Momax, LLC v. Rockland Corp. , 223 F. App'x 334 ( 2007 )

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.
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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opinion should not be published and is not precedent except under the limited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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