Acadia Healthcare Co. v. Horizon Health Corp. (472 S.W.3d 74, 2015)

OPINION ON REHEARING

LEE GABRIEL, JUSTICE

Horizon Health Corporation (Horizon) moved for a rehearing of this panel’s February 26, 2015 memorandum opinion and judgment. See Tex. R. App. P. 49.1. We grant the motion, withdraw our February 26, 2015 memorandum opinion and judgment, and substitute the following. We dismiss Horizon’s motion for en banc reconsideration as moot. See Tex. Dep’t of Public Safety v. Nail, 305 S.W.3d 673, 674 (Tex.App.-Austin 2010, no pet.) (op. on reh’g). .

This appeal raises multiple questions involving a trial court’s judgment based on the jury’s answers to a 55-page charge. We are asked to review alleged jury-charge error, the sufficiency of the evidence to support the jury’s findings, exemplary damages, attorneys’ fees, and how preservation of error or lack thereof can affect our review of all of these issues. Because we conclude the evidence is legally insufficient to support future lost-profits damages and because exemplary damages may' not be awarded jointly and severally under the facts of this case, we reverse those portions of the trial court’s judgment. Because we also substantially reduce the exemplary-damages award based on the reduction of compensatory damages upon a suggestion of remittitur, we reverse the issue of attorneys’ fees and remand that issue for a new trial. --Otherwise, we will affirm the remainder of the trial court’s judgment subject'to our suggestion of a remittitur regarding exemplary damages.

I. BACKGROUND

A. HoRizon and Project Shamrock

Horizon Mental Health Management, Inc. was formed in 1981 to manage mental-health programs for healthcare entities such as hospitals. In 2007, Horizon Mental Health Management, Inc. became Horizon Health Corporation (Horizon) and was acquired by Psychiatric Solutions, Inc. (PSI). PSI’s chief executive officer at the time was Joey Jacobs.

In early 2010, PSI considered going private and, thus, no longer being publicly traded. Several members of Horizon’s executive-management team met shortly thereafter to discuss the possibility of buying Horizon from PSI. These team members, who called themselves “Project Shamrock,” were Mike Saul (the president of Horizon), Barbara Bayma (the chief clinical officer for Horizon), Peter Ulasew-icz (a senior vice-president of business development for Horizon), Cory Thomas (Horizon’s chief financial officer), Jack De-Vaney (a senior vice-president of operations for Horizon), and Tim Palus (also a senior vice-president of operations for Horizon). Saul approached Jacobs to express Project Shamrock’s interest in buying Horizon if PSI went private. Jacobs told Saul that “certain things would remain exactly as they were and that PSI, instead of being a publicly traded company, would just be a privately held company.”

Contrary to Jacobs’s belief, however, PSI ultimately was acquired by Universal Health Services (UHS), a large, publicly-traded, company. Project Shamrock then tried to negotiate buying Horizon from UHS, In late 2010, UHS rejected Project Shamrock’s proposal and kept Horizon under UHS’s ownership umbrella. The members of Project Shamrock remained employed by Horizon after UHS rejected their buy-out offer.

B. Acadia FoRms Subsidiary and Hires HoRizon Employees

In May 2011, Saul approached Acadia Healthcare Company “about the possibility of ... going over to Acadia.” Acadia owned “freestanding psychiatric, child and adolescent, residential, chemical dependency treatment” facilities. , Saul presented a business plan to Acadia’s president, Brent Turner, on May 18, 2011,; proposing that Acadia establish a subsidiary to manage mental-health programs for hospitals and other mental-health providers. In his presentation, Saul identified several companies that would be “competition” for the proposed subsidiary, including Horizon, which Saul indicated was “lost ■ in UHS bureaucracy” and would lose customers “due to relationships.” - Acadia decided to “move forward” with the proposal, and Saul forwarded his resume and the resumes of Ulasewicz, Palus, and Bayma to Turner as a “proposed management team.” Saul also told Turner that they “would go hard” after John Piechocki, a member of Ulasewicz’s sales team, based on his successful sales record at Horizon. Indeed, Ulasewicz and Saul began to. recruit Pie-chocki to work for Acadia shortly after Acadia approved Saul’s proposal.

In June 2011, Saul, Ulasewicz, Palus, and. Bayma met to discuss their anticipated move to Acadia and “their plans for [the planned Acadia subsidiary].” In August and September 2011, Saul, Palus, Bayma, Piechocki, and Ulasewicz resigned from Horizon. Each began working for Psychiatric Resource Partners (PRP), which was a recently formed subsidiary of Acadia borne from Saul’s May 2011 presentation. Saul began as the president of PRP. Pie-chocki told DeVaney, who stayed at Horizon, that PRP would “directly compete” with Horizon.

C. HoRizon Investigates

Based on these close-in-time resignations, Horizon conducted a forensic investigation of its computer system and discovered that all except Piechocki “had conferred with one another in reaching their individual decisions to leave, and in making preparations to leave,” including discussing strategy regarding their move to Acadia, planning the exact timing of their resignations, and noting when their employment benefits with Acadia would begin. Indeed, shortly before Saul’s presentation to Acadia, Ulasewicz e-mailed Saul and told him that several of their possible new clients would come “out of Horizon’s hide,” their departures would leave Horizon “dead,” their business strategy at Acadia should be “hurting Horizon early and often,” and “the real Horizon— Jacobs, Saul, Ulasewicz, Bayma, Palus, Piechocki” — would “need to gut punch [Horizon]” as they left.

It is undisputed that Saul, Palus, Ula-sewicz, Bayma, and Piechocki (collectively, the individual defendants) accessed their work files and made copies of several Horizon documents before they left to work for PRP. In particular, Saul bought an external hard diive for his work computer in late 2010 and placed “a massive, massive amount” of Horizon documents on it such as policies and procedures, “non-standard” contract language, financial models, monthly account listings, sales presentations, orientation materials, and legal files. Basically, Saul copied onto his external hard drive “everything that was non-financial on [Horizon’s] server.”

Additionally, during a routine human-resources audit, it was discovered- that Saul, Bayma, Palus, and Ulasewicz had signed employment agreements while employed at Horizon, mandating confidentiality and restricting solicitation and competition (collectively, the restrictive covenants). The agreements specifically mentioned the positions each had held at the time the agreements were signed, which were not the same ■ positions each had held at the time of their resignations. The covenants not to compete barred the employees from seeking employment in or independently establishing “a psychiatric contract management company that is in direct competition with [Horizon].” They were further prohibited from soliciting “any employed of [Horizon].” The confidentiality covenants barred the employees from disclosing or using Horizon’s trade secrets, confidential information, or proprietary information. Although the employees signed the agreements between 1997 and 2005, the agreements applied “for a period.,of one (1) year”, after their respective employments with Horizon ended.

