Business Product Supply v. Marlin Leasing Corporation ( 2013 )

NUMBER 13-11-00371-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
BUSINESS PRODUCT
SUPPLY, Appellant,
v.
MARLIN LEASING
CORPORATION, Appellee.
On appeal from the 117th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Longoria
Memorandum Opinion by Justice Longoria
On September 18, 2006, Business Product Supply (“BPS”), a retailer of copy
machines and other office equipment, filed this suit against Mark Thompson, one of its
employees, and Marlin Leasing Corporation (“Marlin”), one of its major customers,
asserting various causes of action, including among others, breach of contract, breach
of fiduciary duty, negligence, negligence per se, and fraud, arising from transactions
dating as far back as 1999, when BPS first began selling office equipment to Marlin.
BPS took an interlocutory default judgment against Thompson, but Marlin answered the
suit, asserting various counterclaims against BPS, including among others, breach of
contract and negligent misrepresentation. The case proceeded to trial on November 8,
2010. The trial court dismissed several of BPS’s claims before it submitted the charge
to the jury, which on December 2, 2010, returned a verdict in favor of Marlin on all
claims by and against BPS. After the trial court entered a final judgment on the verdict,
BPS filed this appeal, contending in eighty issues that it is entitled to a new trial
because the trial court committed reversible error throughout the proceedings. For the
reasons set forth below, we affirm the judgment of the trial court.1
I. ISSUE ONE
In its first issue, BPS contends that the trial court erred in denying its requested
question, instructions, and definitions regarding whether Marlin acted as a joint
tortfeasor in Mark Thompson’s breach of fiduciary duty to BPS. See ERI Consulting
Eng'rs, Inc. v. Swinnea, 318 S.W.3d 867, 881 (Tex. 2010) (“It is settled as the law of this
State that where a third party knowingly participates in the breach of duty of a fiduciary,
such third party becomes a joint tortfeasor with the fiduciary and is liable as such.”)
1
Because the parties could not agree on a statement of facts, see TEX. R. APP. P. 38.1(g), and
because this Court is not a finder of fact, see Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407
(Tex. 1998), we will recite additional facts only to the extent necessary to explain the basic reasons for
our decision. See TEX. R. APP. P. 47.4 (“[T]he court should write a brief memorandum opinion no longer
than necessary to advise the parties of the court’s decision and the basic reasons for it.”).
2
(quoting Kinzbach Tool Co. v. Corbett-Wallace Corp., 160 S.W.2d 509, 514 (Tex.
1942)).
A. Preservation of Error
“Parties and courts have long struggled with requirements for preserving charge
error.” Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817, 829 (Tex. 2012). “Our
procedural rules state that a complaint to a jury charge is waived unless specifically
included in an objection.” Id. (citing TEX. R. CIV. P. 274; TEX. R. APP. P. 33.1(a)). “In
State Department of Highways & Public Transportation v. Payne, recognizing that
charge practice had become a ‘labyrinth daunting to the most experienced trial lawyers,’
. . . [the Texas Supreme Court] simplified the test for determining whether error was
preserved.” Id. (quoting State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d
235, 240 (Tex. 1992)). “Like most error preservation requirements, the inquiry focuses
on the trial court’s awareness of, and opportunity to remedy, the problem.” Id. “There
should be but one test for determining if a party has preserved error in the jury charge,
and that is whether the party made the trial court aware of the complaint, timely and
plainly, and obtained a ruling.” Payne, 831 S.W.2d at 241. The Texas Supreme Court
“articulated this requirement to simplify a process that had been beset with ‘complex,
intricate, sometimes contradictory, unpredictable rules’ that ‘hardly subserve[d] the fair
and just presentation of the case.’” Cruz, 364 S.W.3d at 829 (quoting Payne, 831
S.W.2d at 241).
“Trial courts lack the time and the means to scour every word, phrase, and
omission in a charge that is created in the heat of trial in a compressed period of time.”
Id. at 829–30. “A proposed charge, whether drafted by a party or by the court, may
3
misalign the parties; misstate the burden of proof; leave out essential elements; or omit
a defense, cause of action, or . . . a line for attorney’s fees.” Id. at 830. “Our procedural
rules require the lawyers to tell the court about such errors before the charge is formally
submitted to a jury.” Id. (citing TEX. R. CIV. P. 272). “Failing to do so squanders judicial
resources, decreases the accuracy of trial court judgments and wastes time the judge,
jurors, lawyers, and parties have devoted to the case.” Id.
