonstrates the antagonism between them. Additionally, during voir dire, Altra argued its fraud claim against Moore differed from DGO's fraud claim against Moore; therefore, the parties were factually adverse.

Generally, each party in a civil action in district court is entitled to six peremptory strikes. Tex.R. Civ. P. 233. But in a multiparty case, before allocating peremptory challenges, it is the trial court's duty to decide whether any of the litigants aligned on the same side of the docket are antagonistic with respect to any issue submitted to the jury. Id.; Garcia v. Cent. Power Light Co., 704 S.W.2d 734, 736 (Tex. 1986); Van Allen v. Blackledge 35 S.W.3d 61, 64 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). The term "side" is not synonymous with `party,' `litigant,' or `person.' Rather `side' means one or more litigants who have common interests on the matters with which the jury is concerned. Tex.R. Civ. P. 233; Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 917 (Tex. 1979). If there is no antagonism between litigants on the same side, then each side must receive the same number of strikes. Garcia, 704 S.W.2d at 736.

Whether antagonism exists is a question of law for the trial court. Garcia, 704 S.W.2d at 736. We review questions of law de novo. See El Paso Natural Gas Co. v. Minco Oil Gas, Inc., 8 S.W.3d 309, 312 (Tex. 1999). In reviewing antagonism, the Texas Supreme Court has concluded that the pleadings alone are not the only factor for courts to consider. Garcia, 704 S.W.2d at 736-37; Dunn, 592 S.W.2d at 919. To determine if antagonism exists, the trial court must also consider information disclosed by pre-trial discovery, information and representations made during voir dire, and any other information brought to the attention of the trial court before the parties exercise their peremptory strikes. Id. at 737; see Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 5 (Tex. 1986) (op. on reh'g). Although parties may have cross-claims or other causes of action against each other, other information brought to the trial court's attention can overcome any antagonism evinced in the pleadings. Garcia, 704 S.W.2d at 737. The trial court's antagonism ruling must occur before the exercise of peremptory strikes, but after the litigants complete voir dire. Id. at 737; Dunn, 592 S.W.2d at 919.

It is also the trial court's duty, after a litigant's timely motion, to equalize the number of peremptory strikes so that any litigant or side is not given an unfair advantage as a result of the alignment and number of peremptory challenges. Tex.R. Civ. P. 233; Van Allen, 35 S.W.3d at 64. The nature and degree of the antagonism, and its effect on the number of strikes allocated to each side or litigant, are matters left to the trial court's discretion. Webster v. Lipsey, 787 S.W.2d 631, 638 (Tex.App.-Houston [14th Dist.] 1990, writ denied). We review and consider only the information the trial court knew at the time it allocated the peremptory strikes to decide whether the trial court abused its discretion. Am. Cyanamid Co. v. Frankson, 732 S.W.2d 648, 653 (Tex.App.-Corpus Christi 1987, writ ref'd n.r.e.). A trial court does not abuse its discretion if its decision is based on a reasonable assessment at the time the challenges were made. Id. at 661 (op. on reh'g). But if the trial court ignored the parties' posture, or overlooked or misconstrued a vital factor, then its decision should be reversed as an abuse of discretion. Id. The goal is not to give each side exactly the same number of strikes, but to prevent one side, comprised of parties who are adverse on certain factual matters yet united against the other side generally, from controlling jury selection. See Dunn, 592 S.W.2d at 920. The Texas Supreme Court has concluded "in most cases a two-to-one disparity between sides would approach the maximum disparity allowable [When] the disparity between strikes allowed the two sides did not exceed a two-to-one ratio, courts have held that there was no abuse of discretion." Id.

Both Altra and DGO argue Moore did not move to equalize the peremptory strikes, but only to align the parties; therefore, Moore failed to preserve the issue for appeal. See Tex.R.App. R. 33.1(a). From the context of the voir-dire testimony, however, it is apparent that Moore wanted the trial court to align the parties and equalize the strikes. It is equally apparent that the trial court understood what Moore sought.