In September 2011; ■ shortly after the individual defendants left their jobs with Horizon, Horizon notified Bayma, Jacobs, Palus, Piechocki, Saul, and Ulasewicz that their resignations and subsequent employments with Acadia were in violation of their employment agreements and the restrictive covenants entered into “at the inception of [their] employment” and of their common-law duties of good faith and loyalty. -Horizon demanded that they end their employment with Acadia and return all documents to Horizon. , •

D. PRP’s Sales Efforts .

Piechoeki, using a list of Horizon sales leads he had copied before resigning, was able to secure a consulting contract for PRP with Southwest Regional Medical Center, which was an active Horizon lead noted on its list of sales leads. Although Piechocki marked some of the leads on the list “DEAD” before he -resigned from Horizon, those leads were added to PRP’s “master contact list” after Piechocki joined Acadia. In January 2012, Piechocki ultimately signed Westlake Regional Hospital (Westlake) to a contract with PRP over “direct competition” from Horizon. Pie-chocki used Horizon’s financial models to “crunch[] numbers” to win the Westlake contract. Additionally, PRP agreed to pay Westlake $150,000 to upgrade its facility, which was not a concession Horizon had ever made before in its management contracts.

After joining PRP, Ulasewicz set up a meeting with Cottage Hospital, which was a potential client he had met with while employed by Horizon. Ulasewicz previously had learned while still employed by Horizon that Cottage Hospital’s impediment to using contract-management services such as those offered by Horizon and PRP possibly would be removed; however, Ulasewicz did not share this information with anyone at Horizon. PRP also began pursuing several of Horizon’s existing clients after the individual defendants left Horizon.

E. Horizon Files Suit

In October 2011, Horizon filed suit against the individual defendants for breach of fiduciary duty; misappropriation of trade secrets; conversion; accessing proprietary information in violation of the Harmful Access by Computer Act; appropriating proprietary information in violation of the Theft Liability Act, i.e., theft of trade secrets; tortious interference with existing contracts; tortious interference with prospective business relationships; and conspiracy. Against Saul, Palus, Ula-sewicz, and Bayma, Horizon additionally raised claims for breach of the restrictive covenants not to compete, fraud, and breach of contract. Horizon alleged Acadia and PRP were liable for all of these acts and omissions either because they were directly involved or under the doctrines of ratification and vicarious liability. Horizon alleged as a separate claim that Acadia and PRP “aided and abetted and provided substantial assistance” to the individual defendants “in breaching their fiduciary duties.” Horizon sought exemplary damages, attorneys’ fees, the imposition of a constructive trust, compensation forfeiture, and injunctive relief.

F. PretRial Procedure

Horizon filed a traditional motion for partial summary judgment, mainly seeking a determination that the employment agreements were valid and enforceable under Texas law; that Saul, Palus, Ula-sewicz, and Bayma had breached the restrictive covenants; and that Saul and Ulasewicz had breached the nonsolicitation provisions. See Tex. R. Civ. P. 166a(c). Acadia, PRP, and the individual defendants (collectively, the Acadia defendants) also moved for summary judgment, under both traditional and no-evidence standards, based on the absence of any genuine issues of material fact on each claim raised by Horizon and because the employment agreements were unenforceable as a matter of law. See Tex. R. Civ. P. 166a(c), (i).

The trial court granted Horizon a partial summary judgment and concluded that “the noncompetition agreements entered into by Horizon with ... Saul, Palus, Ula-sewicz, and Bayma were valid and enforceable covenants not to compete under Texas law at the time of them respective terminations of Horizon employment, without modification.” See Tex. Bus. & Com. Code Ann. § 15.51(c) (West 2011) (directing trial court to modify unreasonable limitations in otherwise enforceable covenant). The trial court denied the Acadia defendants’ motion for summary judgment.

Horizon also sought the imposition of sanctions against the Acadia defendants for failure to comply with the trial court’s discovery order. See Tex. R. Civ. P. 215.2(b). The trial court granted the motion but ordered only Saul to pay Horizon $41,740.80 for his “failure to timely produce all relevant documents and tangible things, and ... refusal to cooperate with his discovery obligations.” See Tex. R. Civ. P. 215.2(b)(2), 215.3. The trial court specifically saved for trial the issue of whether a spoliation instruction should be given to the jury.

G. TRIAL PROCEDURE

After a lengthy trial, the Acadia defendants orally moved for an instructed verdict on all of Horizon’s claims and on Horizon’s request for attorneys’ fees because Horizon’s evidence regarding attorneys’ fees did not “apportion[ ] the fees between the causes of action on which attorney’s fees are recoverable” or delineate what factors were considered to establish reasonableness. See Tex. R. Civ. P. 268. The trial court denied the motion. At the charge conference, the trial court determined that a spoliation instruction allowing the jury to draw an adverse inference against Saul based on his discovery abuse would be included in the charge.

On December 21, 2012, the jury rendered the following unanimous verdicts on Horizon’s claims:

• Breach of covenants not to compete: Saul, Palus, Ulasewicz, and Bayma “continuously and persistently” breached the terms of their covenants not to compete.

• Breach of nonsolicitaiton covenants: Saul and Ulasewicz breached the terms of their covenants not to solicit.

• Breach of fiduciary duties: The individual defendants, while acting within the scope of their employment with Acadia and PRP, failed to comply with their fiduciary duties to Horizon. Acadia and PRP ratified this conduct and will earn future profits as a result.

• Intentional interference with non-competition covenants: The individual defendants, while acting in the scope of their employment with Acadia and PRP, intentionally interfered with the non-competition covenants. Acadia and PRP ratified this conduct.

• Misappropriation of trade secrets: The individual defendants, while acting in the scope of their employment with Acadia and PRP, misappropriated Horizon’s trade secrets. Acadia and PRP ratified this conduct and will earn future profits as a result.

• Conversion: The individual defendants, while acting in the scope of their employment with Acadia and PRP, converted Horizon’s proprietary information. Acadia and PRP ratified this conduct and will earn future profits as a result.

• Theft of trade secrets or property: The individual defendants intentionally committed theft of Horizon’s property and trade secrets, which were worth at least $20,000. Acadia and PRP ratified this conduct and will earn future profits as a result.