“A charge filed before trial begins rarely accounts fully for the inevitable
developments during trial.” Id. at 831. “For these reasons, our procedural rules require
that requests be prepared and presented to the court ‘within a reasonable time after the
charge is given to the parties or their attorneys for examination.’” Id. (quoting TEX. R.
CIV. P. 273) (emphasis in original). “Notwithstanding our rules, [the Texas Supreme
Court has] . . . held that a party may rely on a pretrial charge as long as the record
shows that the trial court knew of the written request and refused to submit it.” Id.
“Although trial courts must prepare and deliver the charge, we cannot expect them to
comb through the parties’ pretrial filings to ensure that the resulting document comports
precisely with their requests—that is the parties’ responsibility.” Id. “Again, trial court
awareness is the key.” Id.
B. Applicable Law
“Texas Rule of Civil Procedure 277 states that ‘[i]n all jury cases the court shall,
whenever feasible, submit the cause upon broad-form questions,’ but this does not
create an inflexible mandate.” Tex. Comm’n on Human Rights v. Morrison, 381 S.W.3d
533, 537 (Tex. 2012) (quoting TEX. R. CIV. P. 277). “[W]hen the trial court is unsure
whether it should submit a particular theory of liability, separating liability theories best
4
serves the policy of judicial economy underlying Rule 277 by avoiding the need for a
new trial when the basis for liability cannot be determined.” Crown Life Ins. Co. v.
Casteel, 22 S.W.3d 378, 390 (Tex. 2000).
The trial court “is also required to give ‘such instructions and definitions as shall
be proper to enable the jury to render a verdict.’” Columbia Rio Grande Healthcare,
L.P. v. Hawley, 284 S.W.3d 851, 855 (Tex. 2008) (quoting TEX. R. CIV. P. 277). “An
instruction is proper if it (1) assists the jury, (2) accurately states the law, and (3) finds
support in the pleadings and evidence.” Id.
C. Standard of Review
“The standard for review of the charge is abuse of discretion.” Tex. Dep’t of
Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990); see also Thota v. Young, 366
S.W.3d 678, 687 (Tex. 2012) (“The trial court has considerable discretion to determine
proper jury instructions . . . .”) (quotation omitted). “One way in which a trial court
abuses its discretion is by failing to follow guiding rules and principles.” Hawley, 284
S.W.3d at 855. “With the charge issues properly preserved and contested on appeal,
an appellate court reviews the basis of the complaints and reverses only if the alleged
charge errors were harmful.” Thota, 366 S.W.3d at 691. “Error in the jury charge is
reversible only if it is reasonably calculated to and probably did cause rendition of an
improper judgment.” La.-Pac. Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998).
“Charge error is generally considered harmful if it relates to a contested, critical issue.”
Hawley, 284 S.W.3d at 855; see also Quantum Chem. Corp. v. Toennies, 47 S.W.3d
473, 480 (Tex. 2001) (“An improper instruction is especially likely to cause an unfair trial
when the trial is contested and the evidence sharply conflicting . . . .”).
5
D. Proceedings
The record reflects that, on November 29, 2010, BPS submitted three sets of
proposed questions with instructions and definitions on its joint-tortfeasor claim. See
TEX. R. CIV. P. 273 (“Either party may present to the court and request written questions,
definitions, and instructions to be given to the jury; and the court may give them or a
part thereof, or may refuse to give them, as may be proper.”). The first asked, “On the
occasion in question, were Marlin . . . and Mark Thompson engaged in a joint
enterprise?” The trial court did not endorse its refusal of this proposed submission.
See TEX. R. CIV. P. 276 (“When an instruction, question, or definition is requested and
the provisions of the law have been complied with and the trial judge refuses the same,
the judge shall endorse thereon ‘Refused,’ and sign the same officially.”). The second
asked, “Was [sic] Mark Thompson and Marlin . . . engaged in a joint enterprise?” This
request included an instruction stating that “where a third party knowingly participates in
the breach of duty of a fiduciary, such third party becomes a joint tortfeasor with the
fiduciary and is liable as such.” The trial court endorsed its refusal of this requested
submission. See id. Finally, the third asked, “Did Marlin . . . knowingly participate in
Richard Mark Thompson[’]s breach of fiduciary duty to . . . [BPS]?” The trial court
endorsed its denial of the requested submission. See id.
