ACCEPTED
01-17-00432-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/20/2018 2:03 PM
CHRISTOPHER PRINE
CLERK
No. 01-17-00432-CV
IN THE COURT OF APPEALS 1st COURTFILED IN
OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS,HOUSTON, TEXAS
HOUSTON, TEXAS 3/20/2018 2:03:13 PM
CHRISTOPHER A. PRINE
Clerk
SPORTSCAPERS CONSTRUCTION, INC.
AND RODERICK THOMPSON,
Defendants and Appellants
v.
EVELYN M. MITCHELL AND DOUGLAS BROWN,
Plaintiffs and Appellees
On Appeal from the 400th District Court
of Fort Bend County, Texas
APPELLEES’ RESPONSE BRIEF
BURFORD PERRY, LLP
Shawn A. Johnson
State Bar No. 24097056
Robert R. Burford
State Bar No. 03371700
909 Fannin St., Suite 2630
Houston, Texas 77010
Telephone: (713) 401-9790
Facsimile: (713) 993-7739
sjohnson@burfordperry.com
rburford@burfordperry.com
ATTORNEYS FOR APPELLEES
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellees include the following because Appellants’ Brief does not
include the required information. Tex. R. App. P. 38.1(a), 38.2(a)(1)(A).
Appellants: Sportscapers Construction, Inc. and Roderick
Thompson
Trial and Appellate Counsel:
Troy Tindal
State Bar No. 24066198
17225 El Camino Real, Suite 190
Houston, Texas 77058
troy@tindallawfirm.com
Appellees: Evelyn M. Mitchell and Douglas Brown
Trial Counsel:
Michael V. Brophy
State Bar No. 03082630
12946 Dairy Ashford, Suite 370
Sugar Land, Texas 77478
mike@brophylawfirm.com
Appellate Counsel:
Shawn A. Johnson
State Bar No. 24097056
Robert R. Burford
State Bar No. 03371700
909 Fannin St., Suite 2630
Houston, Texas 77010
sjohnson@burfordperry.com
rburford@burfordperry.com
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ...........................................................ii
TABLE OF CONTENTS ................................................................................. iii
TABLE OF AUTHORITIES.............................................................................. vi
STATEMENT OF THE CASE ............................................................................ 1
STATEMENT ON ORAL ARGUMENT................................................................ 2
REPLY TO ISSUES PRESENTED AND CROSS-POINTS....................................... 2
STATEMENT OF FACTS ................................................................................. 3
I. Appellees sign a contract containing a no-cause termination
provision, under which Appellants agreed to construct a tennis court on
Appellees’ property to their specifications and in a good and
workmanlike manner for $85,000, with half the balance due up front. 4
II. After Appellants commence work, Appellees quickly lose
confidence in Appellants’ ability to perform in a good and workmanlike
manner and ask that all work stop while they get the project back on
track. When all the issues appear to be resolved, Appellants demand
that Appellees modify the agreement by signing waivers of certain
contractual terms. When Appellees refuse, Appellants turn the matter
over to their attorney. ............................................................................. 7
III. Appellees request a refund of their deposit after terminating the
contract, and Appellants and their attorney go silent, forcing Appellees
to file suit. ............................................................................................... 9
IV. The lawsuit proceeds to a four-day jury trial, in which
Appellants’ counsel engages in a remarkable display of gamesmanship,
deceit, and improper jury argument, and the jury finds that neither
party breached the contract without reaching the damages questions
that had been conditioned on a finding of breach. ............................... 11
V. Appellants move for a take-nothing judgment, which the trial
court later denies. ................................................................................. 16
iii
VI. Appellees file a combined motion for judgment, motion for
judgment notwithstanding the verdict, and motion for new trial, asking
that the court apply the plain language of the contract and award
Appellees their $42,500 deposit, less the “charges” Sportscapers
incurred prior to their termination of the contract.............................. 17
VII. The trial court grants Appellees’ motion for judgment
notwithstanding the verdict and, four days later, enters a final
judgment awarding Appellees $25,000, “representing the sums actually
paid to Defendant Sportscapers Construction, Inc., by the Plaintiffs
herein, less the sums charged by Defendant Sportscapers Construction,
Inc. for the services it rendered prior to the lawful termination of its
services.” ............................................................................................... 19
SUMMARY OF THE ARGUMENT ................................................................... 20
ARGUMENT................................................................................................ 24
I. Appellants waived error as to the propriety of the trial court’s
decision to grant Appellees’ motion for judgment notwithstanding the
verdict by failing to produce an adequate appellate record for this
Court’s consideration. ........................................................................... 24
II. In any event, the record conclusively establishes that Appellants
breached the contract by failing to comply with the termination
provision when Appellants refused to refund Appellees’ $42,500
deposit, less the “charges” Sportscapers incurred prior to Appellees’
lawful exercise of their right to terminate the contract. ..................... 28
III. Appellants ask this Court to disregard the well-established
standard for reviewing a trial court’s entry of a judgment
notwithstanding the verdict and ignore that an appellate court must
affirm the judgment even if the trial court’s rationale is erroneous when
the judgment can be supported on a basis presented in the motion. .. 29
IV. Appellants are simply postponing the inevitable to further delay
Appellees’ recovery and force Appellees to incur additional attorneys’
fees recovering funds that unquestionably belong to them. ................ 38
PRAYER ..................................................................................................... 39
iv
CERTIFICATE OF COMPLIANCE ................................................................... 40
CERTIFICATE OF SERVICE .......................................................................... 40
RULE 38 APPENDIX ................................................................................... 41
v
TABLE OF AUTHORITIES
Cases
B & W Supply, Inc. v. Beckman, 305 S.W.3d 10 (Tex. App.—Houston [1st
Dist.] 2009, pet. denied)........................................................................ 24
Bekins Moving & Storage Co. v. Williams, 947 S.W.2d 568 (Tex. App.—
Texarkana 1997, no writ) ............................................................... 31, 35
Cavazos v. Cintron, No. 13-04-00529-CV, 2006 WL 1766189 (Tex. App.—
Corpus Christi–Edinburg June 29, 2006, no pet.) (mem. op.) ............. 32
Christiansen v. Prezelski, 782 S.W.2d 842 (Tex. 1990) .......................... 26
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005).............................. 25
Cmty. Health Sys. Prof’l Services Corp. v. Hansen, 525 S.W.3d 671 (Tex.