If the trial court errs, we must determine whether the error resulted in a trial that was materially unfair. Garcia, 704 S.W.2d at 737; Dunn, 592 S.W.2d at 920. We must examine the entire record during the harm analysis. Garcia, 704 S.W.2d at 737; Dunn, 592 S.W.2d at 920. Courts have concluded that if the parties have collaborated on the exercise of peremptory strikes such that no double strikes are made, this is some evidence that the parties have used their positions unfairly. Lopez v. Foremost Paving, Inc., 709 S.W.2d 643, 645 (Tex. 1986); see Van Allen, 35 S.W.3d at 65. Additionally, when the trial is hotly contested and the evidence is sharply conflicting, the error from an improper allocation of peremptory challenges results in a materially unfair trial without showing more. Garcia, 704 S.W.2d at 737; Dunn, 592 S.W.2d at 920; Van Allen, 35 S.W.3d at 66.

The Corpus Christi court of appeals in Pojar v. Cifre notes the trend for courts in reviewing harm is to "focus on whether the trial was `hotly contested' and the evidence `sharply conflicting,' rather than on the extent to which an unfair advantage was actually created by the allocation of challenges." 199 S.W.3d 317, 332 (Tex.App.-Corpus Christi 2006, pet. denied). In Pojar, the court noted it is hard to imagine a jury trial that is not "`hotly contested'"; thus, it appears the harmless-error rule has "become a virtual rule of automatic reversal." Id. This court, however, follows the general rule finding harm only if there is an actual showing that the trial is "hotly contested" and the evidence is "sharply conflicting." See Van Allen, 35 S.W.3d at 66.

In its brief, Altra contends there is antagonism because the pleadings demonstrate it had a claim against DGO, the claim was submitted to the jury, and Altra questioned the jurors only about its claims against DGO and Moore. DGO specifically contends the pleadings indicate there is antagonism between itself and Altra, the issue was submitted to the jury, and there was a common strike between DGO and Altra. Additionally, during oral argument, Altra and DGO argued antagonism can be gleaned from the fact there was an ongoing dispute about attorney's fees between Altra and DGO, Altra still had the burden to prove DGO breached the contract, in its pleadings DGO asserted affirmative defenses against Altra's breach-of-contract claim, and there is a judgment against DGO relating to Altra's breach-of-contract claim. Moore acknowledges Altra's breach-of-contract claim against DGO, but he complains Altra and DGO joined together "to blame Moore for their failure to close the sale from Altra to DGO." Moore points this court to the voir-dire testimony and information known to the trial judge before the parties exercised their strikes to show how Altra and DGO were not antagonistic but aligned on the same side.

Although Altra argues it asked questions concerning only its claims against Moore, it is apparent from the voir-dire testimony Altra also inquired about DGO's claims against Moore.

The one common strike between Altra and DGO was a juror that the court had already struck on the record for cause.

Moore also seeks to rely on information developed after the parties' exercised their peremptory strikes, but as Altra and DGO note in their briefs, we can review only the information the trial court had before the exercising of strikes. See Garcia, 704 S.W.2d at 737.

Moore relies on Diamond Shamrock Corp. v. Wendt for the proposition that when the trial court misallocates the number of peremptory strikes, one side can acquire an "unfair advantage." 718 S.W.2d 766, 770 (Tex.App.-Corpus Christi 1986, writ ref'd n.r.e.). In Diamond Shamrock, Wendt's prized bull, "Superman 1024," died on Medina Valley A.I. Laboratory's premises after Medina's employees injected it with a Diamond Sham-rock-manufactured insecticide. Id. at 767. Wendt then sued Medina and Diamond Shamrock and received a judgment against both parties. Id. At trial, the trial court refused Diamond Shamrock's request that Wendt and Medina be aligned on the same side, and instead allocated twelve peremptory strikes to Wendt and six. each to Diamond. Shamrock and Medina. Id. at 768. On appeal, Diamond Shamrock complained Wendt and Medina should have been aligned and together received the same number of peremptory strikes as it did. Id. at 768. The Corpus Christi court of appeals examined the voir-dire testimony to determine if there was any antagonism between Wendt and Medina. Id. at 768-69.