Also on November 29, 2010, the trial court conducted a charge conference
during which counsel for BPS made a second attempt to request the submission of
BPS’s proposed questions on the joint-tortfeasor claim.2 The trial court interrupted
2
The record indicates that the charge conference commenced at 7:13 a.m. The record also
indicates that, at that time, the trial court had already provided the parties with the court’s proposed
charge. Although the record shows that the court endorsed its denial of BPS’s requested submissions on
the same date, it is unclear whether the trial court did so before, during, or after the charge conference.
6
counsel, stating, “These are all taken care of by the directed verdict.” The court
continued, “They’re not going to be submitted because there’s been a directed verdict
granted.” Counsel for BPS asked, “What about fiduciary?” And the court answered,
“Again, another one which was denied by directed verdict.” Then, counsel for BPS
stated, “Plaintiff submits for joint venture.” And the trial court responded, “Again,
previously granted—I mean, granted a directed verdict with regards to those issues.”
E. Discussion
BPS argues that the trial court erred in failing to submit its proposed questions on
its claim that Marlin was a joint tortfeasor in Thompson’s breach of fiduciary duty to
BPS. However, as set forth above, the trial court clearly stated—without objection by
BPS—that it was refusing the requested submissions because a directed verdict had
been granted on that claim and others. See TEX. R. APP. P. 33.1(a). Our review of the
record indicates that the trial court had not previously announced that a directed verdict
had been granted on the joint-tortfeasor claim.3 This leaves two possibilities. One is
that the trial court was simply mistaken about the status of the claim, thinking the claim
Only one of BPS’s proposed submissions, a requested instruction on apparent authority, was endorsed
by the trial court with a date and time, reflecting that the judge denied the request in writing at 7:18 a.m.,
which would have been during the charge conference.
3
The claim was not included in the order granting Marlin’s directed verdict dated November 19,
2010, which states that a directed verdict was granted in favor of Marlin as to the following:
1. Fraud
2. Malice
3. Negligence as to any claim that Marlin did not meet industry standard and general
[sic] negligence, except as noted below
4. Gross negligence as to all matters except the failure of Marlin Leasing Company [sic]
to notify John Hatton of the payment of points to Richard Mark Thompson
5. Negligent Misrepresentation
7
was dismissed when it was actually still pending. If so, it was BPS’s obligation to make
the trial court aware of the mistake. See Cruz, 364 S.W.3d at 829 (explaining that issue
preservation requires “the trial court’s awareness of, and opportunity to remedy, the
problem”). A simple objection would have sufficed. See TEX. R. CIV. P. 272
(“[O]bjections shall in every instance be presented to the court in writing, or be dictated
to the court reporter in the presence of the court and opposing counsel, before the
charge is read to the jury.”). By failing to object, BPS waived the error. See id. (“All
objections not so presented shall be considered as waived.”).
The second possibility is that the trial court intended to grant a directed verdict
and was announcing that ruling for the first time during the charge conference. 4 If so,
the trial court properly refused the requested submissions. See TEX. R. CIV. P. 278;
Harris County v. Smith, 96 S.W.3d 230, 236 (Tex. 2002) (“Whether a granulated or
broad-form charge is submitted, the trial court’s duty is to submit only those questions,
instructions, and definitions raised by the pleadings and the evidence.”). Either way,
BPS cannot prevail on this issue. Accordingly, it is overruled.
II. ISSUE TWO
In its second issue, BPS argues that the trial court erred in denying its requested
question, instructions, and definitions regarding whether Marlin knowingly participated in
Mark Thompson’s breach of fiduciary duty to BPS. This is the same claim that was the
subject of BPS’s first issue. See Swinnea, 318 S.W.3d at 881. Accordingly, for the
4
We note that BPS has not assigned error to the trial court’s granting of a directed verdict on its
joint-tortfeasor claim. See Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (per curiam)
(“It is axiomatic that an appellate court cannot reverse a trial court’s judgment absent properly assigned
error.”).
8
reasons stated above, we conclude that BPS cannot prevail on this issue. See TEX. R.
APP. P. 47.1. Therefore, it is overruled.
III. ISSUE THREE
In its third issue, BPS argues that the trial court erred in failing to include a
question in the jury charge on its cause of action against Marlin for conspiring with Mark
Thompson to cause Mark Thompson to breach his fiduciary duty to BPS.
A. Proceedings
Our review of the record indicates that BPS submitted a proposed jury question
on this claim, which the trial court denied in writing. See TEX. R. CIV. P. 273, 276. At
the charge conference, the following exchange occurred:
[Counsel for BPS]: And finally, conspiracy.
