Dow Supply Company v. Houston Tubulars Incorporated ( 2008 )

Opinion issued May 8, 2008

  In The  

Court of Appeals

For The  

First District of Texas

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NO. 01-06-00987-CV

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DOW SUPPLY COMPANY, Appellant

V.

HOUSTON TUBULARS INCORPORATED, Appellee

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On Appeal from the 11th District Court

Harris County, Texas

Trial Court Cause No. 2006-25029  

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MEMORANDUM OPINION

          Appellant, Dow Supply Company (“Dow”) appeals the summary judgment order rendered in favor of appellee, Houston Tubulars Incorporated (“Houston Tubulars”). The trial court’s summary judgment order determined Dow’s lawsuit was precluded by res judicata. In its sole issue, Dow asserts the trial court erred by determining that its lawsuit was precluded by res judicata. We conclude the trial court properly rendered summary judgment in favor of Houston Tubulars because res judicata bars Dow’s claim for relief. We affirm the judgment of the trial court.

BackgroundDow is a company specializing in the sale of tubular products. Dow’s property was kept in storage by Houston Tubulars. When Dow could not locate all of its property that was in storage, it filed suit, claiming that its property had been sold. In its lawsuit against Houston Tubulars and Dennis Haden, an agent of Houston Tubulars, Dow alleged fraud, conversion, and breach of contract. Specifically, Dow stated,

[T]he Inventory, in large part (95%), was missing. The Defendants have refused to turn over the balance of the Inventory to [Dow].  

. . .

[T]he Defendants have sold some of the Inventory and kept the proceeds.

. . .

[T]he Defendants have provided accountings to Plaintiff in which the status of the Inventory was falsely, knowingly and intentionally misrepresented. The Defendants represented to Plaintiff that the Inventory was intact and in storage when it was not, and in fact over the years being sold by the Defendants.

. . .

By selling all or a portion of the Inventory, the Defendants have breached their storage contract with Plaintiff, converted such Inventory to their own purposes and have committed theft.

Dow requested damages consisting of the value of the inventory, lost profits, attorney’s fees, punitive damages, costs, and pre- and post-judgment interest.

          After a trial on the merits, the jury found that a contract for “loading, trucking, unloading, segregating, sorting, storing, selling, or purchasing” pipe existed between Dow and Houston Tubulars. The jury also found that neither Houston Tubulars nor Dow breached the contract. Due to its finding of no breach, the jury followed the instructions given and did not answer any of the questions regarding damages. In accordance with the jury’s determination, the judge rendered a take-nothing judgment in favor of Houston Tubulars in 2005. The judgment was not appealed by Dow.

          About six months after the judgment was rendered, Dow filed the present suit. In its petition in the second suit, Dow asserted,

Houston Tubulars sold the inventory and has received and maintains the proceeds of the sale of that inventory.

. . .

Houston Tubulars has failed to account for the proceeds of that sale . . . .

. . .

[T]hese parties previously litigated Plaintiff’s claim that the subject inventory was either stolen, converted or otherwise sold without Plaintiff’s permission. The jury ruled that the parties had entered into an agreement for the sale of the subject inventory but did not reach a decision under the jury charge as to the amount to be paid from the Defendant to the Plaintiff. The Defendant continues to hold the proceeds of the sale of the subject inventory. Accordingly, the Defendant has been unjustly enriched by having sold the Plaintiff’s inventory but turning over nothing in payment. This unjust enrichment and failure to turn over funds under whatever contract the jury believed was in place is, in fact, a new breach of contract.

Dow sought an accounting and payment of the proceeds, along with interest, attorney’s fees, and costs.

          In its answer to this lawsuit filed by Dow, Houston Tubulars denied all of Dow’s claims and asserted the affirmative defense of res judicata, which was the ground later asserted in the motion for summary judgment filed by Houston Tubulars. The motion claimed this lawsuit was barred by res judicata due to the jury’s verdict in the first lawsuit. The motion’s evidence included Dow’s petitions in both suits, the final judgment of the trial court in the first suit, and the official jury questions.

          Dow’s response to the motion for summary judgment was that this suit was

an effort to enforce the previous judgment which the Defendant has refused to honor. . . . The jury found that a contract existed between the parties. Since the time of that judgment, the Defendant has failed and refused to make payment pursuant to that contract.

The court determined this lawsuit was precluded by the trial court’s judgment in the earlier lawsuit.

Waiver of Appeal

          Dow fails to cite to the record or to any case law in support of its contention. Texas Rule of Appellate Procedure 38.1(h) requires that an appellant’s brief “contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(h). “Rule 38 requires [a party] to provide us with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue.” Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). “This is not done by merely uttering brief conclusory statements, unsupported by legal citations.” Id. “Issues on appeal are waived if an appellant fails to support his contention by citations to appropriate authority or cites only to a single non-controlling case.” Abdelnour v. Mid Nat’l Holdings, Inc., 190 S.W.3d 237, 241 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177, 189 (Tex. App.—Houston [1st Dist.] 2005, no pet.). Dow’s argument does not contain a single citation to a legal authority or the record. We therefore hold that Dow has waived its right of appeal due to inadequate briefing. Tex. R. App. P. 38.1(h); Wheeler v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex. App.—Houston [1st Dist.] 2002, no pet.). We overrule Dow’s sole issue.

Conclusion

          We affirm the judgment of the trial court.

                                                                        Elsa Alcala

                                                                        Justice  

Panel consists of Justices Taft, Keyes, and Alcala.