• Harmful computer access: The individual defendants, while acting in the scope of their employment with Acadia and PRP, knowingly accessed Horizon’s computers, computer network, or computer system without Horizon’s consent and with the intent to harm Horizon. Acadia and PRP ratified this conduct.

• Fraud: Saul,'Patas, Ulasewicz, and Baynia committed fraud and fraud by nondisclosure by submitting expense reports for trips taken in June 2011. Acadia and PRP did not benefit from this fraud or' ratify it.

• Conspiracy: The Acadia defendants participated in a conspiracy that damaged Horizon.

• Aiding and abetting: Acadia and PRP intentionally aided and abetted the individual defendants in breaching some of their fiduciary duties, intentionally interfering with the noncompetition covenants, misappropriating trade secrets, and converting Horizon’s proprietary' information, Only PRP aided and abetted the theft of Horizon’s property or trade secrets and the harmful computer access.

• Malice: The damage sustained by Horizon as a' result of the individual defendants’ breach of fiduciary duties, intentional interference with the non-competition covenants, misappropriation of trade secrets, conversion of Horizon’s proprietary information, and theft was attributable to the malice of the individual defendants, Acadia, and PRP. The individual defendants, without Horizon’s consent, intentionally solicited, accepted, or agreed to accept any benefit' from another person on the agreement that the benefit would influence his or her conduct in relation to Horizon’s affairs.

The jury awarded Horizon $898,000 in- future lost profits from the Westlake contract based on Saul’s, Palus’s, Ulasewicz’s, and Bayma’s failures to comply with their covenants not to compete and $3,300,000 in future lost profits based on Saul’s and Ulasewicz’s failures to comply with their covenants not to solicit. The jury found that Horizon suffered no past lost profits based on these failures to comply. Regarding Horizon’s claims for breach of fiduciary duty, intentional interference with the employment agreements, misappropriation of Horizon’s trade secrets, conversion of proprietary information, intentional theft of trade secrets, knowing access of Horizon’s computer system, and fraud, the jury awarded Horizon $6,003,049.24:

• $898,000 in future lost profits from the Westlake contract and $3.3 million in future lost profits from Piechocki’s sales production.

• $50,000 as the fair market value of the property or trade secrets, which were the subject of Horizon’s claim for theft of property or trade secrets.

• $5,049.24 in expenses charged to Horizon by Ulasewicz, Patas, and Bayma that were not associated with Horizon’s business.

• $1.75 million in exemplary damages.

The jury also awarded Horizon $900,000 in attorneys’ fees for representation costs incurred through the conclusion of trial. The jury declined to award any appellate attorneys’ fees.

H. POST-TRIAL PROCEDURE

Saul, Patas, Ulasewicz, and Bayma filed a motion to reconsider the partial summary judgment granted in favor of Horizon, and Saul sought reconsideration of the pretrial sanctions order. Acadia and PRP filed a motion to disregard the jury’s findings and an alternative motion for judgment notwithstanding the verdict based On legally insufficient supporting evidence. See Tex. R. Civ. P. 301. The individual defendants also filed a motion to disregard the jury’s findings. See id. The individual defendants adopted the “reasons ... set forth” in Acadia and PRP’s motion to disregard and alternative motion for judgment notwithstanding the verdict. Similarly, Acadia and PRP adopted the individual defendants’ motion to disregard the jury’s findings and the brief in support. Horizon filed an “omnibus” response to the Acadia defendants’ post-trial motions.

Horizon filed a motion for entry of judgment on the verdict and a motion for judgment notwithstanding the verdict regarding the jury’s finding on appellate attorneys’ fees. See Tex. R.. Civ. P. 301, 305. The individual defendants responded to Horizon’s motion for entry of judgment, and Acadia and PRP incorporated the individual defendants’ arguments in their response to Horizon’s motion. Horizon filed an “omnibus” reply in support of its motion.

The trial court granted in part and denied in part Horizon’s motion, awarding Horizon most of the damages awarded by the jury. The trial court denied the Acadia defendants’ motion to disregard the jury’s findings, their motion to reconsider the partial summary judgment granted in favor of Horizon, and Saul’s motion to reconsider the sanctions. The trial court entered final judgment on July 1, 2013, The final judgment awarded Horizon the full amount of damages as found by the jury and entered $41,740 in sanctions against Saul based on the pretrial discovery-abuse ruling. The trial court, however, reduced Horizon’s trial attorneys’ fees from $900,000 to $769,432, disregarded the jury’s zero award of appellate attorneys’ fees, and awarded Horizon $97,500 for appellate attorneys’ fees.

I. Post-Judgment PROCEEDINGS

Horizon requested findings of fact, and conclusions of law regarding, among other issues, the attorneys’ fees awards in the judgment. See Tex. R. Civ. P. 296. The Acadia defendants filed a motion to modify, correct, or reform the judgment to “resolve [an] inconsistency in the final judgment ...- [and] award actual past and future damages of $4,203,049.24.” See Tex. R. Civ. P. 316, 329b. They also filed a motion for new- trial, arguing -that the jury’s findings were supported by factually insufficient evidence. See Tex. R. Civ. P-. 329b.

On August 8, 2013, the trial court entered findings of fact and conclusions of law, clarifying that Horizon’s submitted evidence on attorneys’ fees “segregated 25% of its total fees ... and identified this 25% as fees that were not incurred in connection with a claim for which fees may be awarded.”, Therefore, the trial court “discounted” the requested attorneys’ fees “by 25%.” The motion for new trial and the motion to modify, correct, or reform the judgment were overruled by operation of law. See Tex. R. Civ. P. 329b(c). All parties filed notices of appeal from the trial court’s judgment. See Tex. R. App. P. 25.1(c).

The Acadia defendants raise seven issues in their appeal challenging (l)the trial court’s partial summary judgment and (2) the jury’s findings and damages awards, mainly on the basis of insufficient eviden-tiary support. Horizon raises three issues in its appeal and argues that the trial court erred by reducing its attorneys’ fees awards by 25% based on the admitted evidence establishing the full amount requested as a matter of law.

II. DISCUSSION

A. Insufficient Evidence to SuppoRT Lost-Profits Findings

In their third issue, the Acadia defendants argue that the evidence is legally insufficient to support the jury’s award of $4,198,000 for future lost-profits damages. The majority of the Acadia defendants’ post-trial, post-judgment, and appellate arguments focused on this issue, but then-appellate brief contains an accurate summary statement of their contention regarding lost-profits damages: “Texas law does not authorize a business to recover awards of significant damages for alleged future lost profits, when that business has lost no contracts or customers, and its only evidence of damages consists of statistics generated by an expert witness.” For the following reasons, we sustain issue three.

