Opinion issued May 3,=20
2007
We grant=20
appellant's motion for rehearing. See Tex. R. App. P. =
49.3. We=20
withdraw our August 31, 2006 opinion, substitute this opinion in =
its=20
place, and vacate our August 31, 2006 judgment. Appellant,=20
Interconex, Inc. doing business as InterdeanInterconex =
("Interconex"),=20
challenges the trial court's judgment entered, after a jury trial =
on the=20
sole issue of damages, in favor of appellee, Nick Ugarov, in =
Ugarov's suit=20
for breach of contract, negligence, and defamation. In five =
issues,=20
Interconex contends that there is legally and factually =
insufficient=20
evidence to support the required causal nexus between the events =
sued upon=20
and Ugarov's damages for past and future lost earnings and that =
the trial=20
court erred in denying its motion to compel arbitration, denying =
its=20
motion to set aside partial default judgment, excluding =
Interconex's=20
evidence contesting the causal link between its conduct and =
Ugarov's=20
damages and evidence of its prior settlement with Ugarov, =
informing the=20
jury that Interconex had admitted that its conduct caused Ugarov's =
inability to return to Russia, permitting Ugarov to read to the =
jury the=20
allegations from his pleadings, denying Interconex's requested =
jury=20
instruction, overruling Interconex's objections to the jury =
charge, and=20
awarding Ugarov prejudgment interest. We reverse=20
and remand for a new trial on damages.
Ugarov=20
filed suit on December 23, 2003, alleging that in October 2002, he =
was=20
relocated by his employer, ChevronTexaco ("Chevron"), from Moscow, =
Russia=20
to Houston, Texas and that Chevron hired Cendant Mobility Services =
Corporation ("Cendant") to handle his relocation. Cendant then =
"contracted=20
with [Interconex] to coordinate Ugarov's international move, =
including the=20
preparation of all documents and export permits required by the =
Ministry=20
of Culture of the Russian Federation." Interconex "inventoried and =
packed=20
[his] family's possessions . . . prior to the Russian Customs =
inspection"=20
and, during the government inspection on October 23, 2002, Russian =
authorities confiscated nine of his timepieces, "claiming that =
they were=20
not backed by the appropriate export permits." Ugarov=20
further alleged that although Interconex "had full authority to =
make=20
decisions regarding the necessity of permits regarding all the =
property,"=20
Interconex "did not take responsibility for [its] error, but =
instead=20
attempted to shift the blame to Ugarov by claiming that he had =
concealed=20
the timepieces from them during the packing process." In his=20
breach of contract claim, Ugarov alleged that he was the =
third-party=20
beneficiary of the contract between Cendant and Interconex and =
that=20
Interconex breached the contract "by failing to properly pack and=20
inventory [his] goods and by failing to acquire the proper export=20
permits." In his negligence claim, Ugarov alleged that Interconex =
had a=20
duty to exercise ordinary care in packing and moving his property =
and that=20
Interconex breached that duty. In his defamation claim, Ugarov =
alleged=20
that Interconex published defamatory accusations to both Russian =
Customs=20
officials and Chevron that Ugarov attempted to smuggle property =
out of=20
Russia. On January=20
7, 2004, Interconex received service of citation and Ugarov's =
petition=20
through its registered agent, Will Tiongson, at Interconex's =
Houston=20
offices, but it did not file an answer by its February 2, 2004 =
deadline.=20
After Ugarov filed his motion for partial default judgment, the =
trial=20
court, on March 3, 2004, entered partial default judgment "as to=20
liability" against Interconex. In its judgment, the court found =
that=20
Interconex had received service on January 7, 2004 and that =
Ugarov's=20
damages were unliquidated. The trial=20
court set a damages hearing, but before the hearing, Interconex =
filed an=20
answer on April 22, 2004. On June 4, 2004, Interconex filed a =
motion to=20
set aside default judgment, attaching Tiongson's affidavit =
testimony that=20
he "did not receive service of any papers, documents, citation, or =
process=20
by any person" in the lawsuit, but that "if for whatever reason =
[he] did=20
receive service of any such papers, [he] would have immediately =
turned=20
such documents and papers over to the attorneys for Interconex for =
their=20
proper handling and legal services." Ugarov responded to =
Interconex's=20
motion, asserting that Interconex had failed to offer any evidence =
of=20
accident or mistake or a meritorious defense and that the granting =
of=20
Interconex's motion would delay the case. On October=20
15, 2004, Interconex filed an amended motion to set aside default=20
judgment, in which it asserted that it had never received service =
in this=20
case. Alternatively, Interconex asserted that in the event the =
court found=20
that Interconex had received service of the citation and petition, =
the=20
default judgment should be set aside under Craddock v. =
Sunshine Bus=20
Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). =
Specifically,=20
Interconex asserted that its failure to answer the lawsuit was not =
intentional or the result of conscious indifference, but was due =
to=20
mistake or accident, that it had a meritorious defense to Ugarov's =
claims=20
because none of the activities giving rise to Ugarov's claims were =
performed by Interconex employees, and that setting aside the =
default=20
judgment would not cause delay or injury to Ugarov. In support of =
its=20
amended motion, Interconex filed a second amended affidavit from =
Tiongson,=20
in which Tiongson testified that he had not been served, but also=20
testified that "the signature on the citation [did] appear to be =
[his]=20
signature, but [he] still [denied] that [he] received service of =
citation,=20
or the petiton." He stated that "assuming that [he] signed the =
citation,=20
apparently a mistake or accident occurred either by the process =
server, or=20
[himself], or perhaps some other employee of either the process =
server's=20
company or Interconex" and that "[w]hatever occurred to cause =
[him] not to=20
receive a copy of the citation and petition . . . it was a mistake =
and/or=20
accident." He also stated that "if [he] had received the citation =
and=20
petition . . . [he] would have forwarded it immediately to the =
company's=20
attorneys" and that "it is [his] intention to always have any =
lawsuit with=20
which [he is] served delivered immediately to the company =
attorneys, and=20
to have a timely answer filed." In regard to Interconex's =
meritorious=20
defense, Tiongson testified that the "services which are the basis =
of the=20
claims in . . . this lawsuit may have been provided by Interdean =
AO, a=20
Russian company" and that "Interconex has no employees in Russia, =
nor does=20