2017)........................................................................................................ 6
Curry v. Texas Dep’t of Pub. Safety, 472 S.W.3d 346 (Tex. App.—Houston
[1st Dist.] 2015, no pet.) ....................................................................... 26
Donahoe v. Jones, No. 01-15-00191-CV, 2016 WL 796892 (Tex. App.—
Houston [1st Dist.] Mar. 1, 2015, no pet.) ............................................ 26
Englander Co. v. Kennedy, 428 S.W.2d 806 (Tex. 1968) ........................ 26
Enterprise Leasing Co. of Houston v. Barrios, 156 S.W.3d 547 (Tex. 2004)
............................................................................................................... 25
Fisher v. Evans, 853 S.W.2d 839 (Tex. App.—Waco 1993, writ denied) 27
Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338 (Tex. 2015) ... 25
Guar. Cty. Mut. Ins. Co. v. Reyna, 709 S.W.2d 647 (Tex. 1986) (per
curiam) ............................................................................................ 30, 35
Guerra v. Flores, No. 13-15-00533-CV, 2017 WL 4837849 (Tex. App.—
Corpus Christi–Edinburg Oct. 26, 2017, no pet.) (mem. op.) .............. 27
Gulf Land Co. v. Atl. Refining Co., 131 S.W.2d 73 (Tex. 1939).............. 31
vi
Gulf Liquids New River Project, LLC v. Gulsby Eng’g, Inc., 356 S.W.3d
54 (Tex. App.—Houston [1st Dist.] 2011, no pet.) ................................. 6
Kwik Wash Laundries, Inc. v. McIntyre, 840 S.W.2d 739 (Tex. App.—
Austin 1992, no writ) ...................................................................... 26, 27
Lesher v. Doescher, No. 02-12-00360-CV, 2013 WL 5593608 (Tex. App.—
Fort Worth Oct. 10, 2013, pet. denied) (mem. op.)............................... 32
Mercedes Dusting Serv., Inc. v. Evans, 353 S.W.2d 894 (Tex. Civ. App.—
San Antonio 1962, no writ) ................................................................... 31
Nicholson v. Fifth Third Bank, 226 S.W.3d 581 (Tex. App.—Houston [1st
Dist.] 2007, no pet.)............................................................................... 26
Rogers v. Rogers, No. 01‐15‐00224‐CV, 2016 WL 3162299 (Tex. App.—
Houston [1st Dist.] June 2, 2016, no pet. h.) (mem. op.) ..................... 25
Shell Oil Products Co. v. Main St. Ventures, L.L.C., 90 S.W.3d 375 (Tex.
App.—Dallas 2002, pet. dism’d by agr.) ............................................... 36
Smitherman v. Comm’n for Lawyer Discipline, 463 S.W.3d 97 (Tex.
App.—Houston [1st Dist.] 2015, pet denied) ........................... 33, 34, 35
Speck v. Dry Bones Coffee House, No. 01-09-00605-CV, 2009 WL 4358039
(Tex. App.—Houston [1st Dist.] Dec. 3, 2009, no pet.) (mem. op.) .... 31,
35, 36
Taco Cabana, Inc. v. Exxon Corp., 5 S.W.3d 773 (Tex. App.—Houston
[14th Dist.] 1999, pet. denied) ........................................................ 32, 35
Tex. Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.3d 276
(Tex. 1994) ............................................................................................ 12
Tiller v. McLure, 121 S.W.3d 709 (Tex. 2003) ........................................ 24
Ulico Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773 (Tex. 2008) ......... 36
Vandever v. Goettee, 678 S.W.2d 630 (Tex. App.—Houston [14th Dist.]
1984, writ ref’d n.r.e.) ..................................................................... 33, 35
vii
Wallis v. United Servs. Auto. Ass’n, 2 S.W.3d 300 (Tex. App.—San
Antonio 1999, pet. denied) .................................................................... 31
Wilson v. State, No. 09-07-00589-CR, 2008 WL 5501146 (Tex. App.—
Beaumont Jan. 14, 2009, no pet.) (mem. op.) (not designated for
publication) ........................................................................................... 35
Rules
Tex. R. App. P. 34.6 ................................................................................. 27
Tex. R. App. P. 38.1 ................................................................................... 4
Tex. R. App. P. 38.2 ............................................................................... 2, 4
Tex. R. App. P. 44.1 ................................................................................. 32
Tex. R. Civ. P. 301 ................................................................................... 24
viii
STATEMENT OF THE CASE
This is a breach-of-contract suit by residential property owners who
seek a refund of their $42,500 deposit paid to the defendants for the
installation of a tennis court, less the charges the defendants incurred
before the property owners terminated the contract, as allowed by the
contract’s clear terms. Before, during, and after the trial, the defendants
consistently argued that $15,474 of charges were incurred prior to the
contract’s termination. The jury found that neither party breached the
contract without reaching questions on damages. CR 120.
The trial court granted the property owners’ motion for judgment
notwithstanding the verdict and awarded them $25,000, “representing
the sums actually paid to Defendant Sportscapers Construction, Inc., by
the Plaintiffs herein, less the sums charged by Defendant Sportscapers
Construction, Inc. for the services it rendered prior to the lawful
termination of its services.” CR 112.
On appeal, the defendants argue the trial court used the wrong
legal standard when it disregarded the jury’s verdict. However, the
defendants ignore the standard by which appellate courts review a
1
judgment notwithstanding the verdict and failed to provide an adequate
appellate record showing error requiring reversal.
STATEMENT ON ORAL ARGUMENT
Appellees respectfully request that the Court grant oral argument
in this appeal. Appellants ask this Court to depart from well-established
standards regarding Appellants’ burden to furnish the Court with an
adequate record showing reversible error and disregard the standard by
which appellate courts review a trial court’s decision to grant a judgment
notwithstanding the verdict. Oral argument would aid the Court’s
decisional process by allowing the Court to explore with counsel the
implications of Appellants’ request for a dramatic change in the law.
Furthermore, oral argument will provide Appellees’ counsel invaluable
experience, having become licensed in November 2016.
REPLY TO ISSUES PRESENTED AND CROSS-POINTS
Appellees disagree with Appellants’ statement of the issues
presented and therefore provide the following. Tex. R. App. P.
38.2(a)(1)(B). Additionally, Appellees bring cross-points pursuant to Tex.
R. App. P. 38.2(b)(1).
Issue 1: Did Appellants waive error as to the propriety of the trial
court’s decision to grant Appellees’ motion for judgment
2
notwithstanding the verdict by failing to produce an adequate
appellate record for this Court’s consideration?
Issue 2: Does the record demonstrate that Appellants breached the
parties’ contract by failing to comply with the termination provision
when Appellants refused to refund Appellees’ $42,500 deposit, less
the charges Sportscapers incurred prior to Appellees’ lawful
exercise of their right to terminate the contract?
Issues 3: Do Appellants ask this Court to disregard the well-
established standard of review of a trial court’s entry of a judgment
notwithstanding the verdict and ignore that an appellate court may
affirm the judgment even if the trial court’s rationale for granting
the motion is erroneous when the trial court’s decision can be
supported on another basis presented to the trial court?
Issue 4: Even if the trial court’s final judgment recites an incorrect
legal standard, is the purported error rendered harmless when the
motion and judgment are considered in full?
Issue 5 [Cross-Point]: Does the record—including Appellants’
own admissions that Appellees are entitled to a refund of at least
$27,000—conclusively establish that Appellants breached the
contract by refusing to refund the undisputed portion of Appellees’
deposit, such that the jury’s finding that Sportscapers did not
breach the contract is unsupported by any evidence and against the
overwhelming preponderance of the evidence?
Issue 6 [Cross-Point]: Should the jury’s verdict be set aside
because of improper argument of Appellants’ counsel?
STATEMENT OF FACTS
Appellees object to Appellants’ Statement of the Facts because it
contains multiple misrepresentations, is incomplete, and is not supported
by references to the appellate record with respect to the facts most
3
relevant to this appeal. Tex. R. App. P. 38.1(g), 38.2(a)(1)(B). Appellants’
Brief also fails to mention the gamesmanship and improper jury
argument by their trial counsel, which ultimately resulted in a jury
verdict supported by absolutely no evidence.
I. Appellees sign a contract containing a no-cause termination
provision, under which Appellants agreed to construct a
tennis court on Appellees’ property to their specifications
and in a good and workmanlike manner for $85,000, with
half the balance due up front.