1. Preservation

The Acadia defendants assert that the opinion by Horizon’s expert, Jeff D. Bal-combe, relating to lost profits was unreliable, speculative, and conclusory; thus, it was no evidence of lost profits suffered by Horizon. The Acadia defendants are attacking Balcombe’s methodology based on the lack of foundational data and are asserting that the opinion, therefore, was unreliable and inadmissible based on analytical gaps in the evaluation leading to his opinion. See Tex. R. Evid. 702, 705(c).

A party complaining about the reliability of expert testimony must object to the evidence before trial or when the evidence is offered to preserve a complaint on appeal that the evidence is unreliable. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex.), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998); Faust v. BNSF Ry. Co., 337 S.W.3d 325, 332-33 (Tex.App.-Fort Worth 2011, pet. denied). If the trial court overrules an objection to expert testimony, the opposing party then may complain on appeal that the evidence was legally insufficient to support the jury’s finding because the expert evidence was unreliable and, thus, constituted no evidence. Faust, 337 S.W.3d at 332-33. The Acadia defendants objected to Balcombe’s testimony on the ground that his opinion was based on insufficient facts and later specified that Bal-combe’s opinion was impermissibly based on the unsupported assumption that West-lake was a Horizon lead. , The trial court overruled the Acadia defendants’ objections and allowed Balcombe to testify regarding Horizon’s future lost profits. Additionally, the Acadia defendants argued in their motion to disregard the jury’s findings that the evidence of lost profits was legally insufficient because Balcombe’s opinion suffered from “fatal infirmities: no alternate causes were considered or ruled out by the damages expert, an analytical gap exists between the alleged wrongful conduct and the damages claimed, and the expert failed to prove that the profits were net profits after all business' expenses were considered.” The Acadia defendants preserved their argument that Balcombe’s testimony was unreliable based on an analytical gap in his methodology and, therefore, was no evidence of lost-profit damages. See, e.g., City of Dallas v. Redbird Dev. Corp., 143 S.W.3d 375, 385 (Tex.App.-Dallas 2004, no pet.) (recognizing distinction in preservation requirements between attacks to expert’s methodology and legal-sufficiency complaint).

2. Standard of Review

In a legal-sufficiency review, we determine whether more than a scintilla of evidence supports the jury’s finding by considering evidence favorable to the finding if a reasonable fact-finder could and disregarding evidence contrary to the finding unless a reasonable fact-finder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex.2007); Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996).

Lost profits must be proven with reasonable certainty, and whether lost-profits evidence is reasonably certain is a fact-intensive inquiry. Phillips v. Carlton Energy Grp., LLC, — S.W.3d -, -, 58 Tex. Sup. Ct. J. 803, 2015 WL 2148951, at *9 (May 8, 2015); Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex.1992); Fraud-Tech, Inc. v. Choicepoint, Inc., 102 S.W.3d 366, 381 (Tex.App.-Fort Worth 2003, pet. denied). We are to focus on the experience of the .persons involved in the enterprise, the nature of the business activity, the relevant market, the nature of the client base, the sales force, the marketing plan, and the company’s track record of sales. Carter v. Steverson & Co., 106 S.W.3d 161, 166 (Tex.App.-Houston [1st Dist.] 2003, pet. denied); Fraud-Tech, 102 S.W.3d at 381. The amount of loss need not be subject to exact calculation but need only be shown by competent evidence based on objective facts, figures, or data from which the amount may be ascertained with reasonable certainty. Hunter Bldgs. & Mfg., L.P. v. MBI Global, L.L.C., 436 S.W.3d 9, 17-18 (Tex.App.-Houston [14th Dist.] 2014, pet. filed). At a minimum, however, “opinions or estimates of lost profits must be based on objective facts, figures, or data from which the amount of lost profits can be ascertained.” Heine, 835 S.W.2d at 84. A bare assertion that contracts were lost does. not show lost profits with reasonable certainty. Id. at 85. “The law is wisely skeptical of claims of lost profits from untested ventures or in unpredictable, circumstances, which in reality are little more than wishful thinking.” Phillips, — S.W.3d at -, 2015 WL 2148951, at *10.

As the Texas Supreme Court has instructed, we need not distinguish between Horizon’s different theories of recovery because its lost-profits damages were recoverable under several of the theories. ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 876 n.3 (Tex.2010). Indeed, the Acadia defendants do not so parse their argument.

3. Application

As previously stated, the jury based its lost-profit awards on two measures of recovery: -(1) lost profits from the Westlake contract that Horizon, in reasonable probability, would sustain in the future and (2) lost profits from Piechocki’s production that Horizon,- in reasonable probability, would sustain in the future. For the first measure, the jury uniformly .awarded $898,000 and for the second measure, the jury awarded $3,300,000. The first measure was tied to Saul’s, Bayma’s, Ulasew-icz’s, and Palus’s failure to comply with the noncompetition covenants, breaches of fiduciary duties, intentional interference with the employment agreements, misappropriation of trade secrets, conversion of proprietary information, theft of trade secrets, knowing access of Horizon’s computer system, and fraud.. The second measure was tied to these same claims (with the exception of breach of the covenants not to compete) and Saul’s and Ulasewicz’s breaches ofrfheir covenants not to solicit. Balcombe testified as to both measures of lost-profit damages. ■

" Balcombe testified as to the “lost production” damages' Horizon suffered as a result of the individual defendants’ wrongful actions. In doing so, he attempted to determine what would have happened but for the wrongful actions — as opposed to what actually happened — by considering (1) how long Piechocki would have remained an employee of Horizon but for the alleged wrongful conduct, (2) how many contracts Piechocki would have sold “but for being an employee of Horizon,” and (3) what the average profit for each of those contracts would have been had he remained with Horizon. "■

To determine the first consideration, Balcombe analyzed the average amount of tirpe Horizon retained its higher-level employees and “conservatively elected to assume” that Piechocki would have stayed at Horizon two or four more years but for the alleged wrongful conduct. The four-year tenure was assumed because Piechocki presumably would have been promoted after two years and “senior vice presidents stayed longer.” After reviewing e-mails and “deposition testimony,” Balcombe concluded that Piechocki “sold more contracts, closed more deals” — 50% more than other Horizon salespeople. Thus, Balcombe opined regarding the second consideration that Piechocki would have sold six contracts in each year he stayed, up to four years, but for the wrongful conduct because other Horizon salespeople sold four contracts per year. He affirmed that he included reductions for “normal business losses that would have, occurred.” Bal-combe’s third consideration involved, a compilation of “data over the period from 2001 through 2011 or ’12 regarding the profit per contract ... to see if there were trends and how to use the data that [was] reliable in [his] calculation.” He concluded that $247,000 per year for each contract was “a conservative and reliable figure for a mature contract price.” In arriving at this number, Balcombe considered the Westlake contract with PRP and its profit margin of $247,000. These three considerations allowed Balcombe to estimate the amount of Horizon’s lost profits at years five ($2,237,000), ten ($3,249,000), and fifteen ($3,378,000) following Piechocki’s resignation, assuming an 80% rate of contract retention by Horizon. Balcombe testified that Horizon’s contracts were retained for seven years on average.