The Court: Already denied at the directed verdict, but granted at
your request—denied at your request, as an issue.
[Counsel for BPS]: And that would conclude our objections, Plaintiffs.
The Court: All right.
B. Discussion
BPS argues that the trial court erred in failing to submit its proposed question on
its claim that Marlin conspired with Thompson to cause Thompson to breach his
fiduciary duty to BPS; however, the trial court clearly stated—without objection by
BPS—that a directed verdict had been granted on that claim. See TEX. R. APP. P.
33.1(a). If so, then the trial court was not required to submit BPS’s requested question.5
5
Our review of the record indicates that the trial court had not previously announced that a
directed verdict had been granted on the claim for conspiracy to breach fiduciary duty. The claim was not
9
See TEX. R. CIV. P. 278; Harris County, 96 S.W.3d at 236. Alternatively, if the claim had
not been dismissed, BPS failed to make the trial court aware that the claim remained
pending and thus failed to preserve this issue for appellate review. See Cruz, 364
S.W.3d at 829. As a result, BPS cannot prevail on this issue. Accordingly, it is
overruled.
IV. ISSUE FOUR
In its fourth issue, BPS argues that the trial court erred in granting a directed
verdict on its fraud claim. In response, Marlin argues that the issue has been
inadequately briefed and therefore waived. See TEX. R. APP. P. 38.1(i). We agree.
A. Applicable Law
“Appellate courts should reach the merits of an appeal whenever reasonably
possible.” Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008). “[D]isposing of appeals
for harmless procedural defects is disfavored.” Id. The Texas Supreme Court has
“instructed the courts of appeals to construe the Rules of Appellate Procedure
reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements
not absolutely necessary to effect the purpose of a rule.” Verburgt v. Dorner, 959
S.W.2d 615, 616–17 (Tex. 1997).
“The Texas Rules of Appellate Procedure require adequate briefing.” Swinnea,
318 S.W.3d at 880. Furthermore, “error may be waived by inadequate briefing.”
Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994).
“Points of error must be supported by argument and authorities, and if not so supported,
included in the order granting Marlin’s directed verdict dated November 19, 2010 or the order granting
Marlin’s motions for summary judgment dated October 14, 2010. We note that BPS has not assigned
error to the trial court’s granting of a directed verdict or summary judgment on the claim for conspiracy to
breach fiduciary duty. See Pat Baker Co., 971 S.W.2d at 450.
10
the points are waived.” Trenholm v. Ratcliff, 646 S.W.2d 927, 934 (Tex. 1983); see also
Smith v. Tilton, 3 S.W.3d 77, 84 (Tex. App.—Dallas 1999, no pet.) (“Points of error
asserted on appeal but not briefed are waived.”).
“It is not the proper role of this Court to create arguments for an appellant—we
will not do the job of the advocate.” Paselk v. Rabun, 293 S.W.3d 600, 613 (Tex.
App.—Texarkana 2009, pet. denied); G.R.A.V.I.T.Y. Enters. v. Reece Supply Co., 177
S.W.3d 537, 546 (Tex. App.—Dallas 2005, no pet.) (“This Court is not responsible for
making [a party’s] . . . arguments for it.”). “[The parties] must put forth some specific
argument and analysis showing that the record and the law support[] their contentions.”
San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston [14th
Dist.] 2005, no pet.). “Failure to provide substantive analysis waives an issue on
appeal.” PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 722 (Tex.
App.—Dallas 2011, pet. denied).
B. Discussion
BPS contends that the trial court erred in granting a directed verdict on its fraud
claim; however, in its appellate brief, BPS offers only the following statement in support
of this issue:
Marlin knew BPS was ignorant it was paying Thompson points, using
lease funding to reduce its past due receivables, distributing to third
parties, and using Thompson’s services for Marlin[-]related business, for
which Marlin induced BPS to take action that harmed BPS because BPS
acted without knowledge of undisclosed facts and did not have an equal
opportunity to discover.
11
In its brief, BPS has failed to (1) identify the grounds on which Marlin sought a
directed verdict, (2) identify the grounds, if any, on which BPS opposed Marlin’s motion
for a directed verdict, and (3) provide a concise argument with appropriate citations to
authorities and to the record to support its contention that the trial court erred in granting
a directed verdict. See TEX. R. APP. P. 38.1(i). BPS has failed to apply the law to the
facts of the case in a substantive analysis that demonstrates that the trial court erred in
granting the directed verdict. See MumboJumbo, 350 S.W.3d at 722. Accordingly, we
conclude that the issue is inadequately briefed, and the error, if any, is waived. See
Fredonia State Bank, 881 S.W.2d at 284.