On August 1, 2015, Appellees and Appellants entered into a
“Construction Contract” that called for Appellants to build “in a neat,
first class, good and workmanlike manner, and in strict compliance with
the Contract Documents” a tennis court on Appellees’ property. CR 16; 3
Supp. RR 5 (Pls. Ex. 1). All the negotiations with Appellees were
conducted by and through Roderick Thompson, the owner and operator
of Sportscapers Construction, Inc. CR 8; see also Appendix A (certified
records from the Texas Secretary of State reflecting that Thompson is the
owner and registered agent of Sportscapers Construction, Inc.).
The parties agreed that Appellees would pay $85,000 for the
installation of the tennis court, to be paid as follows: $42,500 before work
began, $34,000 upon completion of the concrete pour, and $8,500 within
4
five days of substantial completion of the project. CR 16; 3 Supp. RR 5
(Pls. Ex. 1). Further, the parties agreed that all components and
materials would remain Appellants’ property until final payment was
made. CR 9, 3 Supp. RR 6 (Pls. Ex. 1). The parties also agreed that
Appellants would “reasonably clean up the work site and access area”
upon completion of the work at Appellees’ property. CR 17; 3 Supp. RR 7
(Pls. Ex. 1). And most importantly, the parties’ contract included the
following termination provisions:
21. Termination by Sportscapers. Sportscapers has the
right to terminate this Agreement at any time and to be paid
the reasonable value of Work thus far performed.
22. Termination by Owner. In the event the Owner
terminates the Agreement, the Owner shall be legally
responsible to pay Sportscapers for the charges up to and
including the date of such termination, regardless of
whether the Owner has received an Invoice for such Charges
prior to such termination. 1
CR 18 (emphasis added); 3 Supp. RR 8 (Pls. Ex. 1). The contract does not
define the term “charges.” However, the potential ambiguity is
immaterial to this appeal because Appellants claim only $15,474 in
“charges,” and Appellees do not challenge this amount on appeal.
1 The contract also provided Appellees the right to cancel the contract at any time
within three business days by delivering written notice to Sportscapers. 3 Supp. RR
6 (Pls. Ex. 1).
5
Paragraphs 21 and 22 of the contract are undoubtedly no-cause
termination provisions, also referred to as termination for convenience
clauses. As the Supreme Court of Texas recently explained: a no-cause
termination can be premised on any reason, or no reason at all, and can
be accomplished simply by providing notice and, if applicable, the
contractual “penalty” or liquidated-damages payment. Cmty. Health Sys.
Prof’l Services Corp. v. Hansen, 525 S.W.3d 671, 683 (Tex. 2017). Here,
Appellees could terminate the agreement for any or no reason, but the
“penalty” (or liquidated damages) was that Appellees would have “to pay
Sportscapers for the charges up to and including the date of such
termination.” See, e.g., Gulf Liquids New River Project, LLC v. Gulsby
Eng’g, Inc., 356 S.W.3d 54, 68 (Tex. App.—Houston [1st Dist.] 2011, no
pet.) (analyzing a termination for convenience clause and explaining that
such a clause “limits the contractor’s damages to those specified”).
On August 1, 2015, consistent with their contractual obligations,
each Appellee tendered to Thompson two checks in the amount of $21,250
(totaling $42,500) made out to Sportscapers, which were deposited on
August 3. CR 9.
6
II. After Appellants commence work, Appellees quickly lose
confidence in Appellants’ ability to perform in a good and
workmanlike manner and ask that all work stop while they
get the project back on track. When all the issues appear to
be resolved, Appellants demand that Appellees modify the
agreement by signing waivers of certain contractual terms.
When Appellees refuse, Appellants turn the matter over to
their attorney.
On or about August 10, 2017, Sportscapers’ crews came out to
Appellees’ home to begin the construction. CR 9; 3 Supp. RR 10 (Pls. Ex.
3). At the end of that day, Appellees noted that Sportscapers’ had:
(1) failed to perform site preparation activities that were
standard in the industry, which they had actually discussed
with Thompson and the community developer, despite the fact
that the developer had expressed concerns about local soil
conditions in a preliminary meeting in July 2015;
(2) failed to identify utilities, and had actually severed a Comcast
cable line in the preliminary phases of the project;
(3) positioned the layout of the tennis court incorrectly and not in
accordance with the parties’ agreement;
(4) failed to secure homeowners’ association approval for the
construction of the tennis court;
(5) damaged Appellees’ driveway on the first day of construction;
and
(6) failed to maintain a clean and safe worksite.
CR 9–10; 3 Supp. RR 11, 13–17 (Pls. Exs. 5–8). In light of these
deficiencies, Appellants quickly lost confidence in Sportscapers’ ability to
7
properly construct the tennis court on their property and ordered that
construction stop immediately. CR 10; 3 Supp. RR 15–17 (Pls. Ex. 8).
Over the course of the next three weeks, activities that undoubtedly
should have been undertaken prior to the commencement of construction
proceeded in what is best described as a haphazard manner. For example,
the day after construction was stopped, Appellees asked Thompson to
provide copies of his plans and specifications so that they could present
those plans to the homeowners’ association for approval. CR 10; 3 Supp.
RR 17 (Pls. Ex. 8). Only then did Appellees learn that Sportscapers and
Thompson had not prepared any plans before beginning the work. CR 10;
3 Supp. RR 16 (Pls. Ex. 8) (August 11 e-mail from Thompson admitting
“In terms of a set of plans, I will have to get some plans created for what
we are doing on your property. Will have plans drafted by a draftsman.
Should take about 4 days to complete.”). When Thomson subsequently
prepared plans for the site, his plans contained multiple inaccuracies and
inadequacies and had to be amended. CR 10; 3 Supp. RR 27, 35, 46 (Pls.
Ex. 9); see also 3 Supp. RR 106 (Pls. Ex. 10).
Thereafter, when it appeared that fair and somewhat-accurate
plans had finally been achieved, Sportscapers and Thompson sent
8
Appellees a binder full of new and never-before-discussed demands for
waiver of many necessary preparatory activities. CR 10–11; 3 Supp. RR
104–05 (Pls. Ex. 10). Appellees refused to modify the agreement by
signing the waivers, and Thompson turned the entire matter over to his
lawyer. CR 11; 3 Supp. RR 100 (Pls. Ex. 10).
III. Appellees request a refund of their deposit after
terminating the contract, and Appellants and their attorney
go silent, forcing Appellees to file suit.
Beginning September 4, 2015, Appellees made numerous attempts
to obtain the refund of all or part of their $42,500 deposit—representing
50% of the entire contract amount. CR 11; 3 Supp. RR 100–101 (Pls. Ex.
10). The only response they received from Thompson was a copy of an e-
mail to his attorney, in which Thompson acknowledged that “under our
agreement, you do have a termination option” and indicated that his
attorney would explain “the direct expenses associated with the work”
completed to date and “close out this matter.” 3 Supp. RR 100 (Pls. Ex.
10); CR 11. In a subsequent e-mail, Thompson stated that he was
“[g]ladly willing to refund the monies” due to Appellees, “minus [his]
expenses.” 3 Supp. RR 98 (Pls. Ex. 10).
9
Appellees received a single refund offer from Appellants’ counsel.
