Radera, LLC v. Steelco, Inc.

• Court: Court of Appeals of Texas
• Decided: August 3, 2017
• Docket: 09-16-00169-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-16-00169-CV ________________

RADERA, LLC, Appellant

V.

STEELCO, INC., Appellee __________________________________________________________________

On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 14-01-00799-CV __________________________________________________________________

MEMORANDUM OPINION

This is an appeal from a final judgment following a jury trial in a case

involving alleged breach of contract for failure to pay invoices for materials and

services provided at a construction project. In its sole issue, appellant Radera, LLC

(“Radera”) argues that the trial court erred by granting a joint and several judgment

in favor of appellee Steelco, Inc. (“Steelco”) against both Radera and its co-

defendant and by denying Radera’s motion for partial summary judgment. We affirm

the trial court’s judgment. 1 Steelco sued Radera and another party, Jacky’s Design, Inc. (“Jacky’s”),

claiming that “Steelco performed steel erection labor for the benefit of Kingwood

Emergency Hospital . . . under a subcontract agreement executed by Jacky’s

Design.” According to Steelco’s petition, Steelco provided labor to Jacky’s to be

incorporated into the project, which was owned by Radera. Steelco pleaded that

Jacky’s “was an original contractor to Radera.” Steelco further pleaded that it filed

mechanic’s and materialman’s liens against the property. Steelco asserted claims for

breach of contract and quantum meruit and pleaded that it sought to foreclose on its

affidavit claiming a mechanic’s and materialman’s lien against the property.

Radera did not request or provide a reporter’s record of the trial. The case was

called for a jury trial on November 30, 2015. The questions asked of the jury

included (1) whether Jacky’s failed to comply with the agreement, (2) whether

Steelco failed to comply with the agreement, (3) whether, if both parties failed to

comply, which party failed to comply first, (4) what sum of money would fairly

compensate Steelco for its damages that resulted from Jacky’s failure to comply, (5)

what is a reasonable fee for the services of Steelco’s attorneys, and (6) whether

Jacky’s acted in good faith in disputing its obligations under the agreement.

The jury found that Jacky’s failed to comply with the agreement, Steelco did

not fail to comply with the agreement, and $95,902.46 would reasonably compensate

2 Steelco for Jacky’s failure to comply with the agreement. The jury awarded

attorney’s fees to Steelco’s counsel for trial, representation in the Court of Appeals,

and representation in the Supreme Court of Texas, and found that Jacky’s did not act

in good faith in disputing its obligations under the agreement. The trial court signed

a final judgment, in which it found that Jacky’s and Radera were jointly and severally

liable to Steelco for actual damages of $82,660.01, pre-judgment interest, court

costs, and post-judgment interest. In addition, the trial court ordered that Jacky’s and

Radera are jointly and severally liable to Steelco for Steelco’s trial and appellate

attorney’s fees. Furthermore, the trial court ordered that “an order of sale shall issue

to any sheriff or any constable in the State of Texas, directing him to seize and sell

the collateral, . . . as under execution, in satisfaction of this judgment and to foreclose

[the] Mechanic’s and Materialman’s Lien . . . and that the proceeds from such sale

be allocated to Steelco, Inc[.]” As discussed above, the trial court did not submit any

questions regarding the mechanic’s and materialman’s lien or its validity to the jury,

but the trial court nevertheless found that the lien was valid and ordered that the lien

be foreclosed upon.

In its sole appellate issue, Radera argues that the trial court erred by granting

a joint and several judgment in favor of Steelco against both Radera and Jacky’s and

by denying Radera’s motion for partial summary judgment. This Court’s review of

3 the clerk’s record does not reveal a written motion for partial summary judgment

filed by Radera. From the limited appellate record filed by Radera, this Court cannot

determine whether Radera filed a motion for partial summary judgment or what it

contained, let alone whether the trial court erred by denying said motion, nor can

this Court determine whether the issue of the validity of the lien was tried by consent.

In addition, this Court cannot evaluate the evidence supporting the imposition of

joint and several liability in the absence of a reporter’s record. “When a reporter’s

record is necessary for appellate review and the appellant fails to file the reporter’s

record, a presumption arises that the reporter’s record would support the trial court’s

judgment.” Rittenhouse v. Sabine Valley Ctr. Found., 161 S.W.3d 157, 165 (Tex.

App.—Texarkana 2005, no pet.) (footnote omitted). Without the reporter’s record,

we cannot determine that the trial court erred. Accordingly, we overrule Radera’s

sole issue and affirm the trial court’s judgment.

AFFIRMED.

______________________________ STEVE McKEITHEN Chief Justice

Submitted on May 16, 2017 Opinion Delivered August 3, 2017

Before McKeithen, C.J., Kreger and Horton, JJ. 4