The court noted. Wendt and Medina had an apparent common interest, which was to blame Diamond Shamrock for the bull's death. Id. at 769. When Wendt discussed gross negligence and punitive damages with the venire panel, it mentioned only Diamond Shamrock and not Medina. Id. Wendt and Medina's common theme throughout the voir dire was that Diamond Shamrock's chemical killed Superman. Id. Diamond Shamrock, meanwhile, blamed Medina. Id. Both Medina and Diamond Shamrock conceded Wendt was not responsible, and neither contended he should not be compensated. Id. at 768, 769. Medina never expressly denied negligence, but it did question the venire about requiring Diamond Shamrock and Wendt to prove negligence. Id. at 769.

The Corpus Christi court held "the trial court did not err in failing to align Medina and Wendt on the same side." Id. at 769. It did so after noting there was "no settlement between any of the parties," and the plaintiff "was actively seeking recovery against both defendants." Id. But the court determined that "[t]he number of peremptory challenges allotted to each litigant presents a different problem." Id. at 770. Allocating "twelve strikes to Wendt, six to Medina, whose interests were so closely identified with Wendt's and only six to [Diamond] Shamrock resulted in an un-fair advantage to Wendt," and amounted to an abuse of the trial court's discretion. Id.

The court noted that one scenario that often requires realignment of the parties is when a litigant on one side has settled with a litigant on the other side. 718 S.W.2d at 769 (citing Scurlock Oil Co. v. Smithwick, 724 S.W.2d at 5).

In the majority of the Corpus Christi court of appeals's cases, the court has decided, absent a settlement agreement between the parties, the parties can show they are antagonistic if one party is actively seeking recovery from the other party. But in Cecil v. T.M.E. Investments, Inc., the Corpus Christi court disagreed with the appellee's contention that its cross-claim established antagonism as a matter of law, even though prior cases suggested "antagonism lies in the allegation of another defendant's sole causation of plaintiff's harm." 893 S.W.2d 38, 55 (Tex.App.-Corpus Christi 1994, no pet.). The court stated, "[T]he trial court must consider all the information brought to its attention and make the antagonism determination within this broader context." Id.

Unlike some of our sister courts, this court has decided few cases concerning antagonism and realignment. See, e.g., Van Allen, 35 S.W.3d at 64-65; Webster v. Lipsey, 787 S.W.2d at 638-39; Williams v. Tex. City Refining, Inc., 617 S.W.2d 823, 826-27 (Tex.App.-Houston [14th Dist.] 1981, writ ref'd n.r.e). Our most analogous analysis of antagonism is Webster v. Lipsey. In that case, Renee Webster was injured in an accident involving a Honda ATC driven by William Lipsey. 787 S.W.2d at 634. Webster sued Lipsey's mother and Honda. Id. Honda joined Lipsey as a third-party defendant. Id. Before trial, Webster and Honda entered into a settlement to limit Webster's recovery from Honda to $7.5 million. Id. at 635. On appeal, Lipsey's mother argued that the trial court should have aligned Webster with Honda because of their common cause of action against the Lipseys or the trial court should have properly allocated the peremptory strikes. Id. at 638. Despite the settlement, this court held there was sufficient antagonism between Webster and Honda because during voir dire, Webster's attorney discussed the product defect with the venire, and Honda expressly stated it was resisting any defect finding. Id. at 639. Additionally, we noted the defective-design issue was submitted to the jury. Id.

Although courts, including this court, see Lipsey, 787 S.W.2d at 639, have looked to see whether the parties' claims were submitted to the jury, this analysis seems to contradict the rule that in reviewing antagonism, an appellate court can only review what the trial court had before it prior to making its alignment ruling. Garcia, 704 S.W.2d at 737; Dunn, 592 S.W.2d at 919. Appellate courts can consider proposed jury questions, but they should not rely on the fact a question was actually submitted to the jury because a trial court would not have known that was going to occur until later in the trial. We, therefore, will not consider this factor in our analysis.