BPS’s fourth issue is overruled.
V. ISSUE FIVE
In its fifth issue, BPS argues that the trial court erred in failing to submit its fraud
claim in the jury charge. Since the claim was dismissed by directed verdict and BPS
waived any error with respect to the ruling, BPS cannot establish reversible error in the
trial court’s refusal to submit the claim to the jury. See TEX. R. APP. P. 44.1(a).
BPS’s fifth issue is overruled.
VI. ISSUE SIX
In its sixth issue, BPS contends that the trial court erred in granting summary
judgment on its breach of fiduciary duty claim. We have reviewed BPS’s brief and have
found no argument in support of this issue. See TEX. R. APP. P. 38.1(i). Accordingly,
the issue has been inadequately briefed, and the error, if any, is waived. See Fredonia
State Bank, 881 S.W.2d at 284.
BPS’s sixth issue is overruled.
12
VII. ISSUE SEVEN
In its seventh issue, BPS contends that the trial court erred in failing to include its
claim for breach of fiduciary duty in the jury charge. Since the claim was dismissed by
summary judgment and BPS waived any error with respect to the ruling, BPS cannot
establish reversible error in the trial court’s refusal to submit the claim to the jury. See
TEX. R. APP. P. 44.1(a).
BPS’s seventh issue is overruled.
VIII. ISSUE EIGHT
In its eighth issue, BPS contends that the trial court erred in “defacing and
altering the jury’s verdict by writing on the verdict notes characterizing BPS’s claims and
[the] Court’s observations unrelated to the legal issues.” We have reviewed BPS’s brief
and have found no argument in support of this issue. See TEX. R. APP. P. 38.1(i).
Accordingly, the issue has been inadequately briefed, and the error, if any, is waived.
See Fredonia State Bank, 881 S.W.2d at 284.
BPS’s eighth issue is overruled.
IX. ISSUE NINE
In its ninth issue, BPS contends that the trial court erred in “[s]ubmitting
superfluous and multifarious instructions with each question resulting in tilting the jury
towards a verdict for Marlin . . . and against . . . [BPS].” We have reviewed BPS’s brief
and have found no argument in support of this issue. See TEX. R. APP. P. 38.1(i).
Accordingly, the issue has been inadequately briefed, and the error, if any, is waived.
See Fredonia State Bank, 881 S.W.2d at 284.
13
BPS’s ninth issue is overruled.
X. ISSUE TEN
In its tenth issue, BPS contends that the trial court erred in “[p]lacing the
defensive questions in the charge before the questions in which . . . [BPS] had the
burden of proof.” BPS made this objection during the charge conference, and it was
overruled by the trial court. See TEX. R. CIV. P. 272. Therefore, the issue is preserved
for our review. See Thota, 366 S.W.3d at 689.
A. Applicable Law
“The goal of the charge is to submit to the jury the issues for decision logically,
simply, clearly, fairly, correctly, and completely.” Hyundai Motor Co. v. Rodriguez, 995
S.W.2d 661, 664 (Tex. 1999). “The trial court has broad discretion in submitting jury
questions so long as the questions submitted fairly place the disputed issues before the
jury.” Wooldridge v. TXU Electric Delivery Co., 236 S.W.3d 484, 487 (Tex. App.—
Dallas 2007, no pet.).
B. Discussion
BPS argues that the ordering of the questions “nudged the jury towards a
favorable Marlin verdict [by] forcing the jury to consider affirmative defense questions
before reaching BPS’s affirmative claims.” Having reviewed the charge as a whole, we
are not persuaded that the ordering of the questions constituted an impermissible
comment on the evidence or that it otherwise prevented the disputed issues from being
fairly submitted to the jury. See id. The ordering of the questions did not indicate the
judge’s opinion or otherwise suggest an answer concerning a matter to be determined
by the jury. See Knoll v. Neblett, 966 S.W.2d 622, 640 (Tex. App.—Houston [14th Dist.]
14
1998, pet. denied) (“[A charge is] rendered an impermissible comment when it indicates
the judge’s opinion concerning a matter to be determined by the jury.”). BPS has failed
to demonstrate how the ordering of the questions “nudged the jury towards a favorable
Marlin verdict,” and our review of the charge indicates that it did not. Accordingly, we
conclude that BPS has failed to establish that the trial court abused its discretion in
ordering the questions. See E.B., 802 S.W.2d at 649.