Interconex exercise any control or authority over the employees of =
Interdean AO." On October 15, 2004, the trial court conducted a =
hearing on=20
Interconex's motion to set aside default judgment, and, during the =
hearing, Tiongson testified that he did not receive the citation =
and=20
petition on January 7, 2004. Although Tiongson agreed that his =
signature=20
appeared on the citation, he maintained that he did not receive a =
copy of=20
the citation and petition. During Ugarov's cross-examination of =
him,=20
Tiongson stated that "it is the fact that I signed it, that means =
I saw=20
the paper and signed it, but that was-that was it." Tiongson =
further=20
agreed that somebody handed the citation to him, that he saw it =
and signed=20
it, and that there was "no doubt" that it was his signature that =
appeared=20
on the citation. After hearing Tiongson's testimony and the =
testimony of=20
the process server, who testified that he had served Tiongson, the =
trial=20
court found that Interconex had been served as set out in the =
return.=20
The trial=20
court then instructed Interconex to "proceed with the Craddock =
v.=20
Sunshine elements." Interconex again called Tiongson, who =
testified=20
that as registered agent for Interconex, when served with papers, =
he=20
immediately sends them to Interconex's counsel and that as far as =
he knows=20
he has "always been [sic] turning over any legal documents that =
[he]=20
received" to Interconex's attorney. At the=20
conclusion of the hearing, the trial court denied Interconex's =
motion and=20
set a trial on damages for the existing trial date of October 25, =
2004.=20
Interconex then asserted that it had paid a jury fee, and the =
trial court,=20
pursuant to Interconex's request, reset the case for a December =
13, 2004=20
trial on damages. On December 1, 2004, Interconex filed an amended =
answer=20
and a motion to compel arbitration and stay judicial proceedings, =
which=20
the trial court denied. Interconex then filed a motion to =
reconsider,=20
which, after a hearing, the trial court denied. On December=20
13, 2004, the trial court conducted a jury trial on the sole issue =
of=20
damages and, based on the default judgment, submitted the =
following single=20
question to the jury: "What sum of money, if any, if paid now in =
cash,=20
would fairly and reasonably compensate Nick Ugarov for his =
damages, if=20
any, that resulted from [his] inability to return to =
Russia?"=20
(emphasis added). The only elements of damages submitted to the =
jury were=20
"[l]ost earnings that were sustained in the past" and "[l]ost =
earnings=20
that in reasonable probability will be sustained in the future." =
The jury=20
awarded Ugarov $455,000 in "past lost earnings" and $85,000 in =
"future=20
lost earnings," and the trial court rendered a final judgment in =
favor of=20
Ugarov based on the jury's verdict. We will=20
sustain a legal sufficiency or "no-evidence" challenge if the =
record shows=20
one of the following: (1) a complete absence of evidence of a =
vital fact,=20
(2) rules of law or evidence bar the court from giving weight to =
the only=20
evidence offered to prove a vital fact, (3) the evidence offered =
to prove=20
a vital fact is no more than a scintilla, or (4) the evidence =
establishes=20
conclusively the opposite of the vital fact. City of Keller v. =
Wilson, 168 S.W.3d 802, 810 (Tex. 2005). In conducting a =
legal=20
sufficiency review of the evidence, a court must consider evidence =
in the=20
light most favorable to the verdict and indulge every reasonable =
inference=20
that would support it. Id. at 822. If the evidence allows =
only=20
one inference, neither jurors nor the reviewing court may =
disregard it.=20
Id. However, if the evidence at trial would enable =
reasonable and=20
fair-minded people to differ in their conclusions, then jurors =
must be=20
allowed to do so. Id. A reviewing court cannot substitute =
its=20
judgment for that of the trier-of-fact, so long as the evidence =
falls=20
within this zone of reasonable disagreement. Id. =
Although a=20
default judgment conclusively establishes a defendant's liability, =
i.e.,=20
the "causal nexus between the conduct of the defendant and the =
event sued=20
upon," a "defaulting defendant does not admit that the event sued =
upon=20
caused any of the plaintiff's alleged injuries." Morgan v.=20
Compugraphic Corp., 675 S.W.2d 729, 732 (Tex. 1984). Proving =
that the=20
event sued upon actually caused the plaintiff's alleged injuries =
"is part=20
and parcel of proving the amount of damages to which the plaintiff =
is=20
entitled." Id. Here, the=20
trial court, based on its misapplication of Morgan, as we =
explain=20
in more detail below in our discussion of Interconex's fourth =
issue,=20
instructed the jury that it was undisputed that Ugarov was unable =
to=20
return to Russia, lost an employment opportunity, and did not earn =
as much=20
as he otherwise would have earned. Interconex argues that because =
Ugarov=20
"was under the mistaken impression that he only had to show the =
damages he=20
lost as a result of his inability to return to Russia for =
employment,=20
there understandably is no evidence that any of [Interconex's] =
conduct=20
caused [Ugarov's] inability to return to Russia." However,=20
the record reveals that Ugarov, in his testimony, detailed his =
prior work=20
history, including his significant earnings history, and explained =
that=20
his ability to speak English and Russian made him a valuable =
employee in=20
certain markets. Ugarov explained that in the fall of 2002, he was =
offered=20
a job as a project manager for the "Reforma Project," which =
involved=20
managing the development of a new planned community in Russia =
"from the=20
beginning through the life of the project." Ugarov noted that =
Reforma was=20
a new development aiming to bring Canadian technology for =
prefabricated=20
housing to Russia and to build a planned community of single =
family=20
dwellings in Russia. Reforma made him an offer of "$300,000 [per =
year]=20
after taxes and five percent bonus or commission," "the =
anticipated life=20
of the project was from three to five years," and Ugarov was =
supposed to=20
start the job on January 1, 2003. Ugarov had agreed to accept the =
job, and=20
he and a principal of Reforma had agreed to terms, including the =
salary=20
that he would receive. Ugarov=20
further explained that he could not return to Russia and that he =
did not=20
start the job as scheduled because "I was told that . . . I could =
be=20
arrested if I would show in the country . . . any time soon. . . . =
[T]hey=20
told me with time eventually it may be removed from your record, =
but . . .=20
they said at least for six months, don't go because you can be =
arrested."=20
Ugarov tried to resolve the situation by talking with =
representatives of=20
Chevron and Interconex, and he asked Reforma to hold the position =
for him.=20