Here, it is undisputed that Altra had a claim against DGO for breach of contract. But as the Texas Supreme Court emphasized in Garcia v. Central Power Light Co., we must consider not only the pleadings, but also information disclosed by pre-trial discovery, information and representations made during voir dire, and any other information brought to the attention of the trial court before the parties exercise their peremptory strikes. See 704 S.W.2d at 737. As demonstrated in both Lipsey and Diamond Shamrock, courts often review the information and representations the parties make during voir dire. See Lipsey, 787 S.W.2d at 638-39; Diamond Shamrock Corp., 718 S.W.2d at 768-69; see also Frankson, 732 S.W.2d at 652 (discussing the parties' statements made during voir dire as well as the direction of their voir-dire examinations); Frank B. Hall Co. v. Beach, Inc., 733 S.W.2d 251, 256-57 (Tex.App.-Corpus Christi 1987, writ ref'd n.r.e.) (discussing the information provided in the pre-trial hearing and voir dire). Moore argued in both his brief and during voir dire, however, that the trial court should also review the parties' pre-trial filings. Indeed, a review of the pre-trial information in this case reveals several similarities indicating a lack of antagonism between Altra and DGO.

First, Altra and DGO have virtually identical witness lists; the only exception is that DGO included its attorney on its list. Second, in Altra's proposed jury questions, it submits questions about whether Moore committed common-law or statutory fraud against DGO; whether Moore made a negligent misrepresentation on which DGO justifiably relied; and whether DGO substantially relied to its detriment on Moore's promise to fund the transaction. Third, Altra proposed several damages questions related to DGO's claims against Moore. Fourth, Altra's and DGO's "Tenders from Deposition of Paul Moore," "Tenders from Deposition of Tracy Turner," and "Tenders from Deposition of William C. Collins, II" are exactly the same. Altra's and DGO's motions in limine are also virtually identical. Finally, in Altra's "Brief in Support of Exclusion of Prior or Subsequent Contracts of Defendant," which is included among its pre-trial filings, Altra never mentions its claim against DGO in the factual background or even charges that DGO failed to abide by the contract." Although Altra notes DGO signed an agreement to purchase Chalk-board, Altra focuses not on its claims against DGO, but on its claims — and DGO's claims — against Moore.

It is also remarkable how DGO's and Altra's pre-trial submissions evolved with the passage of time. DGO and Altra were first required to comply with the trial court's trial-preparation order in September 2003, and then again in April 2004, both before Moore was a party to the lawsuit. The last set of trial-preparation materials was filed in February 2007, after Moore had been added as a party. The first two sets of submissions reflected a stark antagonism between Altra and DGO at that time. Specifically, the proposed jury questions DGO submitted in 2003 and 2004 included multiple affirmative defenses to Altra's breach-of-contract claim. But in its final pre-trial materials, filed after Moore had been added as a party, DGO submitted none of its affirmative defenses. DGO continued to include the defenses in its pleadings — a point DGO cites as proof it was still antagonistic toward Altra. But by not including the defenses in its proposed jury charge, DGO abandoned them. See Akin v. Dahl, 661 S.W.2d 911, 913 (Tex. 1983) (stating that an affirmative defense not submitted to the jury is waived); see generally Tex.R. Civ. P. 279. Thus we do not consider DGO's defenses as evidence of antagonism between it and Altra. Indeed, the exclusion of the defenses from DGO's proposed jury charge is further evidence that DGO and Altra were not in fact antagonistic.

The litigation began simply enough in June 2002 when Altra sued DGO and its principals, David and Daniel Ownby. In 2003, Altra added Fuqua and his law firm, and then Maroon Bells about a year and half later. DGO and Fuqua then brought in Moore. Altra made its first claims against Moore in its Ninth Amended Petition in May 2005.

In 2006, Altra reached settlements with the Ownbys, Fuqua, and Fuqua's law firm and dismissed its claims against them. The only parties remaining at the time of trial were DGO, Altra, and Moore.