Balcombe also testified as to the lost profits attributable to the Westlake contract. He reviewed PRP’s contract with Westlake “along with other financial documents about that contract.” He concluded that the “lost profit or cumulative economic damages”, arising from the Westlake contract was $668,220 after five years, $871,500 after ten years, and $898,200 after fifteen years. Balcombe knew that Westlake was not a customer of Horizon but believed Westlake was a lead of Horizon’s after the individual defendants left Horizon. In fact, he admitted, that his assumption that Westlake was a Horizon lead “might be guessing.”

Balcombe’s calculations, estimates, “statistical analysis,” and “work papers” supporting his conclusions were not admitted into evidence and were merely demonstrative aids. Because this information was not admitted into evidence, some of Bal-combe’s explanations for his conclusions are difficult to decipher on appeal. For example, Balcombe explained how he calculated the per-year profit of a representative eoritract by referring to the demonstrative aid he prepared:

The top part of this calculation represents the but-for incremental profit calculations, the middle part calculated the actual incremental profit calculations, and then down here is where I’m taking the difference between the two what has happened,- = what would happen versus what could have-happened, and calculating the difference is down in this area.

An expert’s opinion is not reliable if “there is simply too great an analytical gap between the data and the opinion proffered.” Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex.1998). Further, an expert’s opinion is not reliable if the foundational data, is .unreliable or if the expert draws conclusions from sound data based on flawed methodology. Havner, 953 S.W.2d at 714. “In sum, case law shows expert testimony on lost profits damages cannot be reliable, and therefore is not admissible, if the expert bases his opinion and calculations on nothing more than assumptions, hearsay, speculation, and his credentials.” Jeff Patterson & Giovanna Tarantino, Is the Bar Really Lower for Nonscientific Expert Testimony? The Advoc. (Tex.) 65, 67 (2005). See generally Robert M. Lloyd, The Reasonable Certainty Requirement in Lost Profits Litigation: What it Really Means, 12 Transactions: Tenn. J. Bus. L. 11, 17-28 (2010) (collecting cases and discussing factors courts consider'in determining reasonable certainty,- including the court’s confidence that the estimate is accurate).

We conclude that Balcombe’s opinion was too speculative based on an analytical gap between the data and his opinion; thus, it was no evidence of lost profits suffered by Horizon. The calculations and estimates Balcombe relied on in reaching his lost-profits conclusion were based on nothing more than speculation that (1) Piechocki, an at-will employee, would have stayed employed by Horizon, been offered a senior vice-president position, and accepted the position; (2) Horizon would have won the Westlake contract; and (3) hypothetical contracts signed by Piechocki during his hypothetical tenure with Horizon would have been profitable until 2026 — fifteen years after Piechocki’s 2011 resignation from Horizon even though the average contract-retention period was seven years. Horizon produced no evidence to support a fifteen-year retention period. Balcombe’s testimony confirms the supreme court’s shorthand method of determining the evidentia-ry value of an expert’s opinion on lost profits: “Merely laying out the [expert’s] calculation [of lost profits], with its sweeping assumptions, demonstrates how completely conjectural it is.” Phillips, — S.W.3d at -, 2015 WL 2148951, at *11. Balcombe’s testimony, which consisted of unsupported factual assumptions and anal-yses that were not admitted into evidence, was not competent to show with reasonable certainty that Horizon suffered lost profits as a direct result of the individual defendants’ actions. See, e.g., McBeth v. Carpenter, 565 F.3d 171, 176-77 (5th Cir. 2009) (holding evidence that “later transaction” was profitable no evidence of lost profits because later transaction was “markedly different” from transaction plaintiffs alleged was lost due to defendants’ actions); Blase Indus. Corp. v. Anorad Corp., 442 F.3d 235, 239 (5th Cir.) (holding employer could not recover damages for lost profits based on at-will employee’s “speculative future earnings” because employee “could have left ... at any point during the year in question”), cert. denied, 549 U.S. 817, 127 S.Ct. 82, 166 L.Ed.2d 29 (2006); Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995) (holding when assumed factual bases underlying expert’s opinion are materially different from actual facts and not supported by record evidence, expert opinion has no probative value); Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649-50 (Tex.1994) (holding evidence that company “expected to make a profit” legally insufficient because expectation based on “pure speculation” and record did not support conclusion that amount of lost profits resulted from defendant’s actions); AZZ Inc. v. Morgan, 462 S.W.3d 284, 296-98, 2015 WL 1623775, at *8 (Tex.App.-Fort Worth 2015, no pet.) (“Although the methodology utilized by [AZZ’s expert]— after making the above assumptions — to calculate AZZ’s future lost profits for three years or five years into the future may be valid, the underlying assumptions themselves, that is, the facts [the expert’s] future lost-profits calculations are premised on, are merely speculative.”); Ramco Oil & Gas Ltd. v. Anglo-Dutch (Tenge) L.L.C., 207 S.W.3d 801, 824-25 (Tex.App.Houston [14th Dist.] 2006, pet. denied) (op. on reh’g) (concluding evidence of lost profits legally insufficient because “Plaintiffs’ proof of lost profits is largely speculative, dependent on uncertain and changr ing market conditions, and based on risky business opportunities and the success of an unproven enterprise”); Atlas Copco Tools, Inc. v. Air Power Tool & Hoist, Inc., 131 S.W.3d 203, 209 (Tex.App.-Fort Worth 2004, pet. denied) (holding manufacturer’s evidence of lost profits insufficient because manufacturer included customers not part of distributor’s customer base and because numbers for six-year period were based on “one record year”); SBC Operations, Inc. v. Business Equation, Inc., 75 S.W.3d 462, 468-69 (Tex.App.-San Antonio 2001, pet. denied) (concluding evidence of lost profits insufficient because based on “assumptions” of increased business that “had no basis in fact”); Aquila Sw. Pipeline, Inc. v. Harmony Exploration, Inc., 48 S.W.3d 225, 245-46 (Tex.App.-San Antonio 2001, pet. denied) (although expert used ■ standard methodology to determine lost profits, evidence of lost profits insufficient because underlying facts were “merely speculative”); accord Saks Fifth Ave., Inc. v. James, Ltd., 272 Va. 177, 630 S.E.2d 304, 307-08, 311-12 (2006) (holding similar expert evidence of future lost profits attributable to departure of at-will employee insufficient because calculation “focused solely on a ‘but-for’ model of what [employer’s] profits would have been had [employee] remained employed there”). Bal-combe’s testimony was the only evidence of Horizon’s damages for lost profits; thus, the evidence was legally insufficient to support these damage findings.

