Feuerberg v. Bush

175 S.W.3d 442, 2005 Tex. App. LEXIS 6761, 2005 WL 1994951
CourtCourt of Appeals of Texas
DecidedAugust 19, 2005
DocketNo. 05-04-00729-CV
StatusPublished

This text of 175 S.W.3d 442 (Feuerberg v. Bush) 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
Feuerberg v. Bush, 175 S.W.3d 442, 2005 Tex. App. LEXIS 6761, 2005 WL 1994951 (Tex. Ct. App. 2005).

Opinion

OPINION

Opinion by

Justice WRIGHT.

This is a breach of contract action filed by Bush with counterclaims asserted by Feuerberg. Jason Feuerberg appeals from a judgment awarding Jeffery Bush damages and attorney’s fees. In two points of error, Feuerberg contends: (1) the evidence is legally and factually insufficient to support the judgment; and (2) the trial court erred in failing to award him damages and attorney’s fees for Bush’s breach of the contract. We sustain Feuer-berg’s first point of error, reverse the trial court’s judgment, and render judgment that Bush take nothing on his breach of contract claim.

Background

Bush owned an auto parts store named Horsepower Store, Inc. He decided to sell the store and began looking for a buyer. He met Feuerberg who, at the time, was still in college. Feuerberg was interested in Horsepower and his parents gave him $30,000 to invest. On January 2, 2002, Bush and Feuerberg signed an agreement whereby Feuerberg paid Bush $30,000 and, in return, Bush was to transfer 1,500 shares to him. Thereafter, Feuerberg was to make monthly payments for additional shares. Feuerberg also became the Store’s manager. Bush became dissatisfied with Feuerberg’s management of the Store. In June of 2002, Feuerberg quit his job.

On September 10, 2002, Feuerberg made a written demand for the return of the money paid for the purchase of the stock. Bush filed this lawsuit against Feuerberg on January 28, 2003 seeking damages for Feuerberg’s failure to purchase the additional shares.1 Feuerberg filed a counterclaim alleging Bush breached the contract by failing to transfer the shares to him.

On December 31, 2003, Bush prepared a stock transfer ledger listing the transfer of shares to Feuerberg post-dated to the dates the transfers should have been made. At the time Bush created this written documentation of the transfer of [445]*445shares, the corporation had ceased doing business and was worthless. In February 2003, The Horsepower officially ceased doing business.

The case was tried before a jury. The jury found that both Bush and Feuerberg breached the agreement. The jury awarded $70,500 to Bush and zero damages to Feuerberg. The trial court rendered judgment according to the jury’s verdict and this appeal timely followed.

Standard of Review

Feuerberg raises two points of error concerning whether the evidence supports the jury’s answers to questions in the jury charge.

An appellant attacking the legal sufficiency of an adverse jury finding on which he had the burden of proof must demonstrate that the evidence establishes, as a matter of law, all vital facts in support of the finding. Dow Chem,. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001) (per cu-riam). In reviewing such a claim, we first examine the record for evidence supporting the jury’s finding, while ignoring all evidence to the contrary. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). If there is no evidence to support the fact finder’s answer, only then will we review the entire record to assess whether the contrary proposition was established as a matter of law. See Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex.1991).

If an appellant challenges the factual sufficiency of a jury finding regarding an issue upon which the appellant had the burden of proof, he must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem., 46 S.W.3d at 241. In reviewing this challenge, we consider all of the evidence in determining whether the finding is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. See In re King’s Estate, 150 Tex. 662, 665, 244 S.W.2d 660, 661 (1951). We may reverse and remand for a new trial if we conclude the jury’s failure to find is against the great weight and preponderance of the evidence. See Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex.1988).

Breach of the Agreement

In his first point of error, Feuerberg contends the evidence is legally and factually insufficient to support the jury findings that he breached the Agreement and that his breach was not excused. Specifically, he contends: (1) under the unambiguous terms of the Agreement, he was not in breach, and (2) the evidence does not support the jury finding that Feuerberg’s breach was not excused by Bush’s failure to transfer the initial 1,500 shares paid for by Feuerberg.

The Agreement provides, in pertinent part, as follows:

1. Sale and Transfer of the Shares. Seller shall sell and transfer the Shares to Buyer, and Buyer shall tender to Seller the purchase price per share for the Shares, as follows:
(a) Upon the signing of this Agreement, Seller shall sell and transfer One Thousand Five Hundred (1,500) shares of the Shares to Buyer, and Buyer shall pay Seller Thirty Thousand Dollars ($30,000) in cash for the One Thousand Five Hundred (1,500) shares:
(b) Seller shall then sell Three Thousand Six Hundred (3,600) shares of the remaining Shares to Buyer and Buyer shall pay Seller Twenty Dollars ($20.00) per share for each of the Three Thousand Six Hundred (3,600) shares for a total of Seventy-Two Thousand Dollars [446]*446($72,000); provided that Buyer pay Seller no less than Five Hundred Dollars ($500) on the first of each and every month following the date this Agreement is signed until all of the Three Thousand Six Hundred (3,600) shares are purchased. Seller shall convey and transfer to Buyer on the thirty-first day of December of each year following the date this Agreement is signed the number of such shares for which Seller has been paid-in-full. However, in the event that a company distribution or dividend (See (d) below) is paid to shareholders, Seller shall transfer and convey to Buyer all shares that Buyer has paid for in-full prior to such distribution or dividend ....

The jury found Feuerberg failed to comply with the requirement in section 1(b) to purchase an additional 3,600 shares.2 Feuerberg contends this finding was error because, under the unambiguous terms of the contract, he was not in breach. Feuerberg, however, did not object to the submission of this question asking the jury to interpret this provision of the Agreement.

Any complaint as to a jury question is waived unless a specific objection is submitted to the trial court. Tex.R. Crv. P. 274. Failure to object to a jury question before the charge is submitted to the jury waives the issue on appeal. Tex.R.App. P. 33.1; State Farm Fire & Cas. Co. v. Gros, 818 S.W.2d 908, 916 (Tex.App.-Austin 1991, no writ). Because Feuerberg did not object to the question asking whether he was in breach of the Agreement, he has not preserved this complaint for review.

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Related

Dow Chemical Co. v. Francis
46 S.W.3d 237 (Texas Supreme Court, 2001)
In Re King's Estate
244 S.W.2d 660 (Texas Supreme Court, 1951)
Victoria Bank & Trust Co. v. Brady
811 S.W.2d 931 (Texas Supreme Court, 1991)
Cropper v. Caterpillar Tractor Co.
754 S.W.2d 646 (Texas Supreme Court, 1988)
State Farm Fire & Casualty Co. v. Gros
818 S.W.2d 908 (Court of Appeals of Texas, 1991)
Sterner v. Marathon Oil Co.
767 S.W.2d 686 (Texas Supreme Court, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
175 S.W.3d 442, 2005 Tex. App. LEXIS 6761, 2005 WL 1994951, Counsel Stack Legal Research, https://law.counselstack.com/opinion/feuerberg-v-bush-texapp-2005.