Glen Comeaux and Gwendolyn Comeaux v. Neches Federal Credit Union and Darrick McGriff, Individually and D/B/A ABC Contracting, Inc.

• Court: Court of Appeals of Texas
• Decided: January 11, 2018
• Docket: 09-16-00113-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-16-00113-CV ____________________

GLEN COMEAUX AND GWENDOLYN COMEAUX, Appellants

V.

NECHES FEDERAL CREDIT UNION AND DARRICK MCGRIFF, INDIVIDUALLY AND D/B/A ABC CONTRACTING, INC., Appellees

_______________________________________________________ ______________

On Appeal from the 136th District Court Jefferson County, Texas Trial Cause No. D-194,520

________________________________________________________ _____________

MEMORANDUM OPINION

This is an appeal from a take-nothing judgment rendered in favor of Neches

Federal Credit Union (NFCU) and Darrick McGriff, individually and doing business

as ABC Contracting, Inc., on all of Glen and Gwendolyn Comeauxs’ claims arising

from a project that involved the construction of a house. In a pro se brief, the

1 Comeauxs complain that the jury’s conclusion that they were not damaged by ABC

Contracting’s failure to complete its work on their house is unfair.

The record shows that the Comeauxs failed to preserve the various complaints

they seek to raise for the first time in their appeal. See Tex. R. App. P. 33.1

(preserving error for appellate review requires the complaining party to show that he

presented his complaint to the trial court in a timely request, objection, or motion

and that the trial court ruled on the request). Accordingly, we affirm the trial court’s

judgment.

Background

In mid-April, 2012, the Comeauxs and McGriff, doing business as ABC

Contracting, signed a construction agreement that required ABC Contracting to

construct a house for $260,000. Approximately two weeks later, the Comeauxs,

McGriff, and NFCU signed a construction loan agreement pertinent to constructing

the house. The agreement called for NFCU to loan the Comeauxs $250,000 toward

the construction of the house, and required the proceeds of the loan to be disbursed

as the work was completed. The loan proceeds were also to be used to pay for the

labor and materials that McGriff used in constructing the house, and the house was

to be built on a lot the Comeauxs owned. The Comeauxs signed a deed of trust in

NFCU’s favor to secure the loan.

2 In August 2015, the Comeauxs sued NFCU and McGriff, alleging that

McGriff abandoned the job before the house was completed. They also alleged that

NFCU allowed McGriff to draw the entire proceeds from their construction loan

even though NFCU knew or should have known that McGriff did not plan to use the

funds for the labor or material needed in the construction of their house. At the

conclusion of a jury trial, issues were submitted to the jury based upon the

Comeauxs’ claims for breach of contract, fraud, and negligence. The jury answered

the issues, and found that McGriff breached his contract with the Comeauxs, that his

breach was not excused, that he committed fraud, and that he was negligent. The

jury answered “no” to questions inquiring whether NFCU had breached its contract

with the Comeauxs, committed fraud, or acted negligently in handling the

Comeauxs’ loan. Although the jury found in the Comeauxs’ favor on the liability

issues relevant to McGriff, the jury also found they were entitled to recover no

damages against McGriff.

Following the jury’s verdict, the Comeauxs did not file any post-trial motions,

including a motion for judgment non obstante veredicto or a motion for new trial.

See Tex. R. Civ. P. 301 (authorizing a court on a proper showing and motion to

render a judgment notwithstanding the jury’s verdict); Tex. R. Civ. P. 320 (allowing

a court to grant new trials on a party’s motion or on the court’s own terms as the

3 court shall direct). Based on the arguments the Comeauxs present in their brief, they

raise three basic claims in their appeal, claiming (1) the overwhelming weight of the

evidence contradicts the jury’s finding in favor of NFCU, (2) the evidence

established that NFCU damaged them, and (3) the jury’s findings that McGriff did

not damage them are contrary to the greater weight and preponderance of the

evidence introduced in the trial.

Analysis

In a case tried to a jury, to complain on appeal that a jury finding is not

supported by factually sufficient evidence, or that a finding is against the greater

weight and preponderance of the evidence, a party must have first raised the matter

in a motion for new trial. See Tex. R. Civ. P. 324(b)(3); see also Fredonia State Bank

v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 281 (Tex. 1994); Cecil v. Smith, 804

S.W.2d 509, 510 (Tex. 1991). Parties to an appeal are required to raise factual

sufficiency complaints about a jury’s verdict with the trial court before they can be

reviewed on appeal. See Tex. R. App. P. 33.1(a). Because the record shows the

Comeauxs did not bring their complaints about the jury’s verdict to the trial court’s

attention in an appropriate post-trial motion, we conclude they failed to preserve

their issues for our review. We overrule the Comeauxs’ issues and affirm the trial

court’s final judgment.

4 AFFIRMED.

_________________________ HOLLIS HORTON Justice

Submitted on November 15, 2017 Opinion Delivered January 11, 2018

Before McKeithen, C.J., Kreger and Horton, JJ.