Because we have concluded the evidence was' legally insufficient to' support the jury’s lost-profits findings under any liability theory, we need not address the Acadia defendants’ issues attacking the sufficiency of the evidence supporting those liability findings or the manner in which those liability theories were submitted in the jury charge. It is.also not necessary for us to address the Acadia defendants’ assertion that the trial court erred to conclude as a matter of law that the restrictive covenants were enforceable without modification. Thus, we do not address issue one, issue two, or portions of issue four raised by the Acadia defendants.

B. Denial op Motion to DISREGARD Jury’s Findings and Motion for New Trial

1. Insufficient Evidence to Support Jury’s Liability Findings

' In part of issue four, the Acadia defendants assert that the evidence was legally insufficient to support the jury’s findings that (1) the individual defendants breached their fiduciary duties; (2) the individual defendants misappropriated Horizon’s trade secrets;' (3) the individual defendants converted Horizon’s proprietary information; (4) the individual defendants knowingly accessed Horizon’s computer system without Horizon’s consent and with the intent to harm Horizon; (5) Saul, Pa-lus, Bayma, and Ulasewicz committed fraud and fraud by nondisclosure; (6) the individual defendants intentionally solicr ited, accepted, or agreed to accept a benefit from another knowing that the benefit would influence his or her conduct in relation to Horizon’s business affairs; and (7) the Acadia defendant's were liable for civil conspiracy. Because we have concluded that the evidence of lost profits was legally insufficient, we will review the sufficiency of the evidence of Horizon’s theories of liability that would allow for recovery for the trade-secret and business-expenses damages found by the jury — theft of trade secrets, fraud, and fraud' by nondisclosure — and that are raised by the Acadia defendants on appeal.

We may sustain a legal sufficiency challenge only when (l)the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the' evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999). Anything more than a scintilla of evidence is legally sufficient to support the finding. Cont’l Coffee, 937 S.W.2d at 450. More than a scintilla of evidence exists if the evidence, even if circumstantial, furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Rocor Int'l, Inc. v. Nat'l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex.2002); Russell v. Russell, 865 S.W.2d 929, 933 (Tex.1993).

a. Theft of trade secrets

The Acadia defendants attempt to challenge the jury’s findings that the individual defendants intentionally committed theft of Horizon’s property or trade secrets. - Their argument seems to be that after answering “yes” that the individual defendants did so steal, misappropriate, and convert Horizon’s property or trade secrets,- the jury found that the value of the misappropriated trade secrets was zero, the value of the converted proprietary information was zero, but the fair market value of the stolen property or trade secrets was $50,000, which is an insupportable conflict. • Although- given time to review the jury verdict for any “inconsistency,” the Acadia defendants raised no objection to this alleged conflict in the jury's answers before the jury was discharged. ■ A complaint of conflicting jury findings must be raised before the jury is discharged to preserve any error for our review. Kitchen v. Frusher, 181 S.W.3d 467, 473 (Tex.App.-Fort Worth 2005, no pet.) (op. on reh’g); see also Tex. R. Civ. P. 295. The Acadia defendants failed to preserve this error, and we overrule this portion of issue four.

b. Fraud and fraud by nondisclosure

The Acadia defendants next attempt to challenge the jury’s findings that Saul,'Pa-lus, Ulasewicz, and Bayma committed fraud and fraud by nondisclosure and the jury’s attendant damages findings regarding Palus, Ulasewicz, and Bayma. The entirety of their argument focuses on the record facts surrounding these findings:

[T]he jury found that Saul, Palus, Ula-sewicz, and Bayma had committed fraud and fraud by non-disclosure in connection with expense reports for trips on June 8 and June 29, 2011. ([cite to jury charge in the clerk’s record]) These are the trips during which the four admit they met to discuss their plans for PRP. The jury awarded damages of $2,601.41 against Palus, $1,398⅝45 against Ulasew-icz, and $1,049.38 against Bayma. ([cite to jury eharge in the clerk’s record])

Although we are unsure what the Acadia defendants specifically are attacking, if they are challenging the sufficiency of the evidence to support each of these findings, the above-quoted statement is insufficient to appropriately raise such an evidentiary argument. See, e.g., McCullough v. Scarbrough, Medlin & Assocs., Inc., 435 S.W.3d 871, 912 (Tex.App.-Dallas 2014, pet. denied) We overrule this portion of issue four.

C. ExemplaRY Damages

1. Sufficiency of the Evidence

The Acadiá defendants argue as part of their fifth issue that the evidence was legally insufficient to support the jury’s malice finding against the individual defendants because there was no evidence that the individual defendants specifically intended -to cause a substantial injury that would support exemplary damages. The jury was- asked in question 21 whether it found “by clear and convincing evidence that the harm to Horizon from [the individual defendants’ breach of fiduciary duty, intentional interference with the non-competition covenants, misappropriation of trade secrets, conversion of proprietary information, theft of trade secrets or property, and knowing access of Horizon’s computer system] resulted from malice by Saul, Palus, Ulasewicz, Bayma, or Pie-chocki.” Similarly, the jury was asked in question 22 whether clear and convincing evidence showed that the harm to Horizon was a result of Saul’s, Palus’s, Ulasewicz’s, and Bayma’s fraud and fraud by nondisclosure in submitting expense reports for reimbursement for the June 2011 meetings. The jury answered “yes” for each named individual defendant in question 21 and question 22. In response to question 23, the jury awarded Horizon $1,750,000 in exemplary damages against the individual defendants: $500,000 against Saul; $500,000 against Ulasewicz; $250,000 against Palus; $250,000 against Bayma; and $250,000 against Piechocki. The jury was not asked specifically to award exemplary damages against either PRP or Acadia.