Reforma agreed to hold his job open until April or March 2003, but =
Ugarov=20
finally lost the job because Reforma could not wait any longer.=20
Consequently, Ugarov began looking, "using all means that were =
available,"=20
for another job that was not in Russia, and he found a job with an =
oil=20
company in Kiev, Ukraine. He began work for this company in =
November 2003,=20
worked for approximately one and one-half of one month in 2003, =
and earned=20
"around $15,000" as compared to the $300,000 he would have earned =
with=20
Reforma. Ugarov stated that, in 2003, he lost $285,000 in earnings =
as a=20
result of losing the Reforma job. In 2004, Ugarov earned $130,000 =
from his=20
job in the Ukraine as compared to the $300,000 he would have =
earned with=20
Reforma, and lost $170,000 in earnings as a result of losing the =
Reforma=20
job. In 2005, Ugarov would have earned $130,000 from his job in =
the=20
Ukraine as compared to the $300,000 he would have earned with =
Reforma, and=20
he would lose another $170,000 in earnings in 2005 as a result of =
losing=20
the Reforma job. During =
cross-examination,=20
Ugarov=20
reiterated that he could not return to Russia for a period of=20
approximately six months once the criminal case had been opened =
against=20
him. Interconex told him that it had "official word" from Russian =
Customs=20
that a criminal case had been opened against him and that he =
should wait=20
to return to Russia until the "dust settled." Ugarov had consulted =
with=20
two attorneys and concluded that he could not risk returning to =
Russia to=20
take the Reforma job. On redirect examination, Ugarov confirmed =
that=20
Reforma was still in business as of the date of trial and was =
still doing=20
what he had originally been hired to do. Ugarov also stated that =
the real=20
estate market in Russia was booming from the date he had been =
offered the=20
job up until the time of trial, Reforma had a business plan "based =
on the=20
projected number of units" it intended to sell, and Reforma had =
made=20
accommodations to operate for at least one year without profit. =
Ugarov=20
also introduced into evidence a copy of two emails from Dmitri =
Gudkov, who=20
Ugarov contended was a representative from Interconex or one of =
its=20
affiliates, stating that Interconex had been informed by a Russian =
Customs=20
employee that a "legal case" had been opened against Ugarov. =
Thus, even=20
though the trial court misapplied Morgan, as we explain =
below,=20
Ugarov presented evidence supporting his claims that, as a result =
of=20
Interconex's breach of contract, negligence, and defamation, a =
criminal=20
case was opened against him in Russia, causing him to be unable to =
return=20
to Russia and to lose his job at Reforma. Ugarov testified that he =
had=20
accepted a specific position with Reforma, he and Reforma agreed =
to=20
certain terms of employment, including salary and duration, he =
lost this=20
job as a result of his inability to return to Russia, and Reforma =
remained=20
in business and continued to perform the job for which he had ben=20
selected. Ugarov further testified that he had sought alternative=20
employment, but it offered significantly lower compensation than =
Reforma.=20
Moreover, Ugarov provided testimony concerning the specific salary =
he=20
would have received at Reforma compared to the salary he received =
with his=20
job in the Ukraine. Interconex=20
also contends in a sub-issue that Ugarov failed to comply with =
section=20
18.091 of the Texas Civil Practice and Remedies Code, which=20
provides, If any=20
claimant seeks recovery for loss of earnings, loss of earning =
capacity,=20
loss of contributions of a pecuniary value, or loss of =
inheritance,=20
evidence to prove the loss must be presented in the form of a net =
loss=20
after reduction for income tax payments or unpaid tax liability =
pursuant=20
to any federal income tax law. Tex. Civ.=20
Prac. & Rem. Code Ann. =A7 18.091 (Vernon Supp. 2006). =
Interconex=20
asserts that Ugarov's testimony that "I would still have to pay =
taxes in=20
the United States no matter where I earn the money," establishes =
that=20
Ugarov's testimony concerning his "lost earnings" failed to comply =
with=20
section 18.091. It argues that because Ugarov failed to meet his =
burden of=20
proving net loss, we should reverse and render a take nothing =
judgment in=20
favor of Interconex. Ugarov asserts that he substantially complied =
with=20
section 18.091 and, alternatively, that section 18.091 is=20
unconstitutional. However, we=20
need not address these arguments. Interconex did not object to the =
trial=20
court's jury instruction not to consider taxes in regard to =
answering the=20
questions that would be submitted in the charge, and it did not=20
specifically object to the damages question on the ground that it =
failed=20
to comply with section 18.091. See Tex. R. Civ. P. 272, =
274.=20
Accordingly, Interconex has waived this sub-issue for our review. =
See=20
Tex. R. App. P. 33.1. We overrule=20
Interconex's first issue. In its=20
second issue, Interconex argues that the trial court abused its =
discretion=20
in denying its motion to compel arbitration because there is no =
evidence=20
that it intentionally waived its right to arbitration or that =
Ugarov was=20
prejudiced by any delay in Interconex's request for arbitration. =
Ugarov=20
asserts that the parties never agreed to arbitrate, that =
Interconex is not=20
a party to the arbitration agreement, that the "Arbitration Court =
in=20
Moscow" referred to in the arbitration agreement does not conduct=20
arbitration, and that Interconex waived its right to=20
arbitration. "A party=20
seeking to compel arbitration has the initial burden to establish =
the=20
arbitration agreement's existence and to show that the claims =
asserted=20
against it fall within the arbitration agreement's scope." =
Williams=20
Indus., Inc. v. Earth Dev. Sys. Corp., 110 S.W.3d 131, 134 =
(Tex.=20
App.--Houston [1st Dist.] 2003, no pet.) (citing Mohamed v. =
Auto=20
Nation USA Corp., 89 S.W.3d 830, 835 (Tex. App.--Houston [1st =
Dist.]=20
2002, no pet.)). If the party seeking to compel arbitration =
carries its=20
initial burden, the party resisting arbitration must then present =
evidence=20
on any defenses to the arbitration agreement. Id. =
Waiver is=20
the intentional relinquishment of a known right or intentional =
conduct=20
inconsistent with claiming that right. Jernigan v. =
Langley, 111=20
S.W.3d 153, 156 (Tex. 2003); In re Citigroup Global Mkts, =
Inc.,=20
202 S.W.3d 477, 481 (Tex. App.--Dallas 2006, combined appeal and =
original=20
proceeding [mand. pending]). As with any contractual right, a =
party may=20
waive its right to arbitration. Williams Indus., 110 =
S.W.3d at=20
135. However, because public policy favors arbitration, there is a =
strong=20
presumption against finding a waiver of the right to arbitration, =
and any=20