CR 11. In the refund offer, Appellants’ counsel indicated that
Sportscapers was entitled to keep $15,474 for the following services the
company had rendered prior to Appellees’ termination of the contract:
TABLE 1: ITEMIZATION OF SPORTSCAPERS’ CHARGES
Amount “Charge”
$2,738 “supplies purchased for mobilization”
“supplies purchased for tennis court
$2,576
needed before concrete pour”
“placement of loads of fill dirt including
$3,560
all labor, equipment, and fuel”
“rendering requested by client and
$2,100
submittals for HOA”
$4,500 “Admin., supervision, and general costs”
$15,474
CR 91–92. In response, Appellees hired counsel to prepare a counteroffer.
Until Appellees finally filed suit in November 2017, there were:
(1) no calls or return calls from Thompson;
(2) no calls or return calls from Appellants’ counsel;
(3) no responses to e-mails sent to Thompson;
(4) no responses to e-mails sent to Appellants’ counsel; and
(5) no responses to mail sent to Appellants’ counsel.
CR 11; see also 3 Supp. RR 97–100 (Pls. Ex. 10). Appellees alleged that
Sportscapers and Thompson breached the contract: (1) by failing to
10
complete their tennis court in a good and workmanlike manner,
according to the contract specifications; (2) by failing and refusing to
reclaim construction materials left at the site, despite Appellees’ pleas to
do so; (3) by failing and refusing to “reasonably clean up the work site
and access area” upon termination of their work; and (4) by failing and
refusing to refund sums due to Appellees after Sportscapers’
services had been terminated. CR 12. Appellees also brought a
conversion claim, which was dismissed when the trial court granted a
directed verdict for Appellants during trial. CR 12. Appellees requested
a “[r]efund of their intial $42,500 deposit, less reasonable, necessary, and
customary charges for services rendered” prior to and including the date
they terminated the contract. CR 13.
IV. The lawsuit proceeds to a four-day jury trial, in which
Appellants’ counsel engages in a remarkable display of
gamesmanship, deceit, and improper jury argument, and
the jury finds that neither party breached the contract
without reaching the damages questions that had been
conditioned on a finding of breach.
The lawsuit was tried before a jury from Tuesday, January 17,
2017, to Friday, January 20, 2017—a long trial for a simple breach of
contract dispute. CR 53, 77, 81. During trial, Appellants’ attorney
engaged in a spectacular display of gamesmanship. Presumably to
11
exhaust the jury with a four-day trial, Appellants’ counsel requested last-
minute, partial-day continuances so that he could, for example, challenge
a speeding ticket he had received in League City, Texas.
During trial, Appellants presented documentary evidence of only
one “charge” incurred by Sportscapers in furtherance of Appellees’ tennis
court: $225. CR 94; see also 2 Supp. RR 7:16–8:25. However, Thompson
was also allowed to testify that Sportscapers incurred the charges
identified in Table 1, supra, totaling $15,474.2 CR 91–92.
But even if Sportscapers were entitled to keep $15,474, the question
remains: How could Sportscapers keep Appellees’ $42,500 deposit
if its contention was that it was only entitled to $15,474? Under
the contract’s unambiguous terms, Appellees have always been
entitled to the uncontested balance: $27,026.
2 Sportscapers also presented Roderick’s testimony that it was entitled to $21,250
as “lost profits,” despite the fact that the contract’s termination provision does not
provide that Sportscapers was entitled to its claimed 25% of the contract price as “lost
profits” upon Appellees’ termination. CR 93–95. Rather, the contract unambiguously
allowed Sportscapers to recover nothing more than “the charges” accrued up to the
date of termination. Indeed, the contract does not mention “lost profits” whatsoever.
CR 16–19. Regardless, Appellants failed to prove Sportscapers’ “lost profits” with
reasonably certainty, and Appellants do not request them on appeal. See Tex.
Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.3d 276, 279 (Tex. 1994)
(holding that lost profits must be established with reasonable certainty).
12
On the last day of trial—and just before closing arguments—
Sportscapers strategically deposited $25,000 into the court registry. CR
80. Indeed, if there was any valid reason for the Sportscapers’ last-second
deposit of funds into the registry, it must surely have been because
Appellants knew that Appellees were entitled to a refund of the
undisputed portion of the $42,500 they paid Sportscapers at the
commencement of the parties’ relationship.
Appellants, however, had another plan: to improperly inform
the jury of the $25,000 deposit and convince the jury that the
funds would be paid to Appellees regardless of the outcome of the
case. Appellants’ counsel stated during closing argument:
MR. TINDAL: And you’ve heard testimony earlier where Mr.
-- Mr. Thompson, through Sportscapers, had offered the
plaintiffs a refund by this itemization when they terminated
him.
Now, keep in mind this adds up to effectively $15,000 or
so that he’s saying that Sportscapers has earned. By this
measure of damages, Question 6, and the same as the time
here, too; but the -- the alternate measure of damages places
it at about $25,000. Now, rather than the 25, he was ready to
go to 15- and say: Let’s be done with it….
I don’t, by any means, mean to concede that I view this case
as a win for the plaintiffs. Quite the opposite, and I’ll – I’ll tell
you also that I objected; and then, since he opened the door,
I’ll go ahead and -- and complete the sentence here that
13
Mr. Thompson is not, in fact, holding the $42,500. And
the disputed part of that money is in the registry of the
Court, and our --
MR. BROPHY: Objection --
MR. TINDAL: -- Judge --
MR. BROPHY: -- Your Honor.
MR. TINDAL: -- has --
THE COURT: Sustained.
MR. BROPHY: Well, now that it’s out there, can we let them
know that he put it in there at noon today?
THE COURT: Counsel, please approach the bench.
2 Supp. RR 20:2–13, 21:5–22 (emphasis added). 3 Thus, Appellants’ own
counsel conceded that: (1) Appellants presented no evidence of any
charges exceeding $15,474; (2) Sportscapers only claimed $15,474
as “charges” the company had incurred; and (3) $25,000 of the
$42,500 deposit was placed in the court registry for Appellees’
benefit. Id. Under no circumstances were Appellants entitled to keep the
undisputed portion of the deposit. Any jury finding to the contrary was
not supported by the evidence.
3 That Sportscapers had deposited money in the registry of the court was not a
fact presented at trial. 2 Supp. RR 22.
14
Even more, despite this improper jury argument by Appellants’
counsel, Appellants have never—before, during, or after trial:
(1) documented costs exceeding $225 for the work Sportscapers
performed in preparation of the job; or (2) refunded a dime of Appellees’
deposit, even though no set of facts presented at trial would negate
Appellees’ entitlement to a refund of the undisputed portion thereof.
At the conclusion of the trial, the jury, apparently exhausted by the
four-day trial and by the games of Appellants’ counsel, returned a
unanimous verdict that neither Appellees nor Appellants had breached
the contract. CR 72. Because the damages questions were conditioned on
a finding of breach, 4 the jury did not answer any of the damages questions
submitted. CR 70–76. Notably, no questions were submitted regarding
the “charges” Sportscapers had incurred prior to Appellees’ termination
of the contract under the termination provision. CR 70–76.
4 While Appellees’ proposed jury charges did not condition questions regarding the
amounts owed or earned by the parties, Appellants’ proposed charges specifically
conditioned the damages questions on a finding of breach—presumably, so that the
jury would not find that Appellees were entitled to a refund absent a finding that
Sportscapers and Thompson had breached the contract. Compare CR 39–52
(Plaintiffs’ first and amended proposed jury charges), with CR 54–66 (Defendants’
proposed jury charge). Over Appellees’ objection, the trial court submitted pure
breach-of-contract damages questions conditioned on a finding of breach. CR 73.
