Cotter & Sons, Inc. v. BJ Corp.

549 S.W.3d 715
CourtCourt of Appeals of Texas
DecidedOctober 25, 2017
DocketNo. 04-16-00186-CV
StatusPublished
Cited by4 cases

This text of 549 S.W.3d 715 (Cotter & Sons, Inc. v. BJ Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cotter & Sons, Inc. v. BJ Corp., 549 S.W.3d 715 (Tex. Ct. App. 2017).

Opinion

After the parties rested, the trial court held a charge conference. In the conference, Cotter & Sons did not object to the breach of contract or commercial bribery questions, but it raised a no-evidence objection to the negligent misrepresentation question.

The jury found Cotter & Sons breached the Contracts and the Contracts were not procured by commercial bribery. The jury's verdict found damages as follows:

• Breach of contract: $431,716.84
• Negligent misrepresentation: $50,000.00
• Quantum meruit: $431,716.84 (same amount as breach of contracts)

The trial court rendered judgment and awarded NBS the following:

• Breach of contract damages: $431,716.84
• Negligent misrepresentation damages: $50,000.00
• No award in the alternative for quantum meruit damages
• Attorney's fees for trial: $348,596.00
• Conditional attorney's fees for an appeal: $25,000.00
• Conditional attorney's fees for a petition for review: up to $12,500.00
• Interest on past due debt: $23,642.35
• Prejudgment interest: $76,163.50
• Postjudgment interest
• Costs of court: $1,312.50

Appellants filed a motion for new trial contending the jury's findings on the breach of contract and commercial bribery questions were against the great weight and preponderance of the evidence. From the record before us, it appears the motion for new trial was denied by operation of law and this appeal ensued.

BREACH OF CONTRACT CLAIM , BRIBERY DEFENSE

For NBS's breach of contract claim and Cotter & Sons's affirmative defense of commercial bribery, the procedural posture constrains the relief Cotter & Sons can obtain on appeal.

A. Charge Questions on Breach of Contract, Bribery

1. Question 1: Breach of Contract

The first question in the jury charge asked whether Cotter & Sons breached the Contracts with NBS. Cotter & Sons did not object to the question. The jury found Cotter & Sons breached the Contracts. Although Cotter & Sons filed a motion for new trial, the motion did not raise a legal sufficiency challenge to the jury's finding; instead, it argued the jury's *721finding was against the great weight and preponderance of the evidence.

2. Question 2: Bribery

As an affirmative defense to NBS's breach of contract claim, Cotter & Sons argued the Contracts were unenforceable because they were procured through commercial bribery. The second question in the jury charge asked whether the Contracts were procured by bribery. The terms "Contracts" and "bribery" were defined in the charge. NBS did not object to the question or the definitions. The jury found that the Contracts were not procured by bribery. In its motion for new trial, Cotter & Sons did not challenge the legal sufficiency of the evidence supporting the jury's finding of no bribery; it only argued that the jury's finding was against the great weight and preponderance of the evidence.

B. Preservation

After a jury trial, a complaint (1) that the evidence was not factually sufficient to support a jury's finding or (2) that a jury's finding was against the great weight and preponderance of the evidence must be raised in a motion for new trial or it is waived. See TEX. R. CIV. P. 324(b) ; Cecil v. Smith , 804 S.W.2d 509, 512 (Tex. 1991) ("Factual insufficiency points of error are expressly required by Rule 324(b) to be raised in a motion for new trial."); Pitts & Collard, L.L.P. v. Schechter , 369 S.W.3d 301, 322 (Tex. App.-Houston [1st Dist.] 2011, no pet.) ("A motion for new trial is a prerequisite to bringing a complaint on appeal alleging ... that a jury finding is against the great weight and preponderance of the evidence.").

Similarly, after a jury trial, to preserve a legal sufficiency complaint for review, it must be raised in "(1) a motion for instructed verdict; (2) a motion for judgment notwithstanding the verdict; (3) an objection to the submission of the issue to the jury; (4) a motion to disregard the jury's answer to a vital fact issue; or, (5) a motion for new trial." Aero Energy, Inc. v. Circle C Drilling Co. , 699 S.W.2d 821, 822 (Tex. 1985) ; accord Regan v. Lee , 879 S.W.2d 133, 135 (Tex. App.-Houston [14th Dist.] 1994, no writ). If a legal sufficiency complaint is not raised by one of these procedural steps, it is waived. See Aero Energy , 699 S.W.2d at 822 ; DFW Aero Mechanix, Inc. v. Airshares Inc. , 366 S.W.3d 204, 206 (Tex. App.-Dallas 2010, no pet.).

C. Legal Sufficiency Challenges Waived

Appellants argue the jury's verdict on the breach of contract claim must be reversed because the evidence conclusively establishes its affirmative defense of commercial bribery. As a threshold issue, NBS argues Appellants waived their legal sufficiency complaint because Cotter & Sons did not raise it in their motion for new trial.

To preserve legal sufficiency challenges to NBS's breach of contract claim and Appellants' commercial bribery defense, Appellants had to raise their points by an appropriate procedural step-such as in their objections to the charge or in their motion for new trial-but they did not. See Aero Energy , 699 S.W.2d at 822. Because they failed to properly preserve their claims of error, Appellants' legal sufficiency complaints against the jury's findings are waived. See id. ; DFW Aero Mechanix , 366 S.W.3d at 206.

D. Factual Sufficiency Challenges

Although Appellants waived their legal sufficiency challenges, they preserved their factual sufficiency complaints in their motion for new trial.

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Bluebook (online)
549 S.W.3d 715, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cotter-sons-inc-v-bj-corp-texapp-2017.