doubts regarding waiver are resolved in favor of arbitration. =
In re=20
Bruce Terminix Co., 988 S.W.2d 702, 704, 705 (Tex. 1998). =
Whether=20
waiver occurs "depends on the individual facts and circumstances =
of each=20
case." Williams Indus., 110 S.W.3d at 135. Waiver may be =
express=20
or implied. Id.; In re Citigroup Global Mkts, =
Inc., 202=20
S.W.3d at 481. A party may waive its right to arbitration "by =
expressly=20
indicating that it wishes to resolve the case in a judicial =
forum." In=20
re Citigroup Global Mkts, Inc., 202 S.W.3d at 481. =
Alternatively, a=20
party may waive its right to arbitrate "by taking an action =
inconsistent=20
with that right to the opposing party's prejudice." Id. =
at=20
481-82. Thus, waiver will be found only when (1) the party seeking =
arbitration has substantially invoked the judicial process and (2) =
the=20
party opposing arbitration suffers actual prejudice as a result.=20
Williams Indus., 110 S.W.3d at 135. An attempt=20
to resolve the merits and still retain the right to arbitration is =
clearly=20
impermissible. In re Citigroup Global Mkts, Inc., 202 =
S.W.3d at=20
482. Substantially invoking the judicial process has also =
been=20
described as "taking specific and deliberate actions, after the =
suit's=20
filing, that are inconsistent with the right to arbitrate." =
Williams=20
Indus., 110 S.W.3d at 135 (citing Sedillo v. =
Campbell, 5=20
S.W.3d 824, 827 (Tex. App.--Houston [14th Dist.] 1999, no pet.)). =
Examples=20
include moving for summary judgment or seeking a final resolution =
of the=20
dispute. Williams Indus., 110 S.W.3d at 135. A party may=20
establish prejudice by showing that the movant acquired access to=20
information in the court proceedings that is not discoverable in=20
arbitration. In re Bruce Terminix Co., 988 S.W.2d at 704; =
Williams Indus., 110 S.W.3d at 135. A party may also =
establish=20
prejudice by showing that it incurred costs and fees due to the =
movant's=20
actions or delay. Williams Indus., 110 S.W.3d at 135;=20
Pennzoil Co. v. Arnold Oil Co., 30 S.W.3d 494, 499-500 =
(Tex.=20
App.--San Antonio 2000, no pet.). Typically, a party must present =
evidence=20
of prejudice, and may not rely on general allegations of harm. =
See In=20
re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 =
(Tex.=20
1999); Pennzoil Co., 30 S.W.3d at 499. Here, the=20
trial court did not directly address whether a valid arbitration =
agreement=20
existed, and instead limited its findings to whether, if such an =
agreement=20
existed, Interconex waived its right to compel arbitration. We =
review the=20
trial court's finding of waiver de novo. Tex. Residential =
Mortgage,=20
L.P. v. Portman, 152 S.W.3d 861, 863 (Tex. App.--Dallas 2005, =
no=20
pet.); The Courage Co. v. The Chemshare Corp., 93 S.W.3d =
323, 337=20
(Tex. App.--Houston [14th Dist.] 2002, no pet.). In regard=20
to whether Interconex impliedly waived its right to arbitration, =
i.e.,=20
whether it acted inconsistent with its right to arbitration, we =
note that=20
Interconex was served through its registered agent on January 7, =
2004 and=20
that the trial court entered a partial default judgment "as to =
liability"=20
against Interconex on March 3, 2004. Although Interconex filed a =
motion to=20
set aside default judgment on June 2, 2004, it did not set a =
hearing or=20
file its amended motion to set aside default judgment, which =
included more=20
extensive allegations, until October 15, 2004. At the conclusion =
of the=20
October 15, 2004 hearing, the trial court denied Interconex's =
motion and=20
initially stated that it would set the damages trial for the =
existing=20
trial date, October 25, 2004. Interconex then asserted that it had =
paid a=20
jury fee and was entitled to a jury trial on damages. The court, =
pursuant=20
to Interconex's request, then reset the damages trial for December =
13,=20
2004. Interconex=20
waited until December 1, 2004, ten days prior to the damages =
trial, to=20
file its motion to compel arbitration, asserting for the first =
time that=20
the case should be sent to arbitration. In its motion to compel=20
arbitration, Interconex asserted that to handle the moving of his =
personal=20
belongings, Ugarov had entered into a written contract, which =
contained an=20
arbitration agreement. Interconex attached the contract containing =
the=20
arbitration agreement, and asserted that Ugarov's allegations were =
within=20
the subject matter of the agreement. On December=20
2, 2004, Ugarov filed a response, asserting, among other things, =
that the=20
arbitration agreement was no longer valid and that Interconex had =
delayed=20
in asserting its right to arbitration. On December 3, 2004, the =
trial=20
court signed an order denying Interconex's motion stating "that, =
by=20
failing to file an answer before default judgment was granted,=20
[Interconex] waived its right, if any, to insist on arbitration." =
The=20
court also stated in its order that it made no finding "as to =
whether or=20
not [Interconex] would have had such right if [Interconex] had =
chosen to=20
answer the lawsuit in a timely manner." Here, the=20
merits of the case regarding Interconex's liability had been =
established=20
when the trial court denied Interconex's motion to set aside the =
default=20
judgment. At that point, Interconex asserted that it had paid a =
jury fee=20
and was entitled to a jury trial on damages, and the trial court =
reset the=20
case for a trial on damages. Interconex acted inconsistently with =
its=20
right to arbitrate by failing to timely answer the lawsuit after =
it had=20
been served through its registered agent and by failing to move =
for=20
arbitration before its liability had been established. Moreover, =
it acted=20
inconsistently with its right to arbitrate when it requested that =
the case=20
be reset from its existing October trial date to a December 13, =
2004 jury=20
trial on the issue of damages. It did not file its motion to =
compel=20
arbitration until shortly before the jury trial, which Interconex =
had=20
specifically requested and caused to be set in December 2004. =
Accordingly,=20
we conclude that Interconex had substantially invoked the judicial =
process=20
before it moved to compel arbitration. In regard=20
to whether Ugarov suffered actual prejudice as a result of =
Interconex's=20
invocation of the judicial process, we note that Ugarov, in his =
response=20
to Interconex's motion to compel arbitration, attached an =
affidavit from=20
his counsel, who testified that the parties were only four days =
away from=20
a jury trial, that Ugarov had gone to the expense of flying from =
Kiev,=20
Ukraine to Houston for the sole purpose of attending the jury =
trial on=20
damages that had been requested and set by Interconex, that he and =
Ugarov=20
had been spending time getting ready for the jury trial, and that =
Ugarov=20
had been prejudiced by Interconex's utilization of the discovery =
