Momax, LLC v. Rockland Corp.

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 16, 2007

_______________________ Charles R. Fulbruge III
Clerk
No. 05-11364
_______________________

MOMAX, LLC,

Plaintiff-Counter Defendant-Appellee,

versus

ROCKLAND CORP.,

Defendant-Counter Claimant-
Third Party Plaintiff-Appellant,

versus

MAX R. GREER; CHARLES R. MOFFETT,

Third Party Defendants-Appellees.

********************************************************
Consolidated with
_______________________

No. 06-10583
_______________________

MOMAX, LLC,

Plaintiff-Appellant,

versus

THE ROCKLAND CORPORATION,

Defendant-Appellee.
 Appeals from the United States District Court
for the Northern District of Texas, Dallas Division
Docket No. 3:02-CV-2613

Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

The court, having heard oral argument and having reviewed

the briefs and pertinent portion of the record, finds no reversible

error of law or fact.

Rockland challenges the sufficiency of Momax’s evidence

as to lost profits. However, at trial, Rockland failed to renew

its motion for judgment as a matter of law and thus did not comply

with Federal Rule of Civil Procedure 50(b). See McCann v. Tex.

City Refining, Inc., 984 F.2d 667, 671 (5th Cir. 1993). Therefore,

we review for plain error and determine “only whether the plaintiff

has presented any evidence in support of his claim.” Polanco v.

City of Austin, Tex., 78 F.3d 968, 974 (5th Cir. 1996). Under this

standard of review, the evidence was plainly sufficient to sustain

the jury’s award of lost profits.

As to the testimony of Dick Abram, Rockland withdrew its

objection at trial, and Abram therefore testified without

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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objection. Regardless, there was no abuse of discretion in

admitting his testimony. See DIJO, Inc. v. Hilton Hotels Corp.,

351 F.3d 679, 685-87 (5th Cir. 2003).

Rockland argues that Momax negated its breach of implied

warranty claims because the product was safe to consume. Momax’s

customers, however, were the stores that would carry the product,

not the ultimate consumers. Rockland stipulated to the

unsuitability of swollen bottles for sale to Momax’s grocery store

customers. It is therefore irrelevant whether the product would

have caused harm to human beings upon consumption. Momax did not

negate its implied warranty claims.

Finally, Momax has moved for recovery of attorneys’ fees

under Texas Civil Practice and Remedies Code § 38.001. Bound as we

are by Texas law, and unpersuaded that a substantial body of Texas

caselaw is incorrect, we may not award attorneys’ fees in a breach

of warranty case such as this one. See JCW Elecs., Inc. v. Garza,

176 S.W.3d 618, 633-34 (Tex. App. 2005); JHC Ventures, L.P. v. Fast

Trucking, Inc., 94 S.W.3d 762, 769 (Tex. App. 2002); Ellis v.

Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 896-97 (Tex. App.

2002); Harris Packaging Corp. v. Baker Concrete Constr. Co.,

982 S.W.2d 62, 69 (Tex. App. 1998); see also Southwestern Bell Tel.

Co. v. FDP Corp., 811 S.W.2d 572 (Tex. 1991)(distinguishing between

breach of contract and breach of warranty actions).

AFFIRMED.

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