Alzo Preyear, Sr. v. Advanced Platinum Solutions, Inc. ( 2016 )

Opinion issued June 30, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00252-CV
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ALZO PREYEAR, SR., Appellant
V.
ADVANCED PLATINUM SOLUTIONS, INC., Appellee
On Appeal from the 281st District Court
Harris County, Texas
Trial Court Case No. 2008-48663
MEMORANDUM OPINION
Appellant, Alzo Preyear, Sr., appeals from the trial court’s judgment rendered
on the jury verdict in favor of appellee, Advanced Platinum Solutions, Inc. (“APS”),
on Preyear’s quantum meruit claim. In two issues, Preyear contends that the trial
court erred because (1) the jury’s verdict is against the great weight and
preponderance of the evidence, and (2) it improperly excluded Plaintiff’s Exhibit
No. 31. We affirm.
Background1
On August 15, 2008, Preyear filed suit against Kandasamy and APS, alleging
claims for breach of contract and violations of the Texas Business Corporation Act.2
Preyear later amended his petition to add claims for breach of fiduciary duty and the
duty to disclose, self-dealing, conspiracy, unjust enrichment, quantum meruit, theft,
and conversion.
On May 27, 2010, APS moved for summary judgment on Preyear’s claims.
On July 9, 2010, the trial court granted summary judgment in favor of APS on all of
Preyear’s claims except his quantum meruit claim. Following a rehearing, the trial
1
Citing to Texas Rule of Appellate Procedure 38.1(g), Preyear argues in his reply
brief that we should accept the factual assertions in his brief as true because
Kandasamy did not file a brief in this case. His argument is without merit. First,
Preyear’s notice of appeal states that he is appealing the trial court’s January 2, 2015
final judgment granting APS’s motion for entry of judgment. Kandasamy is
therefore not a party to this appeal. Second, Rule 38.1(g) states that “the court will
accept as true the facts stated [in appellant’s brief] unless another party contradicts
them.” TEX. R. APP. P. 38.1(g). Here, APS filed a brief which included a statement
of facts contradicting Preyear’s statement of facts.
2
The factual background of this case is detailed in our prior opinion. See Preyear v.
Kandasamy, No. 01-11-01093-CV, 2013 WL 4508001 (Tex. App.—Houston [1st
Dist.] Aug. 22, 2013, no pet.) (mem. op.).
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court granted summary judgment on all of Preyear’s claims. Preyear subsequently
appealed the granting of summary judgment on his quantum meruit claim.
In a memorandum opinion, this Court reversed the trial court’s order granting
summary judgment in favor of APS on Preyear’s quantum meruit claim and
remanded the case to the trial court. See Preyear v. Kandasamy, No. 01-11-01093-
CV, 2013 WL 4508001, at *6 (Tex. App.—Houston [1st Dist.] Aug. 22, 2013, no
pet.) (mem. op.). The case proceeded to trial on December 2, 2014. In response to
Question Number 1 in the jury charge asking whether Preyear performed
compensable work for APS, the jury responded “no.” On January 2, 2015, the trial
court granted APS’s motion for entry of judgment. Preyear filed a motion for new
trial which was later overruled by operation of law. This appeal followed.
Jury Finding
In his first issue, Preyear contends that the trial court erred in rendering
judgment against him because the jury’s finding that Preyear did not perform any
compensable work for APS is against the great weight and preponderance of the
evidence.
To preserve a factual sufficiency challenge to a jury finding or a complaint
that a jury finding is against the great weight and preponderance of the evidence, a
party must raise the point in a motion for new trial. TEX. R. CIV. PROC. 324(b)(2),
(3); Cecil v. Smith, 804 S.W.2d 509, 510 (Tex. 1991). Although Preyear filed a
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motion for new trial, he did not argue in the motion that the jury’s finding that he
did not perform any compensable work for APS is against the great weight and
preponderance of the evidence.3 Therefore, Preyear failed to preserve his challenge
to the jury’s finding. See TEX. R. CIV. P. 324(b); Cecil, 804 S.W.2d at 510. We
overrule his first issue.
Plaintiff’s Exhibit No. 31
In his second issue, Preyear contends that the trial court erred when it excluded
Plaintiff’s Exhibit No. 31. He asserts that the evidence demonstrated the services he
provided to APS, including equipment and purchases expended on behalf of and for
the benefit of APS, and that it was controlling on a material issue dispositive to the
case.
The admission or exclusion of evidence “is committed to the trial court’s
sound discretion.” Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000).
A trial court abuses its discretion when it acts without reference to any guiding rules
or principles. U–Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). For
the exclusion of evidence to constitute reversible error, the complaining party must
demonstrate (1) that the trial court committed error, and (2) that the error was
3
In his motion for new trial, Preyear argued that the trial court erred in considering
APS’s motion to exclude filed on the eve of trial, and in excluding APS’s bank
records, the testimony of his expert witness, Debbie Flanary, and a guaranty
agreement purportedly executed by him.
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reasonably calculated to, and probably did, cause rendition of an improper judgment.
McCraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992); Hahn v. Love, 394 S.W.3d 14,
34 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). “[A] successful challenge to
evidentiary rulings usually requires the complaining party to show that the judgment
turns on the particular evidence excluded or admitted.” Able, 35 S.W.3d at 617.
At trial, Preyear sought to introduce Plaintiff’s Exhibit No. 31, consisting of
bank records approximately three-quarters of an inch thick from APS’s account at
Central Bank. Appellee objected to admission of the exhibit on relevance grounds.
Preyear’s counsel argued that the bank records were relevant to show “part of the
services and the equipment and the purchases that were expended on behalf of and
for the benefit of APS,” and that she only intended to focus on two of the pages and,
in particular, on two wire transfers made by Preyear to APS. After Preyear’s counsel
identified one of the wire transfers, appellee’s counsel stated that the document itself
was only proof of a wire transfer made by Preyear’s wife to APS.4 When the trial
court asked whether there was any other purpose for offering the exhibit other than
to show the wire transfer, the following exchange took place:
[Ms. Gray]: In terms of relevance, it is relevant in that it will show the
time, what [Preyear] was doing during the time in order to make certain
decisions for the benefit of APS. He was contributing his time. He was
contributing to resolving the needs for the various services that the
4
The bank record reflects that Charlzine Preyear made a wire transfer in the amount
of $260,000 to APS’s account on November 14, 2007.
5
company needed during that period. There was already testimony that
points to there was a lot of things happening and there was a need for
someone to act as chairman.
[The Court]: And—I’m sorry. And how—again, the objection is
relevance. So how does showing these wire transfers show the amount
of time he spent?
[Ms. Gray]: Number one, he will be able to speak to that, how much
time it took for him in order to do what was necessary to complete what
his task was at that time.
[The Court]: Okay.
[Ms. Gray]: So he can testify about what was happening in both
transfers.
The trial court sustained appellee’s objection on relevance grounds because
the wire transfers from an account in a name other than Preyear’s to APS’s bank
account did not show services and equipment provided by Preyear, purchases
Preyear allegedly made for APS’s benefit, or the amount of time he spent as APS’s
chairman. Moreover, we note that even if the trial court had erred in excluding the
evidence, Preyear has not shown that its exclusion probably caused the rendition of
an improper judgment. See McCraw, 828 S.W.2d at 757; Hahn, 394 S.W.3d at 34.
Because the trial court did not err in excluding Plaintiff’s Exhibit No. 31, and in any
case no harm has been shown, we overrule Preyear’s second issue.
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Conclusion
We affirm the trial court’s judgment.
Russell Lloyd
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.
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