15
Appellants state, with no support in the record, that after the jury
rendered its verdict, “Plaintiffs made a motion for judgment
notwithstanding the verdict that was denied.” Appellants’ Br. at 8.
Appellants’ counsel made the same misrepresentation in a motion filed
seven days after the jury rendered its verdict. CR 78. This assertion is an
outright lie,5 and it demonstrates the gall with which Appellants’ counsel
will misrepresent facts to obtain a favorable result for his clients.
V. Appellants move for a take-nothing judgment, which the
trial court later denies.
Despite Appellants’ position at trial, on January 27, 2017,
Appellants filed a motion for entry of judgment, asking the Court to enter
a take-nothing judgment and order the release of the $25,000
mysteriously deposited into the court registry back to Sportscapers. CR
77–78. The trial court denied Appellants’ motion. CR 89–90, 120.
Indeed, the trial court’s docket notes state that the court took Appellees’ oral
5
motion for judgment notwithstanding the verdict “under advisement.” CR 120.
16
VI. Appellees file a combined motion for judgment, motion for
judgment notwithstanding the verdict, and motion for new
trial, asking that the court apply the plain language of the
contract and award Appellees their $42,500 deposit, less the
“charges” Sportscapers incurred prior to their termination
of the contract.
On March 3, 2017, Appellees filed their combined Motion for
Judgment, Motion for Judgment Notwithstanding the Jury’s Verdict, and
Motion for New Trial. CR 91–98. In the motion, Appellees first asked that
the trial court enter judgment in their favor “consistent with the law and
the jury’s verdict” and award them $27,026 (representing $42,500 less
the amount of “charges” arguably shown to have been incurred by
Sportscapers), plus pre-judgment interest. CR 92, 95. Alternatively,
Appellees sought a judgment awarding them $42,275 (representing
$42,500 less the $225 documented charge evidenced at trial). CR 95.
Appellees requested that the $25,000 deposited in the court’s registry be
released to them. CR 95.
Appellees also moved in the alternative for a judgment
notwithstanding the jury’s “no breach” verdict. CR 95. Particularly,
Appellees argued that, despite the jury’s findings, the evidence
conclusively established Appellees’ entitlement to a refund of the
undisputed portion of their $42,500 deposit and that Sportscapers had
17
breached the contract by failing to do so. CR 95–96. That is, Appellees
again simply asked that the trial court apply the termination provision
according to its plain terms—awarding Appellees the balance of their
deposit, less the evidence of “charges” Sportscapers even arguably
presented at trial. CR 95–96.
Finally, Appellees moved in the alternative for new trial. CR 96–
97. Appellees argued that a take-nothing judgment based on the jury’s
finding that neither party breached the contract would be manifestly
unjust, since under no circumstance were Appellants entitled to keep the
entire balance of Appellees’ $42,500 deposit. CR 97. Put differently,
Appellees argued that the jury’s refusal to answer the damages questions
was so factually insufficient or so against the great weight and
preponderance of the evidence as to be manifestly unjust. CR 97. As
grounds, Appellees argued:
[I]n addition to the obvious and irreparable problem with a
proposed damage award of “zero,” Plaintiffs MITCHELL and
BROWN would show the Court that counsel for the
Defendants purposefully tainted closing jury argument to
such a degree that a new trial is warranted.
The Court will recall that at lunchtime on the final day of
trial, counsel for the Defendants inexplicably, suddenly, and
unexpectedly deposited $25,000.00 into the Registry of the
Court under the name of Sportscapers Construction, Inc.
18
Then, during closing arguments, counsel for the Defendants
disclosed the deposit of those funds to the jury seated to hear
this case, undoubtedly with the express intent of leading the
jurors to believe that:
1) the Defendants were acting in good faith throughout this
dispute; and/or
2) the Plaintiffs would receive something for their Courtroom
efforts even if the jury found that no one breached the parties’
contract. That bad-faith argument alone “might reasonably
have affected the outcome” of this trial, and constitutes “good
cause” for a new trial devoid of such egregious behavior.
CR 97–98.
VII. The trial court grants Appellees’ motion for judgment
notwithstanding the verdict and, four days later, enters a
final judgment awarding Appellees $25,000, “representing
the sums actually paid to Defendant Sportscapers
Construction, Inc., by the Plaintiffs herein, less the sums
charged by Defendant Sportscapers Construction, Inc. for
the services it rendered prior to the lawful termination of
its services.”
On May 12, 2017, the trial court granted Appellees’ motion for
judgment notwithstanding the verdict. CR 121. On May 16, 2017, the
trial court entered a final judgment 6 awarding Appellees $25,000,
“representing the sums actually paid to Defendant Sportscapers
Construction, Inc., by the Plaintiffs herein, less the sums charged by
6 Appellants’ Brief cites to the wrong judgment. Appellants’ Br. at 6, 8–9, 14.
Specifically, Appellants cite to the proposed judgment they filed with their January
27 motion for judgment, which the trial court later denied. CR 89–90, 120.
19
Defendant Sportscapers Construction, Inc. for the services it rendered
prior to the lawful termination of its services.” CR 112. Although the final
judgment also stated that “the jury’s answers to the Questions were
against the great and overwhelming preponderance of the evidence,” this
legal conclusion is not essential to the trial court’s judgment applying the
termination provision according to its terms. Even more, the final
judgment, signed four days after the trial court granted Appellees’
request for a judgment notwithstanding the verdict, does not mention
Appellees’ Motion for Judgment, Motion for Judgment Notwithstanding
the Jury’s Verdict, and Motion for New Trial. CR 111–12, 121.
Appellants filed a notice of appeal without asking that the trial
court modify or correct its judgment. CR 115.
SUMMARY OF THE ARGUMENT
The parties’ contract provided that Appellees could terminate the
contract for any or no reason at all at any point in time. However, if
Appellees exercised this right, Appellants were entitled to the charges
incurred up to and including the date of such termination. Appellees
terminated the contract after depositing $42,500 (or 50% of the entire
contract price) to Appellants and before Appellants performed any
20
significant work on the project. At trial, Appellants presented
documentary evidence of $225 of “charges” incurred prior to the contract’s
termination and presented testimony that Appellants had incurred
$15,474 in “charges” before Appellees terminated the contract.
Pursuant to the contract’s unambiguous terms, Appellees were
entitled to a refund of their $42,500 deposit, less the charges Appellants
incurred prior to the contract’s termination. Appellants established, at
best, that they incurred $15,474 in charges before Appellees terminated
the contract, meaning that Appellees were entitled to a refund in the
amount of $27,026. There was no contrary evidence presented at trial,
and there is no contrary evidence in the appellate record.
The court’s charge conditioned all damages questions based on a
finding of breach. Because the jury—likely influence by Appellants’
improper closing argument insinuating that Appellees would receive the
$25,000 mysteriously deposited into the registry on the last day of trial—
found that neither party had breached the contract, the jury did not make
any damages findings. In short, Appellants escaped a breach-of-contract
jury verdict by improperly suggesting during closing argument that
21
Sportscapers had deposited the refundable portion of Appellees’ deposit
in the court’s registry.
