Gibson Herod Law recently secured a comprehensive appellate victory in the Court of Appeals for the Fifth District of Texas at Dallas on behalf of Copper Creek Distributors, Inc. (CCDI) and Jose Doniceth Escoffie. In a memorandum opinion on remand, the court reversed the trial court’s judgment and granted relief on every principal issue presented.
The opinion is worth examining not only for its outcome, but for what it reinforces about how Texas appellate courts treat unsupported liability theories, defective jury instructions, and damages models built on assumption rather than evidence.
The appellate court’s disposition addressed each component of the adverse judgment:
Texas law affords significant protection to the corporate form. Piercing the corporate veil on an alter ego theory requires more than a showing that an individual owned, managed, or made decisions for a closely held company. It requires evidence that the individual and the entity operated with such unity that separateness ceased to exist, and that holding only the corporation responsible would result in injustice.
Plaintiffs frequently attempt to satisfy this standard by cataloging ordinary indicators of ownership and control — signing authority, decision-making, overlapping roles. Those facts describe how most closely held businesses function. They do not, standing alone, establish alter ego liability.
When the appellate court renders judgment rather than remanding, it signals that the evidentiary gap could not be closed on retrial. For business owners and officers who find themselves named individually in commercial disputes, that distinction matters enormously.
A spoliation instruction permits a jury to infer that evidence a party failed to preserve would have been unfavorable to that party. It is one of the most powerful instruments in a trial court’s charge, and Texas law treats it accordingly — it is reserved for cases where a party had a duty to preserve evidence, breached that duty, and did so in a manner that justifies the sanction.
Submitted improperly, the instruction does not merely add a stray sentence to the charge. It invites the jury to fill evidentiary gaps with adverse assumptions, and it can influence findings across unrelated issues. That is precisely why appellate courts scrutinize these instructions and why an abuse of discretion in submitting one supports reversal.
Perhaps the most broadly applicable holding concerns damages. The court found the plaintiff’s damages models speculative, lacking factual support, and legally insufficient to sustain the awards.
Legal sufficiency review asks whether the evidence would enable reasonable jurors to reach the verdict under review. A damages calculation that rests on estimates, projections, or assumptions not tied to record evidence does not satisfy that standard, regardless of how confidently it is presented at trial. Texas courts have consistently held that damages must be established with reasonable certainty and supported by objective facts, figures, or data.
For defendants, the practical lesson is that a damages model should be challenged early and continuously — through discovery, through expert challenges, through objections that preserve the issue, and through legal sufficiency points that survive to the appellate stage. The record on appeal is built at trial, not after it.
Remanding the theft of services and unjust enrichment claims is not a deferral of the outcome. It removes the erroneous judgment, the improper instruction, and the reversed damages figures from the case. Any retrial proceeds without the anchoring effect of the prior award and without the inference the defective instruction permitted.
That is a materially different posture than the one our clients faced before the appeal.
Appeals are not a second opportunity to try the case. Appellate courts review the record that exists, applying standards that differ meaningfully from those governing the trial court. Success on appeal depends on preservation, on precise identification of harmful error, and on framing issues in terms the reviewing court is empowered to act on.
That work is strongest when handled by lawyers who understand both sides of the process — how judgments are constructed at trial, and where they become vulnerable on review. Gibson Herod Law brings judicial and trial experience to its appellate practice, and applies the same practitioner-level precision across its litigation and transactional work.
Gibson Herod Law handles civil appeals in Texas state and federal courts, along with commercial litigation, business transactions, and asset recovery matters throughout the Dallas-Fort Worth area and across Texas.
If you are facing an adverse judgment, evaluating whether an issue was preserved, or considering how appellate exposure should shape your trial strategy, we are available to discuss your matter.
Visit gibsonherod.com to learn more.