process=20
before requesting arbitration because he did not believe that the=20
arbitration in Russia would require the advanced production of =
documents.=20
In its order denying Interconex's motion to reconsider, the trial =
court=20
found that Interconex's delay in seeking arbitration caused =
prejudice to=20
Ugarov. Thus, Ugarov established that he had incurred costs and =
expended=20
time in preparation for the jury trial on damages. Accordingly, we =
conclude that Ugarov demonstrated that Interconex's invocation of =
the=20
judicial process caused him to suffer actual prejudice. =
In support=20
of its argument that the judgment should be set aside, Interconex =
cites=20
Home Club, Inc. v. Barlow, 818 S.W.2d 192, 193 (Tex. =
App.--San=20
Antonio 1991, orig. proceeding). In Barlow, the court =
held that a=20
party who had contested jurisdiction and sought to set aside =
default=20
judgments had taken only a defensive posture and thus had not=20
substantially invoked the judicial process. Id. =
Importantly, in=20
Barlow, the court set aside the default judgments that =
had=20
originally been entered. Id. The situation presented in =
the=20
instant case is distinguishable. Here, not only did Interconex =
fail to=20
timely file an answer, the trial court found that Interconex had =
received=20
service and denied Interconex's motion to set aside the default =
judgment=20
filed pursuant to Craddock. Thus, at the time that =
Interconex=20
sought to compel arbitration, the trial court had already entered, =
and=20
affirmed, its default judgment that Interconex was liable for the =
events=20
sued upon in Ugarov's petition. See Gen. Star Nat'l Ins. Co. =
v.=20
Administratia Asigurarilor de Stat, 289 F.3d 434, 438 (6th =
Cir. 2002)=20
(holding that defendant who did not assert right to arbitrate =
until=20
seventeen months after receiving actual notice of lawsuit and =
after entry=20
of default judgment "remained idle while [the plaintiff] incurred =
the=20
costs associated with this action" waived any right to arbitrate); =
State ex rel. Barden and Robeson Corp. v. Hill, 539 =
S.E.2d 106,=20
112 (W.Va. 2000) (stating that unless defendant is able to show =
good cause=20
for default, it has waived its right to assert arbitration as =
affirmative=20
defense and that "[u]nexcused conduct that results in the entry of =
a=20
default judgment is no less of an implicit waiver of a right to=20
arbitration than any other procedural forfeiture"). Here, it =
simply cannot=20
be said, as in Barlow, that at the time Interconex filed =
its=20
motion "the litigation was still in its infancy." Id.=20
Accordingly, we hold that Interconex waived any right to =
arbitration that=20
it may have had. We overrule=20
Interconex's second issue. In its=20
third issue, Interconex argues that the default judgment should be =
set=20
aside and that the case should be remanded because Ugarov adduced =
no=20
evidence of delay or prejudice. Interconex asserts that the trial =
court=20
expressly found that it had met the first and second elements of=20
Craddock and that the only issue on appeal in regard to =
the=20
default judgment "concerns the trial court's implied finding that =
[Ugarov]=20
met his burden of proving undue delay or injury." Ugarov disputes =
that the=20
trial court found that Interconex met the first two elements of=20
Craddock, and challenges all three elements of =
Craddock=20
on appeal. A =
default=20
judgment should be set aside when the defendant establishes that =
(1) the=20
failure to answer was not intentional or the result of conscious=20
indifference, but the result of an accident or mistake, (2) the =
motion for=20
new trial sets up a meritorious defense, and (3) granting the =
motion will=20
occasion no undue delay or otherwise injure the plaintiff.=20
Craddock, 133 S.W.2d at 126. "While trial courts have =
some=20
measure of discretion in the matter, as, in truth, they have in =
all cases=20
governed by equitable principles, it is not an unbridled =
discretion to=20
decide cases as they might deem proper, without reference to any =
guiding=20
rule or principle." Id. Thus, a trial court's decision to =
overrule a motion to set aside a default judgment and grant a new =
trial is=20
subject to review for abuse of discretion. Old Republic Ins. =
Co. v.=20
Scott, 873 S.W.2d 381, 382 (Tex. 1994). As the=20
defendant seeking to set aside the default judgment, Interconex =
presented=20
Tiongson, who testified, [Counsel]:=20
And when you are served with papers as registered agent, what do =
you do=20
with those papers? [Tiongson]:=20
Well, knowing that these are important, very important documents, =
I=20
immediately send them over to our attorney and--I copy or give the =
original to the president of the company or . . . whoever it is . =
. . that=20
is the head of the company at that time. " . =
. .=20
. [Counsel]:=20
And as far as you know, any papers that you have received as =
registered=20
agent for Interconex, have you turned those over to the president =
of the=20
company and to the attorney for the company? . =
. .=20
. [Tiongson]:=20
As far as I know, yes, I've always been turning over any legal =
documents=20
that I received as registered agent for Interconex to our attorney =
and to=20
the president of the company. Interconex=20
also refers to Tiongson's affidavit testimony that I did not =
receive=20
service of any papers, documents, citation, or process by any =
person in=20
the . . . lawsuit, but if for whatever reason I did receive =
service of any=20
such papers, I would have immediately turned such documents and =
papers=20
over to to the attorneys for Interconex, Inc. for their proper =
handling=20
and legal services. The=20
affidavit containing the above testimony was admitted into =
evidence at the=20
beginning of the hearing. However, later in the hearing, Ugarov =
presented=20
substantive objections to Tiongson's affidavit testimony. =
Specifically,=20
Ugarov objected to Tiongson's testimony that "assuming that I =
signed the=20
citation, apparently a mistake or accident occurred," that =
"whatever=20
occurred to cause me not to receive a copy of the citation and =
petition .=20
. . it was a mistake and/or accident," that "if I had received the =
citation and petition . . . I would have forwarded it immediately =
to the=20
company's attorneys," and that it is his intention "to always have =
any=20
lawsuit with which I am served delivered immediately to the =
company=20
attorneys, and to have a timely answer filed." The trial court =
sustained=20
Ugarov's objections to this testimony. The Texas=20
Supreme Court has recently stated that to establish accident or =
mistake a=20
party does not necessarily have to present an affidavit from the =
person=20
who lost the papers describing how the papers were lost because,=20
logically, "[p]eople often do not know where or how they lost=20
something--that is precisely why it remains 'lost.'" Fidelity =