We next turn to the parties' voir-dire examinations for evidence of antagonism. During his examination, Altra's attorney told the venire panel, "[W]e had a contract with [DGO], and we are suing them for breach of contract because the sale did not go through." Altra's counsel then briefly described the written contract and explained the liquidated damages of $1.25 million. He then added: "Simple as that. We had a contract, they breached it. We're suing [DGO] for the money." Altra then spent the remainder of its time discussing its fraud claim against Moore.

DGO's attorney began his voir-dire examination this way:

[Altra's attorney] explained to you a little bit about this case, and told you that this case was over a contract to purchase Altra, and D.G.O. was the company that contracted to purchase Altra and that is a fact. As part of that, there are certain funds that were required to be undertaken as a part of that contract. That funding was to be provided by Mr. Moore, Mr. Paul Moore.

DGO's attorney did not dispute the existence or terms of the contract, or deny that DGO had breached the contract. Instead, he briefly noted that Altra had sued DGO for breach of contract, and then immediately turned his focus on Moore. He discussed oral promises with the venire panel, but only after noting that "[Altra's attorney] spoke a little bit about oral promises, and I know that some of you had some strong feelings about whether a contract had to be in writing." He mentioned Altra's contract claim against DGO only one other time:

Well, we have two claims in this case: we're defending a claim against Altra for breach of contract but we also have a

D.G.O. claim against Mr. Moore, what's called promissory estoppel . . . 1 If you make a promise and somebody relies upon that promise, and you don't live up to! it and they take action in reliance on that promise, and then they suffer damages . . . Does anyone have a problem with that type of legal claim in the absence of a written contract?

Once the general voir-dire examinations were complete, the trial court called in some of the venire members for individual examinations. Only Altra's attorney and Moore's attorney asked the venire members any questions at this time; Altra's attorney's first question concerned whether the potential juror could follow: an instruction that might lead to DGO recovering damages for reliance on a broken promise. Altra's counsel then repeatedly asked jurors about oral promises, reliance, and contracts not in writing, even though its contract with DGO was in writing. At one point during voir dire, the trial judge seemed confused about Altra's claims and even asked its attorney if Altra had a breach-of-contract claim in the case. After Altra's attorney responded, "Yeah," the following discussion occurred:

The Court: Wait a minute. Hold up.

[Altra's attorney]: There's a promissory-estoppel claim left in the case that D.G.O. has.

[DGO's attorney]: That's our claim,

Your Honor.

The Court: Okay so, because I'm not feeling well today and because I'm probably even slower than normal, was that a yes or no?

[Altra's attorney]: When you — I hate to be lawyer-like, but when you say do you have a breach of contract claim in this case: Yes, we do, against D.G.O.

[Moore's attorney]: And they're a party to the contract and there's a claim in writing; so, there's no claim of contract.

The Court: Which is what I was getting to.

[Altra's attorney]: But there is a party in this case that does have a claim based upon an oral promise and that's D.G.O. on promissory estoppel theory, whole foundation theory can be based upon oral representation.

The Court: That's different from the contract theory. We've been talking to these jurors about written contracts and agreements and I agree with all that, but that's a different scenario.

[Altra's attorney]: My question has been narrowly tailored to promissory estoppel.

The trial judge moved on, and Altra continued to ask questions concerning oral promises and whether contracts needed to be in writing — questions "narrowly tailored to promissory estoppel."

Altra, of course, sued no one for promissory estoppel. The only promissory-estoppel claim is DGO's against Moore. From this exchange, Altra appears to be arguing DGO's promissory-estoppel claim for DGO, focusing oh oral promises in unwritten contracts. In its brief, Altra claims these "questions were about oral promises to perform, which were relevant to Altra's fraud claim against Moore." But during voir dire, Altra's attorney told the trial judge his questions were "narrowly tailored to promissory estoppel." Litigants who are antagonistic toward each other do not spend valuable voir-dire time advocating the viability of the opponent's claims. Altra's attorney's voir-dire examination in support of DGO's promissory-estoppel claim is evidence the two parties were cooperating and were not antagonistic.