BPS’s tenth issue is overruled.
XI. ISSUE ELEVEN
In its eleventh issue, BPS contends that the trial court erred in “[f]ailing to ‘hook’
Marlin’s defensive questions to affirmative jury questions upon which BPS had the
burden of proof.” According to BPS, the trial “[c]ourt erred in affirmatively submitting
Marlin’s defensive questions (1, 2, and 3) rather than conditioning (hooking) them to
affirmative responses to BPS’s claims.”
A. Issue Preservation
At the charge conference, BPS objected “on the basis that Question No. 1 is not
hooked to the breach of contract claim [Question No. 4].” See TEX. R. CIV. P. 272. The
trial court overruled the objection. BPS did not make the same objection to question 2
or question 3. Therefore, the issue is preserved only as to question 1. See Thota, 366
S.W.3d at 689.
B. Jury Charge and Verdict
In relevant part, the jury charge provided as follows:
15
QUESTION NUMBER 1
Did Mark Thompson have the actual or apparent authority to act for
Business Product Supply with respect to the transactions with Marlin
Leasing Corporation that are the basis of this lawsuit?
....
Answer “Yes” or “No.”
Answer: Yes
....
QUESTION NUMBER 4
Did Marlin Leasing Corporation fail to comply with its agreement, if
any, with Business Product Supply?
....
Answer “Yes” or “No” as to each element.
a. By failing to fund equipment purchased from Business Product
Supply via ACH electronic transfer to Business Product Supply’s
account with Frost Bank.
Answer: No
b. By failing to fund soft assets via ACH electronic transfer to
Business Product Supply[’s] account with Frost Bank?
Answer: No
c. By paying points or referral fees directly to Mark Thompson?
Answer: No
C. Discussion
BPS has not provided a clear and concise argument for its contention that the
trial court erred in failing to predicate question 1 upon an affirmative finding of liability in
answer to question 4. See TEX. R. APP. P. 38.1(i). BPS has not applied the controlling
16
law to the facts of the case in a substantive analysis that demonstrates that the trial
court had no discretion to submit question 1 unconditionally. See MumboJumbo, 350
S.W.3d at 722. BPS states that “[b]y definition, affirmative defenses are responsive to a
Plaintiff’s claim and placing defense questions before the affirmative claims to which
they apply puts the ‘cart before the horse.’” Yet, BPS has not provided any argument or
analysis to explain the significance of question 1 or how it could be used to establish an
affirmative defense to the breach of contract claim in question 4. See id. In short, BPS
has not established that the trial court put “the cart before the horse.” To the extent that
the issue has not been inadequately briefed, see TEX. R. APP. P. 38.1(i), we conclude
that no abuse of discretion has been established. See E.B., 802 S.W.2d at 649.
BPS’s eleventh issue is overruled.
XII. ISSUE TWELVE
In its twelfth issue, BPS contends that the trial court erred in “[f]ailing to submit a
jury question and accompanying instructions on Marlin collaborating with Thompson to
commit commercial bribery.”
A. Proceedings
Our review of the record indicates that BPS submitted a proposed jury question
on this claim, which the trial court denied in writing. See TEX. R. CIV. P. 273, 276. At
the charge conference, the following exchange occurred:
[Counsel for BPS]: [W]e are submitting one for commercial bribery and
misapplication of fiduciary funds.
The Court: With regards to these submissions, it’s already been
denied by directed verdict on commercial bribery and
breach of fiduciary duty.
B. Discussion
17
BPS argues that the trial court erred in failing to submit its proposed question on
commercial bribery; however, as set forth above, the trial court clearly stated—without
objection by BPS—that it was refusing the requested submission because a directed
verdict had been granted on that claim. See TEX. R. APP. P. 33.1(a). If the claim was
dismissed, then the trial court was not required to submit BPS’s requested question. 6
See TEX. R. CIV. P. 278; Harris County, 96 S.W.3d at 236. Alternatively, if the claim had
not been dismissed, BPS failed to make the trial court aware that the claim remained
pending, and therefore, the error, if any, was waived. See Cruz, 364 S.W.3d at 829;
see also TEX. R. CIV. P. 272. Either way, BPS cannot prevail on this issue. Accordingly,
it is overruled.