The evidence at trial and in this appellate record conclusively
establishes that Appellants breached the contract’s termination
provision when they refused to refund Appellees’ deposit, less the charges
incurred prior to the contract’s termination. Under these circumstances,
it was entirely proper for the trial court to disregard the jury’s finding on
the question of Appellants’ failure to comply with the contract. Further,
the evidence conclusively establishes that Appellants’ incurred no more
than $15,474 in charges up to and including the date of the contract’s
termination. The evidence therefore conclusively establishes that
Appellees were entitled to a refund of at least $27,026. The trial court did
not err by granting Appellees’ motion for judgment notwithstanding the
verdict and by entering a judgment awarding Appellees $25,000,
“representing the sums actually paid to Defendant Sportscapers
Construction, Inc., by the Plaintiffs herein, less the sums charged by
Defendant Sportscapers Construction, Inc. for the services it rendered
prior to the lawful termination of its services.”
22
Appellants do not contend that the evidence does not
conclusively establish that Sportscapers breached the contract
by refusing to refund at least $25,000 of Appellees’ deposit. Indeed,
Appellants waived that issue by failing to raise it in their opening brief
and by failing to furnish an adequate record for this Court’s review.
Instead, Appellants point to language in the Court’s final judgment and
hope for a second bite at the apple. But Appellants ignore that that
appellate courts review a trial court’s grant of a judgment
notwithstanding the verdict under a legal-sufficiency standard and will
affirm the trial court’s judgment where the evidence conclusively
establishes the opposite of the jury’s factual finding. In short, this Court
must consider whether the trial court’s decision to disregard jury’s
finding was proper, and the record in this case shows precisely that. Any
defective language in the Court’s judgment is harmless, despite
Appellants’ protestations.
The Court should affirm the trial court’s judgment applying the
plain language of the contract’s termination provision because the
evidence presented at trial and in this appellate record conclusively
establishes that Appellants breached the contract when they refused to
23
refund Appellees’ deposit, less the $15,474 in charges they claim to have
incurred prior to the contract’s termination.
ARGUMENT
I. Appellants waived error as to the propriety of the trial
court’s decision to grant Appellees’ motion for judgment
notwithstanding the verdict by failing to produce an
adequate appellate record for this Court’s consideration.
Appellants waived error as to the propriety of the trial court’s
decision to grant Appellees’ motion for judgment notwithstanding the
verdict (“JNOV”) by failing to furnish a sufficient record to show error
requiring reversal.
A trial court may disregard a jury’s verdict and render a JNOV if
no evidence supports the jury’s findings or if a directed verdict would
have been proper. Tex. R. Civ. P. 301; Tiller v. McLure, 121 S.W.3d 709,
713 (Tex. 2003); B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 15 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied). Courts review a trial court’s
decision to grant a JNOV under a legal-sufficiency standard, upholding
a trial court’s decision when the record discloses: (1) a complete absence
of evidence of a vital fact; (2) the trial court is barred by the rules of law
or evidence from giving weight to the only evidence offered to prove a
vital fact; (3) the evidence offered to prove a vital fact is not more than a
24
scintilla; or (4) the evidence establishes conclusively the opposite of a
vital fact. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 347
(Tex. 2015); City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). “A
JNOV should be granted when the evidence is conclusive and one party
is entitled to recover as a matter of law ....” Beckman, 305 S.W.3d at 15.
A court must consider the evidence in the light most favorable to the
nonmoving party, but if the evidence allows only one inference, the court
may not disregard it. Wilson, 168 S.W.3d at 822.
Error is never presumed on appeal. Enterprise Leasing Co. of
Houston v. Barrios, 156 S.W.3d 547, 549 (Tex. 2004). To the contrary,
appealed judgments and orders are presumed correct, and the
appellant has the burden of overcoming this presumption by
affirmatively showing error on an adequate record. Id. (explaining
that if the pertinent evidence considered by the trial court is not included
in the appellate record, an appellate court must presume that the omitted
evidence supports the trial court’s judgment); see also Rogers v. Rogers,
No. 01‐15‐00224‐CV, 2016 WL 3162299, at *3 (Tex. App.—Houston [1st
Dist.] June 2, 2016, no pet. h.) (mem. op.) (“The requirement of a
reporter’s record applies to issues which require reference to the
25
evidence.”). When the appellant brings forward an incomplete
record, a presumption arises that the missing portion of the
evidence is sufficient to support the trial court’s judgment.
Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990); see also
Englander Co. v. Kennedy, 428 S.W.2d 806, 806–07 (Tex. 1968) (same);
Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583 (Tex. App.—Houston
[1st Dist.] 2007, no pet.) (same). Furthermore, when an appellant fails
to bring forward a complete record, the appellate court will
conclude that the appellant has waived the points of error
dependent on the state of the evidence. Donahoe v. Jones, No. 01-15-
00191-CV, 2016 WL 796892, at *3 (Tex. App.—Houston [1st Dist.] Mar.
1, 2015, no pet.); Curry v. Texas Dep’t of Pub. Safety, 472 S.W.3d 346, 350
(Tex. App.—Houston [1st Dist.] 2015, no pet.).
Texas courts hold that an appellant cannot rely on an incomplete
record to attack a JNOV where a directed verdict would have been
proper. See, e.g., Kwik Wash Laundries, Inc. v. McIntyre, 840 S.W.2d 739,
743 (Tex. App.—Austin 1992, no writ) (surveying cases and concluding
that an appellate court cannot properly apply the standard for reviewing
a JNOV without reviewing the entire record); see also Fisher v. Evans,
26
853 S.W.2d 839 (Tex. App.—Waco 1993, writ denied) (same). In fact, the
Kwik Wash Court recognized that if an appellant were allowed to pick
and choose the portions of the record it deemed relevant, then the
appellant could intentionally omit portions of the record in which the
appellant admitted the opponent’s case. Id. This is precisely the type
of gamesmanship that Thompson and Sportscapers are trying to
pull in this appeal.
In short, the evidence presented to the jury is key to Appellants’
challenge to the trial court’s order granting Appellees’ motion for JNOV,
but the reporter’s record Appellants filed with the Court is a mere eight
pages—the jury’s verdict—and contains no information as to the
testimony and evidence the jury observed at trial. Appellants did not file
a request for a partial reporter’s record or otherwise file a statement of
the points or issues to be presented on appeal with the trial court. CR
115; see also Tex. R. App. P. 34.6(c); Guerra v. Flores, No. 13-15-00533-
CV, 2017 WL 4837849, at *2 (Tex. App.—Corpus Christi–Edinburg Oct.
26, 2017, no pet.) (mem. op.) (holding that the court “must presume that
the missing portion of the reporter’s record supports the trial court’s
decision” where “appellant neither filed and served a request for a partial
27
reporter’s record on appellee nor stated the points of error he would be
relying upon”). The appellate record is undoubtedly insufficient. As a
result, the Court must presume that the evidence supports the trial
court’s judgment and hold that Appellants waived error.
II. In any event, the record conclusively establishes that
Appellants breached the contract by failing to comply with
the termination provision when Appellants refused to
refund Appellees’ $42,500 deposit, less the “charges”
Sportscapers incurred prior to Appellees’ lawful exercise of
their right to terminate the contract.
The evidence in this record and presented to the jury at trial
conclusively establishes that:
(1) Appellees deposited $42,500 (50% of the contract price) before
Appellants commenced work under the contract, see
Appellants’ Br. at 7–8 (Appellants’ Statement of the Facts);
(2) Appellees lawfully terminated the contract under the
termination provision, CR 72 (jury’s find that Appellees did
not fail to comply with the agreement); CR 112 (final
judgment);
(3) Appellees were contractually entitled, according to the
contract’s unambiguous terms, to a refund of their deposit,
less the charges Appellants had incurred up to and including
the date Appellees terminated the contract, CR 18 (contract);
(4) Appellants had incurred, at most, $15,474 in charges up to
and including the date Appellees terminated the contract,
2 Supp. RR 20:2–13, 21:8–12; 3 Supp. RR 97–100; and
28
(5) Appellants refused to refund Appellees’ deposit, less the
charges incurred up to and including the date Appellees
terminated the contract, 3 Supp. RR 97–100.