In their reply brief, the Acadia defendants expound on their legal-insufficiency argument raised in their opening. brief:

[Insufficient evidence establishes the defendants engaged in “aggravated” conduct of the type that warrants [exemplary] damages. The defendants were competitive and eager to break into the expanding market for contract-based management services in a unique sector of the health care industry. Their enthusiasm for accessing this market did not come at Horizon’s expense, as Horizon agreed the defendants did not lure any of its existing customers away when they formed PRP. Rather, the defendant tapped new leads and customers unknown to-Horizon. This very activity— competing by tapping into new market share and -.utilizing Horizon’s forms— was the basis for Horizon’s underlying tort claims for misappropriation of trade secrets, fraud, harmful access by computer- and civil theft. Horizon did not establish, by clear and convincing evidence, “aggravated” conduct independently or qualitatively different from Horizon’s tort claims for lost profits, diminished market value, and a minor amount of expenses.

The Acadia defendants did not include any record references or citations to legal authorities to support these factual statements and legal precepts.

In any event, exemplary damages may be awarded, if Horizon produced clear' and convincing evidence that its harm resulted, from the individual defendants’ fraud or malice. See Tex. Civ. Prac. & Rem. Code Ann. § 41.003(a)-(b) (West 2015). Clear and convincing evidence is “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Id. § 41.001(2) (West 2015). As the jury was charged, malice is “a specific intent by the defendant to cause substantial injury or harm to the claimant.” Id. § 41.002(7) (West 2015). In their opening brief, the Acadia defendants focus solely on the sufficiency of the evidence to show malice and do not sufficiently address fraud. We will do likewise and will also determine if the exemplary damages are reasonable and proportionate to the actual damages recovered, given that we have concluded the lost-profit award must be vacated. See id. § 41.013(a) (West 2015) (requiring intermediate appellate courts to detail reasons and specific facts in reviewing exemplary-damage awards); Bunton v. Bentley, 153 S.W.3d 50, 51 (Tex.2004) (requiring appellate court to address whether exemplary damages are excessive when compared to actual damages even if not raised oh appeal).

In reviewing the legal sufficiency of the evidence to support an actual malice finding, which must be proven by clear and convincing evidence, we must consider all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that the defendant acted with actual malice. Romero v. KPH Consol., Inc., 166 S.W.3d 212, 220-21 (Tex.2005); Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 609, 627 (Tex.2004). Malice may be shown through direct or circumstantial evidence. See Soon Phat, L.P. v. Alvarado, 396 S.W.3d 78, 110 (Tex.App.-Houston [14th Dist,] 2013, pet. denied).

We conclude that the evidence was legally sufficient to support the jury’s finding that the individual defendants acted with malice. Each of the individual defendants were highly-placed employees at Horizon. Part of the business plan that Saul presented to Acadia regarding the idea of forming an Acadia subsidiary recognized that Horizon’s customers would have to be targeted. Saul cautioned Acadia’s president, Turner, that any attempt to “orchestrate a management team ‘lift-out’ ” while the individual defendants were employed by Horizon carried “risk,” specifically a “claim [of] tortious interference,” One e-mail from Ulasewicz to Saul, which was sent while both were employed by Horizon, and three days before Saul made his presentation to Acadia, was particularly damning: ,

Here are my thoughts on a 12-24 month [strategy] relative to positioning. This time frame is critical to us in terms of success. Based on our preliminary sales plan as presented, we are in fact saying that we are going to take [a] certain number of agreements out of Horizon’s hide, both new deals but also terming contracts.... I would also recommend you begin to group the contracts we know are coming up over the next two years and place them in maybe three categories from In Play to Unlikely to Switch.... We also need to know not only the termination dates but much more importantly any rollover dates, this is critical.

... The more members of our senior management we bring over the greater our ability to shape and hone a message to potential clients that is based implicitly and explicitly on our knowledge that [their] Horizon exists in name only.... I do advocate we get either Palus or [Piechocki] and .. we should bring in Bayma. Hurting Horizon early and often is a business [strategy] and a good one.....

... I cannot think of a bigger body blow relative to impacting future new sales for Horizon than to get Piechocki out of there.

... The message to potential clients is Pedigree — we need to convey this is not a startup, this is a logical continuation of the undeniably established Leadership, Experience 'and Expertise that maintained Horizon in its number one position for the last ten years'.

... [Transition timing is very important I believe. We need to gut punch them as we leave, to me that means having all of our ducks in a row so we can move quickly into the market. Let’s make sure we talk around timelines before you commit, I know you are anxious to leave but if you wait for the right time, it will be all the sweeter. Business first — success is the best r[e]venge— trust me on this.

Once Acadia decided to proceed with Saul’s plan, Saul forwarded Ulasewicz’s, Palus’s, and Bayma’s resumes to Turner. Bayma questioned Saul extensively about the benefits she would receive as an Acadia executive. Bayma further recommended “bringfing] more technology” to Acadia clients than that provided by Horizon and “integrating clinical policies, systems with the Acadia hospitals.” Saul told Turner that Acadia should “go hard” after Piechocki, which would “put a real hurt on the competition.” Ulasewicz and Saul discussed how to convince Horizon customers to use PRP’s services. Saul requested an external hard drive for his Horizon computer, which 'Horizon paid for, and downloaded “everything that was non-financial on [Horizon’s] server.” He instructed his secretary to disable any encryption on .the computer and to not re-enable it. Saul also e-mailed many Horizon confidential documents to himself before resigning.

Before leaving Horizon, Saul, Ulasewicz, Bayma, and Palus met away from Horizon offices to discuss their plans for the subsidiary. Palus, Ulasewicz, and Bayma sought and received reimbursement from Horizon for the costs of this trip. Saul .cautioned the group to keep their “plans discrete [sic]” and described their planned, orchestrated resignations. In addition, Saul checked out the individual defendants’ personnel files in April 2011, shortly before his presentation to Acadia, and kept them until August 15, 2011, shortly before he resigned.

Before resigning to work for PRP, Pie-chocki e-mailed many Horizon documents to his personal e-mail address, ■ including Horizon’s lead list. Piechocki and Ulasew-icz later used this list to create a lead list for PRP. Ulasewicz told Saul, Palus, Pie-chocki, and Bayma that the disclosure of the newly-formed PRP lead list “or any related strategy” would “be viewed as an act of treason against the group.” Pie-chocki later used Horizon’s confidential contract form and merely substituted “PRP” everywhere it provided “Horizon.” While he was still employed by Horizon, Ulasewicz found out that a potential Horizon client, which previously had been unable to contract with Horizon, had determined it could use Horizon’s services. Ulasewicz told no one at Horizon and contacted the company after he joined PRP.