XIII. ISSUE THIRTEEN
In its thirteenth issue, BPS contends that the trial court erred in “[f]ailing to submit
a jury question and accompanying instructions on Thompson and Marlin’s
misapplication of fiduciary property.”
A. Proceedings
Our review of the record indicates that BPS submitted a proposed jury question
on this claim, which the trial court denied in writing. See TEX. R. CIV. P. 273, 276. At
the charge conference, the following exchange occurred:
[Counsel for BPS]: [W]e are submitting one for commercial bribery and
misapplication of fiduciary funds.
6
Our review of the record indicates that the trial court had not previously announced that a
directed verdict had been granted on commercial bribery. It was not included in the order granting
Marlin’s directed verdict dated November 19, 2010. However, commercial bribery relates to BPS’s claim
for negligence per se, which the trial court dismissed by summary judgment on October 14, 2010. We
note that BPS has not properly assigned error to the trial court’s granting of summary judgment on this
claim. See Pat Baker Co., 971 S.W.2d at 450.
18
The Court: With regards to these submissions, it’s already been
denied by directed verdict on commercial bribery and
breach of fiduciary duty.
B. Discussion
BPS argues that the trial court erred in failing to submit its proposed question and
accompanying instruction on misapplication of fiduciary property; however, the trial
court clearly stated—without objection by BPS—that a directed verdict had been
granted on that claim. See TEX. R. APP. P. 33.1(a). If the claim had been dismissed,
then the trial court was not required to submit BPS’s requested question. 7 See TEX. R.
CIV. P. 278; Harris County, 96 S.W.3d at 236. Alternatively, if the claim had not been
dismissed, BPS failed to make the trial court aware that the claim remained pending,
and the error, if any, was waived. See Cruz, 364 S.W.3d at 829; see also TEX. R. CIV.
P. 272. Either way, BPS cannot prevail on this issue. Accordingly, it is overruled.
XIV. ISSUE FOURTEEN
In its fourteenth issue, BPS contends that the trial court erred in “[f]ailing to
submit a jury question and accompanying instruction on BPS[’] damages to mitigate
potential claims against Marlin lease customers.”
A. Proceedings
Our review of the record indicates that BPS submitted a proposed jury question
on this claim, which asked, “What sum of money if paid now in cash would fairly and
reasonably compensate . . . [BPS] for the amounts . . . [BPS] paid to Marlin . . . to
7
Our review of the record indicates that the trial court had not previously announced that a
directed verdict had been granted on misapplication of fiduciary property. It was not included in the order
granting Marlin’s directed verdict dated November 19, 2010. However, misapplication of fiduciary
property relates to BPS’s claim for negligence per se, which the trial court dismissed by summary
judgment on October 14, 2010. We note that BPS has not properly assigned error to the trial court’s
granting of summary judgment on this claim. See Pat Baker Co., 971 S.W.2d at 450.
19
mitigate the potential claims by Marlin lease customers?” See TEX. R. CIV. P. 273. The
trial court denied the request in writing. See TEX. R. CIV. P. 276.
At the charge conference, the following exchange occurred:
[Counsel for BPS]: The Plaintiff further objects to the submission of
Question No. D. on Question 8 as being the proper
submission of the mitigation [of] damages.
The Court: Denied.
....
[Counsel for BPS]: The Plaintiff also submits what should be a proper
question and issue for the mitigation [of] damages to
be submitted to the jury for both breach of contract
[claims].
The Court: This is Question 1?
[Counsel for BPS]: Well, no, it should be Question 8. Let me fix that, to
include an instruction as to mitigation [of] damages.
The Court: I think we have a general instruction in the
instructions, do we not?
[Counsel for Marlin]: Yes, we do. It’s in the general instructions.
The Court: All right.
[Counsel for BPS]: Plaintiff further objects to -- that concludes our
objections to Question No. 8.
B. Jury Charge and Verdict
In relevant part, the jury charge provided as follows:
QUESTION NUMBER 8
What sum of money, if paid now in cash, would fairly and
reasonably compensate . . . [BPS], for its damages, if any, that resulted
from the conduct?
Answer separately in Dollars and Cents, for damages, if any.
20
....
b. The reasonable and necessary payments made, if any, by . .
. [BPS] to avoid potential claims by customers attributed
solely to the wrongdoing of Marlin . . . and not attributable to
any wrongdoing of . . . [BPS] or Mark Thompson?