The following is an example of type of question Altra's attorney was asking potential jurors: "Assume at the close of evidence in the case the judge asks you a question that allows somebody to recover damages based upon a broken oral promise, will you be able to render your verdict based upon the evidence or would you unequivocally require a contract in order to render a verdict in the case?"

Shortly after the trial judge asked about Altra's breach-of-contract claim, Moore's attorney moved to align the parties. In the motion, Moore's attorney stated Altra and DGO had submitted the same motions in limine, same witness lists, and same depositions. Moore urged that DGO's attorney never argued anything separately from Altra's counsel, and Altra's attorney had been arguing a promissory-estoppel claim which belonged to DGO. Moore's attorney also informed the trial court of a settlement agreement between Altra and David Ownby.

After Moore moved to align Altra and DGO, the trial court asked Altra's attorney how it was factually adverse from DGO. Altra's counsel responded,

On fraud theory he claims — D.G.O. claims that Paul Moore said he would fund the deal. On our fraud theory we claim that Paul Moore gave information to a bank that the deal was financeable and — could fund the deal themselves, which was a misrepresentation, false misrepresentation that we relied on and went forward with the deal so fraud, the deal is completely separate. And, of course, breach of contract is a different issue.

Noting that each party was pursuing its fraud claims under different theories, however, does not show that the parties are themselves antagonistic. Altra and DGO were not challenging each other's version of the facts; they were merely each relying on different facts to support their particular claims. Nothing about Altra's fraud claims conflicted with DGO's. The jury could adopt Altra's version of the facts and DGO's version of the facts and they could still both win. Indeed, that is exactly what happened. Unlike in Lipsey, DGO never expressly denied it breached the contract. Nor did DGO state it should not have to pay damages based on the breach. See 787 S.W.2d at 634. This case is more analogous to Garcia, as both Altra and DGO were blaming Moore for the failure of the deal. See Scurlock Oil Co., 724 S.W.2d at 5 (citing Garcia, 704 S.W.2d at 736). Even though Altra asserted a breach-of-contract claim against DGO, information disclosed to the trial court by pre-trial discovery, information and representations made during voir dire, and any other information brought to the trial court's attention, including the lack of antagonism gleaned from the pre-trial filings, overcame any antagonism evinced in the pleadings. See Garcia, 704 S.W.2d at 737. As a matter of law, the trial court should have aligned Altra and DGO and given each side the same number of strikes.

Altra and DGO both argue that even if the trial court should have aligned the parties, the error was harmless. But as we have held in prior cases, when the trial is hotly contested and the evidence is sharply conflicting, the error from an improper allocation of peremptory challenges results in a materially unfair trial without showing more. Van Allen, 35 S.W.3d at 66. There was a unanimous verdict, but there were also denied motions for summary judgment, thirteen questions submitted to the jury, and a denied motion for a directed verdict. See Marcum, 2008 WL 2388073, at *4 (citing Dunn, 592 S.W.2d at 921). Altra and DGO contend the trial was not "hotly contested" and the evidence was? riot "sharply conflicting." A review of the record proves otherwise. Accordingly, we sustain Moore's first issue.

Factors that indicate a hotly contested trial can include whether the verdict was unanimous, the number of questions submitted to the jury, and whether there was a motion for an instructed verdict or motion for summary judgment. Marcum v. Marcum, No. 01-04-01062-CV, 2008 WL 2388073, at *4 (Tex. App.-Houston [1st Dist] June 12, 2008, no pet.) (mem. op.) (citing Dunn, 592 S.W.2d at 921). In Van Allen, we concluded if the evidence was "sharply conflicting" then nothing more was needed to show reversible error. 35 S.W.3d at 66. Nevertheless, we noted that there was a motion for summary judgment, which was denied; twenty-one questions submitted to the jury; and a motion for a directed verdict, which was denied. Id.

* * *

For the foregoing reasons, we reverse the trial court's judgment, render a take-nothing judgment in favor of Moore on Altra's fraud claim, and remand for a new trial in accordance with this opinion on the remaining claims.