&=20
Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 575 =
(Tex.=20
2006). Furthermore, the court has "often set aside default =
judgments when=20
papers were misplaced, though no one knew precisely how." =
Id.=20
(citing Old Republic Ins. Co., 873 S.W.2d at 382; =
Estate of=20
Pollack v. McMurrey, 858 S.W.2d 388, 391 (Tex. 1993); =
Hanks v.=20
Rosser, 378 S.W.2d 31, 32, 36 (Tex. 1964)). Finally, while =
"[a]n=20
excuse need not be a good one to suffice," "a conclusory statement =
that=20
documents were 'lost' must generally be supported by some =
explanation from=20
the person most likely to have seen them, or of the efforts made =
to find=20
them." Id. at 575-76. For=20
example, in Fidelity & Guaranty Insurance Company, =
the=20
defaulting defendant provided affidavit testimony that its =
registered=20
agent received the citation and petition, and that computer =
records=20
indicated that, contrary to the ordinary course of business, the=20
registered agent did not forward an electronic scan of the =
documents to=20
the defendant's affiliate. 186 S.W.3d at 575. The affiliate's =
agent also=20
averred that she never received the documents. Id. The =
supreme=20
court rejected the contention that the defendant's affidavits were =
general=20
or conclusory, instead finding that they "detail[ed] the =
procedures for=20
handling service papers in general and what is known about [the=20
plaintiff's] papers in particular" and that "[i]n the case of =
electronic=20
records, they explain[ed] precisely where the breakdown occurred . =
. . ."=20
Id. Similarly,=20
in Old Republic, the defaulting defendant presented =
affidavit=20
testimony from a claims handler assigned to investigate a lost =
citation,=20
who testified that the defendant had transferred claim files to =
another=20
facility around the time that the citation was served and that to =
the best=20
of her knowledge, the citation "was inadvertently included among =
the=20
transferred files and misplaced." 873 S.W.2d at 382. The supreme =
court=20
found, based on this evidence, that Old Republic satisfied its =
burden to=20
set forth facts establishing that its failure to answer was =
mistaken or=20
accidental and not the result of conscious indifference. =
Id.;=20
cf. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, =
83 (Tex.=20
1992) (finding affidavit that merely stated that "the failure of =
the=20
corporation to file an answer herein was due to accident and =
mistake due=20
to the complete lack of knowledge of any knowledge as to the facts =
or=20
circumstances" involved in case provided "merely a conclusory =
allegation"=20
with "no explanation of the nature of the mistake"). Here,=20
Tiongson contended, even after he admitted that there was "no =
doubt" that=20
his signature appeared on the citation, that he had not been =
properly=20
served in this lawsuit. After the trial court apparently rejected=20
Tiongson's testimony and found that he had been served, Tiongson =
offered=20
testimony regarding how he generally performs the duties of a =
registered=20
agent, but there was no testimony establishing whether he had =
actually=20
forwarded the papers in this lawsuit to the appropriate person at=20
Interconex or what may have happened to the papers in this =
lawsuit. The=20
only evidence concerning Interconex's receipt of papers in this =
lawsuit=20
was Tiongson's testimony at the hearing that, "[a]s far as [he =
knew]," he=20
had "always been turning over any legal documents" to Interconex's =
attorney and president. However,=20
even if Tiongson's testimony could be considered sufficient to =
support a=20
finding that Tiongson, in the ordinary course, forwarded the =
papers in=20
this lawsuit to the Interconex's president and counsel, neither =
the=20
president nor the counsel testified whether or not they had =
received the=20
papers, whether or not such papers were lost on their way to their =
offices, whether or not these papers had been misplaced by =
representatives=20
in their office, and, importantly, whether or not Interconex =
failed to=20
file an answer to the lawsuit through a mistake or accident. =
See Holt=20
Atherton Indus., 835 S.W.2d at 83 ("When a defendant relies =
on his=20
agent to file an answer, he must demonstrate that both he and his =
agent=20
were free of conscious indifference."). Additionally, even =
assuming that=20
we could consider Tiongson's affidavit testimony that, if he had =
received=20
the legal papers, he "would have forwarded [them] immediately to =
the=20
company's attorneys," and that it was his intention "to always =
have any=20
lawsuit . . . delivered immediately to the company attorneys, and =
to have=20
a timely answer filed," this testimony simply addresses Tiongson's =
forwarding of papers to others at Interconex who would be =
responsible for=20
filing an answer, none of whom testified. It does not address =
whether such=20
papers were lost after being forwarded to these agents or =
employees of=20
Interconex, or whether those agents or employees ignored the =
papers and=20
did not file an answer. Unlike the evidence presented in =
Fidelity=20
& Guaranty Insurance Company, here there is no =
evidence=20
concerning the papers in this lawsuit and there is no explanation =
of where=20
the "the breakdown occurred." Simply put, although Interconex =
forcefully=20
argued that, assuming it had been served, its failure to file an =
answer=20
was not intentional or the result of conscious indifference but =
instead=20
was due to accident or mistake, Interconex failed to offer any =
evidence on=20
the first Craddock element. Accordingly, we hold that the =
trial=20
court did not abuse its discretion in denying Interconex's motion =
to set=20
aside default judgment. Having so held, we need not address =
whether=20
Interconex satisfied the second and third elements of =
Craddock.=20
We overrule=20
Interconex's third issue. Based on=20
the default judgment, the trial court read the following paragraph =
to the=20
jury at the commencement of voir dire in the damages =
trial: Plaintiff=20
was employed by ChevronTexaco and was relocated in October 2002 =
from=20
Moscow, Russia to Houston, Texas. Defendant failed to obtain =
export=20
permits for nine watches belonging to Plaintiff and as a result, =
the=20
watches were confiscated by Russian authorities. After Plaintiff =
returned=20
to the United States, Defendant informed the Plaintiff that he =
should not=20
return to Russia for at least six months because of concerns =
regarding=20
Plaintiff's possible arrest relating to the confiscated property.=20
Plaintiff lost an employment opportunity because of this =
problem and=20
did not earn as much as he otherwise would have earned after =
October 2002.=20
The jury will be asked to decide only questions about the amount =
of=20
damages. The Defendant has already admitted liability for the acts =
alleged=20
in Plaintiff's petition. (emphasis=20