Accordingly, the record and all the evidence at trial conclusively
establishes that Appellants breached the contract by failing to comply
with the contract’s termination provision when they refused to refund
Appellees’ $42,500 deposit, less the $15,474 in charges that Sportscapers
incurred prior to and including the date of Appellees’ lawful exercise of
their right to terminate the contract. No contrary evidence exists, and the
trial court correctly granted Appellees’ motion for JNOV. The trial court
also correctly entered judgment in Appellees’ favor for $25,000,
“representing the sums actually paid to Defendant Sportscapers
Construction, Inc., by the Plaintiffs herein, less the sums charged by
Defendant Sportscapers Construction, Inc. for the services it rendered
prior to the lawful termination of its services.” CR 112.
III. Appellants ask this Court to disregard the well-established
standard for reviewing a trial court’s entry of a judgment
notwithstanding the verdict and ignore that an appellate
court must affirm the judgment even if the trial court’s
rationale is erroneous when the judgment can be supported
on a basis presented in the motion.
Appellants ask this Court to ignore the evidence presented at trial
and to not determine whether the evidence conclusively establishes that
29
Appellants breached the contract’s termination provision and that
Appellants incurred no more than $15,474 in charges prior to the
contract’s termination. Instead, Appellants ask that the Court focus
solely on one clause in the trial court’s final judgment awarding Appellees
$25,000, “representing the sums actually paid to [Sportscapers], less the
sums charged by Defendant Sportscapers Construction, Inc. for the
services it rendered prior to the lawful termination of its services.” CR
121. Even more, Appellants focus on the language in the trial court’s final
judgment but fail to mention that the trial court had granted Appellees’
motion for JNOV four days earlier. CR 121. Appellants also fail to
mention that their counsel’s improper jury argument created this
problem to begin with. 2 Supp. RR 21:8–12. However, the fact that a court
gives an incorrect legal reason for its otherwise correct judgment is not
dispositive, as an appellate court must review the JNOV by reviewing the
arguments presented in the motion and a complete appellate record.
Texas law is well-settled that an appellate court “must uphold a
correct lower court judgment on any legal theory before it, even if the
court gives an incorrect reason for its judgment.” Guar. Cty. Mut.
Ins. Co. v. Reyna, 709 S.W.2d 647, 648 (Tex. 1986) (per curiam) (emphasis
30
added) (citing Gulf Land Co. v. Atl. Refining Co., 131 S.W.2d 73, 77 (Tex.
1939)). This principle applies to a trial court’s order granting a motion for
JNOV. Speck v. Dry Bones Coffee House, No. 01-09-00605-CV, 2009 WL
4358039, at *2 (Tex. App.—Houston [1st Dist.] Dec. 3, 2009, no pet.)
(mem. op.). Indeed, “[a]ffirmance of the trial court’s judgment is
proper if it is supported by any ground asserted in the motion for
judgment notwithstanding the verdict, even if the trial court’s
assigned rationale for granting the motion is erroneous.” Id.
(emphasis added) (quoting Wallis v. United Servs. Auto. Ass’n, 2 S.W.3d
300, 302 (Tex. App.—San Antonio 1999, pet. denied). In short, courts “will
not reverse a correct decision, even if the trial court gave an incorrect
reason for the decision.” Bekins Moving & Storage Co. v. Williams, 947
S.W.2d 568, 585 (Tex. App.—Texarkana 1997, no writ). Put differently,
“[i]f the trial court renders an otherwise correct judgment, it will not be
set aside because it made one or more incorrect conclusions of law…. The
appellate court will simply correct the incorrect conclusion of law, and if
the judgment is found to be correct it will be upheld, although based upon
an incorrect conclusion of law.” Mercedes Dusting Serv., Inc. v. Evans,
353 S.W.2d 894, 896 (Tex. Civ. App.—San Antonio 1962, no writ); see also
31
Tex. R. App. P. 44.1(a) (“No judgment may be reversed on appeal on the
ground that the trial court made an error of law unless the court of
appeals concludes that the error complained of: (1) probably caused the
rendition of an improper judgment; or (2) probably prevented the
appellant from properly presenting the case to the court of appeals.”).
A corollary to this principle is that “[t]o win an appeal from a
judgment notwithstanding a jury’s verdict, an appellant must
successfully challenge all independent grounds that the appellee sought
judgment on and that may have supported the judgment.” Lesher v.
Doescher, No. 02-12-00360-CV, 2013 WL 5593608, at *2 (Tex. App.—Fort
Worth Oct. 10, 2013, pet. denied) (mem. op.). This is true even if the trial
court’s order includes language describing the wrong legal standard. See,
e.g., Cavazos v. Cintron, No. 13-04-00529-CV, 2006 WL 1766189, at *2
n.2 (Tex. App.—Corpus Christi–Edinburg June 29, 2006, no pet.) (mem.
op.); see also Taco Cabana, Inc. v. Exxon Corp., 5 S.W.3d 773, 777 (Tex.
App.—Houston [14th Dist.] 1999, pet. denied) (“Affirmance of the trial
court’s judgment is proper if it is supported by any ground asserted in the
motion … even if the trial court’s assigned rationale for granting the
motion is erroneous.”); Vandever v. Goettee, 678 S.W.2d 630, 635 (Tex.
32
App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.) (“If the judgment is
otherwise correct upon the merits, it is not to be reversed because the
trial judge grounded it upon incorrect legal reasons.”).
This Court’s decision in Smitherman v Commission for Lawyer
Discipline is instructive. There, the Commission for Lawyer Discipline
sued an attorney, alleging that he committed certain violations of the
Texas Disciplinary Rules of Professional Conduct. Smitherman v.
Comm’n for Lawyer Discipline, 463 S.W.3d 97, 98 (Tex. App.—Houston
[1st Dist.] 2015, pet denied). After a jury found in the attorney’s favor,
the trial court granted the Commission’s motion for JNOV and entered a
judgment for the Commission. Id.
The attorney appealed the trial court’s decision to grant the motion
for JNOV arguing, among other things, that the trial court applied the
wrong legal standard in granting the motion JNOV based on statements
the trial court allegedly recited when considering the motion. Id. at 106.
Despite the attorney’s challenge to the legal standard used by the
trial court, this Court proceeded in a traditional legal-sufficiency
review, considering whether a JNOV was proper based on the
record and the grounds raised in the Commission’s motion. Id. at
33
103–04. This Court explained that it reviews “trial court’s application of
the law to the facts de novo,” and concluded that the JNOV was proper
based on the correct legal standard. Id. at 107. Even if the attorney had
shown that the trial court applied the incorrect legal standard, this Court
would affirm the trial court’s judgment if the JNOV was supported by
any ground asserted in the motion.