This legally sufficient evidence supports the jury’s finding of malice by the individual defendants. See, e.g., Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 883-84 (5th Cir.2013); Nova Consulting Grp., Inc. v. Eng’g Consulting Servs., Ltd., 290 Fed.Appx. 727, 740-41 (5th Cir.2008); Lundy v. Masson, 260 S.W.3d 482, 496-97 (Tex.App.-Houston [14th Dist.] 2008, pet. denied). We overrule this portion of issue five.

2. Constitutional Excessiveness

Although not raised by the Acadia defendants on appeal, we must also address whether the exemplary-damage awards were excessive in light of the sustainable awards for actual- damages and, thus, unconstitutional. See Bunton, 153 S.W.3d at 51, 54; see also Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 308 (Tex.2006) (“We review not whether the exemplary damage award is exorbitant ..., but whether it is constitutional.”). We have concluded that $55,049.24 of actual damages are recoverable: $50,000 for the fair market value' of the trade-secret items that the individual defendants misappropriated and $5,049.24 for the fraudulent reimbursements Palus, Ulasewicz, and Bayma requested from Horizon for their pre-resignation trip to meet about their plans for PRP. The jury awarded á total of $1,750,000 in exemplary damages against the individual defendants: $500,000 each against Saul and Ulasewicz and $250,000 each against Palus, Bayma, and Piechocki.

.Although exemplary damages are imposed to punish a defendant, they may not be grossly disproportionate to the gravity of the defendant’s conduct. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 426, 123 S.Ct. 1513, 1524, 155 L.Edüd 585 (2003). In determining whether the jury’s award is grossly excessive or disproportionate we consider (1) the degree of reprehensibility of. the defendant’s misconduct, (2) the disparity between the actual or potential harm suffered by the plaintiff and the exemplary-damages award, and (3) the difference between the exemplary damages awarded by the jury and the penalties authorized or imposed in comparable cases. Id. at 418, 123 S.Ct. at 1520.

The most important of the three considerations is the degree of reprehensibility of the defendant’s conduct. Id. at 419, 123 S.Ct. at 1521. Reprehensibility, in turn, considers' whether the 'harm caused was physical as opposed to economic, the tortious conduct evinced a reckless disregard of the health or safety of others, the target of the conduct had financial vulnerability, the conduct involved repeated actions or was an isolated incident, arid the harm was the result of intentional malice, trickery, deceit, or mere accident. Id. Here, there was no physical injury to Horizon, Horizon did not allege that the individual defendants exhibited reckless disregard for others’ health or safety, and Horizon was not financially vulnerable. However, the individual defendants’ conduct was repeated and intentional. See Bennett v. Reynolds, 315 S.W.3d 867, 874-75 (Tex.2010) (considering surrounding circumstances beyond the underlying tort in determining reprehensibility). The disparity between the exemplary damages and the compensatory damages after our reduction of Horizon’s compensatory damages is a more than thirty-to-one ratio. Finally, the criminal penalties authorized for theft of trade secrets are imprisonment for two to ten years and a maximum $10,000 fíne. See Tex. Penal Code Ann. § 12.34 (West 2011), § 31.05(c).

Few awards that exceed a single-digit ratio will satisfy due process, and the Supreme Court has suggested that a four-to-one ratio perhaps is the limit of what the constitution will allow. Campbell, 538 U.S. at 425, 123 S.Ct. at 1524. The Texas Supreme Court has concluded that a 4.33-to-1 ratio violated due process when only one of the reprehensibility factors was present. See Tony Gullo, 212 S.W.3d at 308-10; see also Bennett, 315 S.W.3d at 878-80 (analyzing Tony Gullo’s disapproval of 4.33-to-l ratio and concluding absence of particularly egregious act negated requested upward departure from 4-to-l ratio). While the individual defendants’ conduct may be categorized as repeated and intentional, the degree of its reprehensibility is mitigated by the economic nature of the harm to Horizon, the lack of any reckless disregard for the health or safety of others, and Horizon’s financial status. Finally, the maximum criminal fine for theft of trade secrets is $10,000. We conclude that the jury’s award of exemplary damages, given the lack of legally sufficient evidence of lost profits, was excessive and unconstitutional.

The remedy for excessive punitive damages is to suggest a remittitur, if possible, or remand for a new trial. Guevara v. Ferrer, 247 S.W.3d 662, 670 (Tex.2007). We initially ordered a remittitur amount that reflected the exemplary-damages total to be in proportion to the awarded actual damages — the total amount of exemplary damages against the individual defendants added together could not exceed the constitutional ratio to actual damages. On rehearing, Horizon argues that the proportion of actual damages to exemplary damages is measured on a per-defendant basis. The law on this point is far from clear, but we believe Horizon has the more reasoned argument and conclude that the exemplary damages against each individual defendant should be compared to and proportionate to the amount of actual damages awarded by the jury. See Carlton Energy Grp., LLC v. Phillips, 369 S.W.3d 433, 459-61 (Tex.App.-Houston [1st Dist.] 2012) (considering exemplary-damage amounts on a per-defendant basis in concluding that ratio of actual damages to exemplary damages was not constitutionally excessive), aff'd in part & rev’d in part on other grounds, — S.W.3d -, 2015 WL 2148951; Huynh v. Phung, No. 01-04-00267-CV, 2007 WL 495023, at *13-14 (Tex.App.-Houston [1st Dist.] Feb. 16, 2007, no pet.) (mem.op.) (comparing each exemplary-damage award against each defendant in determining ratio to compensatory damages and excessiveness); cf. Rose v. Doctors Hosp., 801 S.W.2d 841, 846 (Tex.1990) (op. on reh’g) (calculating wrongful-death damages governed by statutory cap on a per-defendant basis); Seminole Pipeline Co. v. Broad Leaf Partners, Inc., 979 S.W.2d 730, 751 (Tex.App.-Houston [14th Dist.] 1998, no pet.) (applying exemplary-damage cap in current section 41.008 on a per-defendant basis); 28 Tex. Jur.3d Damages § 350 (2015) (“Furthermore, the statutory cap [on exemplary damages in section 41.008] is applied on a per-defendant basis, not to the entire award of exemplary damages.”). But see Planned Parenthood of Columbia/Willamette Inc. v. Am. Coalition of Life Activists, 422 F.3d 949, 963-64 (9th Cir.2005) (“We shall remit to a sum for each plaintiff that is nine times that plaintiffs compensatory recovery, and we shall allocate that amount of punitive damages among defendants in the same proportion as the jury did in its verdicts.”), cert. d