added). The trial=20
court also permitted Ugarov to read to the jury the following =
statement as=20
"undisputed fact" during the presentation of his evidence in the =
damages=20
trial: In October=20
2002, Ugarov was relocated by his former employer, [Chevron], from =
Moscow,=20
Russia to Houston, Texas. . . . [Chevron] hired [Cendant] to =
handle=20
Ugarov's relocation. [Cendant] subsequently contracted with =
[Interconex]=20
to coordinate Ugarov's international move, including the =
preparation of=20
all documents and export permits required by the Ministry of =
Culture of=20
the Russian Federation. [Interconex] held a power of attorney =
executed by=20
Ugarov relating to all aspects of moving his property. =
[Interconex]=20
inventoried and packed Ugarov's family possessions at his Moscow =
apartment=20
for a two-day period prior to the Russian customs=20
inspection. During the=20
government inspection which occurred on or about October 23, 2002, =
Russian=20
authorities confiscated nine timepieces claiming that they were =
not backed=20
by the appropriate export permits. Nonetheless, when the nine =
unpermitted=20
watches were discovered by Russian Customs officials at the =
inspection in=20
October 2002, [Interconex] representatives did not take =
responsibility for=20
their error but instead attempted to shift the blame to Ugarov by =
claiming=20
that he had concealed the timepieces from them during the packing =
process.=20
. . . [Interconex's] false accusation as to Ugarov's attempt to =
conceal=20
the watches and thus smuggle them out of the country were =
communicated not=20
only to Russian custom officials, but ultimately also to Ugarov's =
former=20
employer, [Chevron]. After=20
Ugarov's return to the United States in late October 2002, =
[Interconex]=20
representatives informed him that he should not return to Russia =
because=20
of concerns over his possible arrest relating to the confiscated =
property.=20
. . . [Interconex] officials recommended that Ugarov wait at least =
six=20
months before attempting to return to Russia. Ugarov is=20
an engineer by training whose career has evolved into business =
management.=20
Prior to October 2002, he worked for 25 years coordinating =
business=20
projects with various Russian and American entities. . . . Indeed, =
his=20
Russian business experience and his contacts within his native =
country are=20
essential components to Ugarov maintaining his =
livelihood. Due to the=20
situation with the Russian Ministry of Culture, Ugarov was =
unable to=20
return to Russia specifically having to abandon an employment =
opportunity=20
that presented itself in late 2002. Ugarov was out of work from =
the=20
October 2002 move until November 2003. To date[,] he has neither =
worked=20
again in Russia [n]or earned a salary commensurate with that =
earned=20
pre-October 2002. Ugarov was=20
the third party beneficiary of the above mentioned contract =
between=20
[Cendant] and [Interconex] in that the contract was made for his =
benefit=20
and the contracted parties intended for him to benefit from such =
contract.=20
Not only did he lose possession of the nine timepieces, but =
because he was=20
under threat of arrest and therefore unable to return to =
Russia, he=20
also has lost valuable employment =
opportunities. (emphasis=20
added). At the=20
conclusion of trial, over Interconex's objection, the trial court=20
submitted the following question to the jury: "What sum of money, =
if any,=20
if paid now in cash, would fairly and reasonably compensate Nick =
Ugarov=20
for his damages, if any, that resulted from the Plaintiff's =
inability=20
to return to Russia?" (emphasis added). Thus, pursuant to the =
trial=20
court's rulings, the jury was instructed throughout the damages =
trial that=20
Ugarov, in fact, could not return to Russia and that, in fact, he =
lost a=20
job as a result of being unable to return to Russia. The jury was =
then=20
asked, in the sole question in the charge, to award Ugarov damages =
based=20
on the "undisputed" fact that he could not return to Russia and =
lost a job=20
as a result The=20
complaints raised by Interconex in its fourth issue largely relate =
to the=20
issue of what facts are established by a default judgment, and =
both=20
parties cite the Texas Supreme Court's decision in Morgan =
as=20
controlling authority. See Morgan, 675 S.W.2d at 732. In=20
Morgan, an employee brought suit for negligence and =
strict=20
liability for injuries sustained as a result of inhaling chemical =
fumes=20
emitted from a typesetting machine in her office. Id. at =
730. The=20
employee had alleged that Compugraphic's manufacturing and =
installing of a=20
defective typesetting machine or, alternatively, its negligent=20
installation of the typesetting machine resulted in the release of =
chemical fumes in her office, "causing her a variety of injuries." =
Id. at 730, 732. Compugraphic failed to file an answer, =
and the=20
trial court rendered default judgment against it. Id. at =
730. The=20
supreme court, noting that "Compugraphic's default did not =
establish that=20
the release of chemical fumes caused [the employee] any injuries," =
stated=20
that the employee "had the burden of presenting competent evidence =
of a=20
causal nexus between the release of chemical fumes and her alleged =
injuries." Id. at 733. The court emphasized that although =
the=20
default established that the machine was leaking fumes, the =
employee, as=20
proof of her injuries, presented evidence showing that she was =
working=20
within inches of the machine and that she had experienced =
breathing and=20
swelling problems and other physical symptoms. Id. Based =
on this=20
evidence, the court concluded that the trier of fact could have =
properly=20
inferred that the release of fumes "caused [the employee] to =
suffer=20
injuries." Id. Thus, the default in Morgan =
established=20
only that fumes were released from the machine, either through=20
Compugraphic's negligence or through a manufacturing defect, but =
it did=20
not establish that the employee was exposed to the fumes in a =
sufficient=20
nature to cause her personal injuries; the employee was required =
to=20
present evidence of these facts. Id. In sum, the facts=20
established by the default in Morgan appear to have been =
more=20
closely related to Compugraphic's conduct rather than any injury =
to the=20
employee. The supreme=20
court, in affirming the default judgment, explained that, in a =
personal=20
injury case, there are "two distinct aspects of causation." =
Id.=20
at 731. It further explained that, "[i]n a personal injury case, =
the=20
plaintiff typically alleges that the defendant's conduct caused an =
event--an automobile accident, a fall, or in this case, the =
release of=20
chemical fumes--and that this event caused the plaintiff to suffer =
injuries for which compensation in damages should be paid." =
Id.=20