Here, Appellees argued in their motion for JNOV that, despite the
jury’s no-breach finding, the evidence conclusively established that
Appellees were entitled to a refund of the undisputed portion of their
deposit, meaning that Sportscapers necessarily breached the contract by
failing to do so. CR 95–96; 2 Supp. RR 20:2–13, 21:8–12. Appellees asked
the trial court to disregard the jury’s finding that Appellants had not
breached the contract and award them $42,275 or $27,026 in breach-of-
contract damages. CR 95–96. The evidence conclusively established that
Appellants refused to provide a refund under the termination provision,
even after acknowledging a refund was due, and that Appellees were
entitled to an award of at least $27,026. 2 Supp. RR 20:2–13, 21:8–12; 3
Supp. RR 97–100. The trial court’s decision to grant Appellees’ motion for
JNOV was proper on the record before this Court and on the record before
34
the trial court. Even if the trial court had applied the incorrect legal
standard—a point which Appellees do not concede, Appellants have done
nothing to demonstrate that a judgment notwithstanding the verdict was
improper under the correct standard. See Reyna, 709 S.W.2d at 648;
Smitherman, 463 S.W.3d at 98; Lesher, 2013 WL 5593608, at *2; Speck,
2009 WL 4358039, at *2; Cavazos, 2006 WL 1766189, at *2 n.2; Taco
Cabana, 5 S.W.3d at 777; Williams, 947 S.W.2d at 585; Vandever, 678
S.W.2d at 635; see also Wilson v. State, No. 09-07-00589-CR, 2008 WL
5501146, at *11 (Tex. App.—Beaumont Jan. 14, 2009, no pet.) (mem. op.)
(not designated for publication) (holding that trial court did not err in
denying motion for new trial even though the court’s order stated the
wrong legal standard because “[a]pplying the correct legal standards …
the trial court did not err ….”).
The Supreme Court of Texas has already considered and rejected
the argument Appellants make on appeal. In Ulico Cas. Co. v. Allied
Pilots Association, a case regarding an alleged breach of an insurance
contract, the jury found against Ulico in four liability questions, but the
trial court granted Ulico’s motion for JNOV and set aside two of the jury
findings. Ulico Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773, 776 (Tex.
35
2008). Before the Texas Supreme Court, Allied Pilots Association (“APA”)
claimed that the trial court applied the wrong standard of review in
disregarding one of the jury’s answers based on the trial court’s
conclusion of law that “the evidence does not support” APA’s claim that
an extended reporting period was granted. Id. at 789. Put differently,
APA claimed that the trial court based its decision on insufficient rather
than no evidence. Id. The Court, however, found that the trial court’s
conclusions of law were not dispositive:
But even if the trial court applied the wrong standard in
reaching its decision to disregard the jury’s answer, Ulico is
entitled to a no-evidence review because it asserted in
its Motion for Judgment Notwithstanding the Verdict
and its cross-issues that no evidence supported the
jury finding. The trial court properly granted judgment
notwithstanding the verdict on that ground.
Id. (emphasis added). Just as in this case, language in the trial court’s
judgment is not determinative, as an appellate court must affirm a trial
court’s judgment “if it is supported by any ground asserted in the motion
for judgment notwithstanding the verdict, even if the trial court’s
assigned rationale for granting the motion is erroneous.” Speck, 2009 WL
4358039, at *2; see also Shell Oil Products Co. v. Main St. Ventures,
L.L.C., 90 S.W.3d 375, 387 (Tex. App.—Dallas 2002, pet. dism’d by agr.)
36
(“We may uphold a JNOV only if no evidence supports the jury finding.
Consequently, the standard of review used by the trial court is irrelevant
to our inquiry.” (citation omitted)).
Appellants cite no authority supporting their request that the Court
depart from the well-settled standard of review of a trial court’s decision
to grant a motion for JNOV. In fact, Appellants recognize that this Court
must consider the propriety of the trial court’s decision by “review[ing]
the evidence” to determine whether no evidence supported the jury’s
finding. Appellants’ Br. at 11. The Court should reject Appellants’
invitation to depart from established standards of appellate review and
affirm the trial court’s judgment because a judgment notwithstanding
the verdict was proper based on the grounds asserted in Appellees’
motion and because Appellants have failed to overcome the presumption
that the trial court’s judgment is correct by affirmatively showing error
on an adequate record. Instead, the appellate record—and Appellants’
own statements—conclusively establish that Appellees were entitled to a
refund of the undisputed portion of their deposit—$25,000 (or $27,026).
37
IV. Appellants are simply postponing the inevitable to further
delay Appellees’ recovery and force Appellees to incur
additional attorneys’ fees recovering funds that
unquestionably belong to them.
This appeal is no more than another example of Appellants’
gamesmanship and attempt to delay the inevitable. Indeed, there is no
doubt that if this Court were to remand to the trial court so that it may
reconsider Appellees’ motion for JNOV, the trial court would simply enter
the same final judgment using tighter language.7 Thereafter, Appellants
would predictably bring another frivolous appeal. In fact, not only are
Appellants’ games predictable; Appellants admit their true intent.
Specifically, Appellants have already told this Court:
Should the trial court enter a modified judgment curing the
error briefed by Appellants, afterward Appellants will
demonstrate the substantive error in the judgment by parsing
through the entire record and all trial exhibits to demonstrate
that the jury’s finding that Sportscapers Construction did not
breach the parties’ contract should not be disturbed on the
basis of the presentation of evidence at trial did not establish
a breach of contract on Sportscapers’ part so conclusively that
reasonable minds could not differ as to the truth of the
controlling facts.
7Of course, if this Court does remand to the trial court, Appellees will request an
award for attorneys’ fees and costs, which should have been included in the trial
court’s final judgment, and ask that the trial court increase their breach-of-contract
damages to at least $27,026.
38
Appellants’ Resp. to Appellees’ Mot. to Dismiss and Motion to Extend the
Time to File the Br. at 1. Appellants are misleading this Court, just as
they misled the jury during closing argument. Respectfully, this Court
should refuse to entertain Appellants’ nonsense.
PRAYER
For these reasons, Appellees Evelyn M. Mitchell and Douglas
Brown ask that the Court affirm the trial court’s final judgment awarding
“the sums actually paid to Defendant Sportscapers Construction, Inc., …
less the sums charged by Defendant Sportscapers Construction, Inc. for
the services it rendered prior to the lawful termination of its services,”
and award them the attorneys’ fees and costs incurred on appeal.
Respectfully submitted,
BURFORD PERRY, LLP
/s/ Shawn A. Johnson
____________________________
Shawn A. Johnson
State Bar No. 24097056
Robert R. Burford
State Bar No. 03371700
909 Fannin St., Suite 2630
Houston, Texas 77010
Telephone: (713) 401-9790
Facsimile: (713) 993-7739
sjohnson@burfordperry.com
rburford@burfordperry.com
39
CERTIFICATE OF COMPLIANCE
As required by Tex. R. App. P. 9.4(i)(2)(B) and (3), I certify that the
number of words in Appellee’ Response Brief is 7,618. I relied on the
computer program used to prepare the document for the word count.
/s/ Shawn A. Johnson
____________________________
Shawn A. Johnson
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
Appellees’ Response Brief has been served on the following counsel of
record by the manner indicated in accordance with Tex. R. App. P. 9.5(e),
on March 20, 2018.
BY ELECTRONIC SERVICE
Troy Tindal
17225 El Camino Real, Suite 190
Houston, Texas 77058
troy@tindallawfirm.com
Attorney for Appellants Sportscapers
Construction, Inc. and Roderick Thompson
/s/ Shawn A. Johnson
____________________________
Shawn A. Johnson
40
RULE 38 APPENDIX
41
Appendix A
Certified Records from the Texas Secretary of State