Thus, the supreme court concluded that a plaintiff must establish =
two=20
causal nexuses in order to be entitled to recovery: "(a) a causal =
nexus=20
between the defendant's conduct and the event sued upon; and (b) a =
causal=20
nexus between the event sued upon and the plaintiff's injuries."=20
Id. at 731. The first=20
nexus, which "relates to the liability portion of [a] plaintiff's =
cause of=20
action," is the nexus admitted by default. Id. at 732. As =
noted=20
above, liability, as used in this context, means the "legal =
responsibility=20
for the event upon which suit is based." Id. at 732. In =
regard to=20
the second nexus, the court noted, Whether the=20
event sued upon caused any injuries to the plaintiff is another =
matter=20
entirely. The causal nexus between the event sued upon and the =
plaintiff's=20
injuries is strictly referable to the damages portion of the =
plaintiff's=20
cause of action. Even if the defendant's liability has been=20
established, proof of this causal nexus is necessary to ascertain =
the=20
amount of damages to which the plaintiff is entitled. This is =
true=20
because the plaintiff is entitled to recover damages only =
for=20
those injuries caused by the event made the basis of the suit; =
that the=20
defendant has defaulted does not give the plaintiff the right to =
recover=20
for damages which did not arise from his cause of =
action. In accord=20
with Morgan, we agree that the default in this case =
established=20
that Interconex failed to obtain the proper export permits, =
falsely=20
accused Ugarov of concealing the timepieces and attempting to =
smuggle them=20
out of the country, and communicated these false accusations to =
Russian=20
Customs officials and Ugarov's former employer. These facts relate =
to the=20
liability portion of Ugarov's suit. However,=20
the default judgment did not establish that Ugarov was unable to =
return to=20
Russia or, more significantly, that Ugarov lost a specific job for =
which=20
he had been hired, which are facts related to the second causal =
nexus=20
recognized in Morgan. 675 S.W.2d at 732-33. Even though =
the=20
default in Morgan established that a negligently =
installed or=20
defective machine released chemical fumes in the employee's =
office, the=20
employee still had to offer evidence as to her proximity to the =
release of=20
the fumes and that she actually sustained personal injuries as a =
result of=20
the exposure. Id. at 733. There, the employee did not =
merely=20
prove up her medical bills or present evidence as to the extent of =
her=20
personal injuries. Id.; see also Kirkpatrick, =
862 S.W.2d=20
at 772 ("Although the default establishes liability, the plaintiff =
must=20
prove the causal nexus between the event sued upon and his =
injuries as=20
part of the proof to determine the amount of damages a plaintiff =
may=20
recover."). Rather, she offered evidence of "a sequence of events" =
permitting the trier of fact to properly infer "that the release =
of=20
chemical fumes from the typesetting machine caused [her] to suffer =
injury." Morgan, 675 S.W.2d at 733. Similarly,=20
in this case, although the default judgment established that =
Interconex=20
failed to obtain the proper permits and defamed Ugarov to both his =
employer and Russian Customs officials, it did not establish, as=20
"undisputed" facts, that Ugarov was unable to return to Russia and =
that he=20
lost a specific job opportunity for which he had been hired. =
See=20
Kirkpatrick, 862 S.W.2d at 773 (stating that =
defaulting=20
defendant has right to be heard and participate and is entitled to =
present=20
evidence by cross-examining plaintiff's witnesses or presenting =
own=20
witnesses to show that event made basis of plaintiff's suit did =
not cause=20
plaintiff's injuries). Here, under=20
the trial court's interpretation of Morgan, the sole =
issue at the=20
damages hearing was determining the exact amount of Ugarov's =
damages by=20
calculating the difference between the amount he would =
have=20
earned at a job with Reforma with the amount he actually earned in =
alternative employment. Thus, the judgment was necessarily founded =
upon=20
the presumption that Ugarov had lost a job for which he was =
entitled to be=20
compensated, not on evidence of a nexus between the events sued =
upon and=20
Ugarov's damages. We also=20
hold that the trial court abused its discretion in making =
impermissible=20
comments on the weight of the evidence in instructing the jury =
that the=20
default judgment established that Ugarov could not return to =
Russia and=20
lost a valuable job opportunity and in submitting in the jury =
question, as=20
undisputed fact, that Ugarov was unable to return to Russia. =
See H.E.=20
Butt Grocery Co. v. Bilotto, 985 S.W.2d 22, 24 (Tex. 1998) =
(stating=20
that trial court makes a "direct comment on the weight of the =
evidence" if=20
it submits issue "suggest[ing] to the jury the trial court's =
opinion on=20
the matter"); In re D.R., 177 S.W.3d 574, 581 (Tex. =
App.--Houston=20
[1st Dist.] 2005, pet. denied) (stating that trial court's broad=20
discretion in submitting jury questions is subject to requirement =
that=20
questions submitted fairly place disputed issues before jury); =
First=20
Nat'l Bank of Amarillo v. Jarnigan, 794 S.W.2d 54, 62 (Tex.=20
App.--Amarillo 1990, writ denied) (stating that "[a]n =
impermissible=20
comment on the weight of the evidence occurs, when after examining =
the=20
entire charge, it is determined that the judge assumed the truth =
of a=20
material controverted fact, or exaggerat[ed], minimiz[ed], or =
with[drew]=20
some pertinent evidence from the jury's consideration"); see =
also=20
Tex. R. Civ. P. 277. Moreover,=20
because, in making these comments to the jury, the trial court =
instructed=20
the jury on the resolution of material, disputed issues of fact, =
we=20
further hold that the improper comments and jury question probably =
caused=20
rendition of improper judgment. Tex. R. App. P. 44.1(a)(1); =
see=20
also In re D.R., 177 S.W.3d at 581, 584 (stating =
that error=20
in jury charge is only reversible if it probably caused the =
rendition of=20
an improper judgment or probably prevented appellant from properly =
presenting case on appeal). We sustain=20
Interconex's fourth issue in regard to its complaints that the =
trial court=20
erred in excluding its evidence contesting the causal link between =
its=20
conduct and Ugarov's damages, in informing the jury that =
Interconex had=20
admitted that its conduct caused Ugarov's inability to return to =
Russia=20
and loss of a job opportunity, and in overruling Interconex's =
objections=20
to the trial court's sole question to the jury.
We reverse=20
the judgment of the trial court and remand the case for a new =
trial on=20
damages and further proceedings consistent with this=20
opinion. Panel=20
consists of Chief Justice Radack and Justices Jennings and=20
Alcala. 1. 2. 3. 4. 5. 6. 7.