Answer: $72,105.08
C. Discussion
BPS contends that it “was entitled to an instruction on mitigation in damage
question 8.” BPS further contends that the trial “[c]ourt erred [in] limiting the jury’s
inquiry of BPS’s damages in [question] 8.b. and denying BPS a question on reasonable
and necessary payments BPS made to avoid potential litigation constitutes a ‘double
dip’ for Marlin.” We disagree.
First, contrary to BPS’s suggestion, the trial court did, in fact, submit question 8b
on mitigation of damages. Second, to the extent that BPS contends that it was entitled
to an instruction on mitigation, that issue was not preserved because BPS failed to
make the trial court aware that there was no instruction on mitigation of damages and
failed to object when counsel for Marlin told the trial court that an instruction had already
been included in the charge, when it had not. See Cruz, 364 S.W.3d at 829. Third and
finally, to the extent that BPS contends that the trial court erred in limiting the jury’s
inquiry regarding damages, it failed to make that objection and obtain a ruling from the
trial court at the charge conference. See Thota, 366 S.W.3d at 689. In fact, the only
objection counsel for BPS made was to the question being the “proper submission of
the mitigation [of] damages,” which did not make the trial court aware of the purported
problem. See Cruz, 364 S.W.3d at 829. In any event, BPS has failed to provide a clear
and concise argument for the contention made, with appropriate citations to authorities.
21
See TEX. R. APP. P. 38.1(i). Therefore, to the extent the issue was preserved for our
review, if at all, see Cruz, 364 S.W.3d at 829, the error, if any, is waived by inadequate
briefing. See Fredonia State Bank, 881 S.W.2d at 284.
BPS’s fourteenth issue is overruled.
XV. ISSUE FIFTEEN
In its fifteenth issue, BPS contends that the trial court erred in “[f]ailing to submit
jury questions asking specific inquiries [about] whether Mark Thompson was acting as
an agent for both BPS and Marlin in directing and distributing lease funding, collecting
from leases on past due accounts, authorizing payment of points, executing recourse
agreements, and the accompany definition of agency.” We have reviewed BPS’s brief
and have found no argument in support of this issue. See TEX. R. APP. P. 38.1(i).
Accordingly, the issue has been inadequately briefed, and the error, if any, is waived.
See Fredonia State Bank, 881 S.W.2d at 284. Furthermore, the issue of Mark
Thompson’s dual agency with respect to the transactions at issue in this case was
submitted to the jury in question 2, and BPS has not demonstrated that the trial court’s
failure to submit jury questions asking its specific inquiries was reasonably calculated to
and probably did cause the rendition of an improper judgment. See La. Pac. Corp., 976
S.W.2d at 676. Accordingly, even if the issue had not been waived, the error, if any,
was not reversible. See TEX. R. APP. P. 44.1(a).
BPS’s fifteenth issue is overruled.
XVI. ISSUE SIXTEEN
In its sixteenth issue, BPS contends that the trial court erred in “[f]ailing to submit
jury questions asking specific inquiries [about] whether Mark Thompson was acting as
22
an agent for both BPS and Marlin in accepting points and engaging in conduct
benefitting Marlin to BPS’s detriment.” Our review of the record indicates that BPS
submitted a proposed jury question with four sub-parts, as follows: (1) “directing the
distribution of lease funding,” (2) “collecting from leases on past due accounts,” (3)
“authorizing points to be paid directly to Mark Thompson,” and (4) “executing recourse
agreements.” See TEX. R. CIV. P. 273. The trial court did not endorse its denial of the
proposed question. See TEX. R. CIV. P. 276. More importantly, the proposed jury
question did not include “accepting points” or “engaging in conduct benefitting Marlin to
BPS’s detriment.” Accordingly, the trial court’s failure to submit a question asking about
Mark Thompson’s capacity in “accepting points” and “engaging in conduct benefitting
Marlin to BPS’s detriment” is not a ground for reversal. See TEX. R. CIV. P. 278 (“Failure
to submit a question shall not be deemed a ground for reversal of the judgment, unless
its submission, in substantially correct wording, has been requested in writing and
tendered by the party complaining of the judgment.”).
Furthermore, as noted above, the issue of Mark Thompson’s dual agency with
respect to the transactions at issue in this case was submitted to the jury in question 2,
and BPS has not demonstrated that the trial court’s failure to submit jury questions
asking its specific inquiries was reasonably calculated to and probably did cause the
rendition of an improper judgment. See La. Pac. Corp., 976 S.W.2d at 676.
Accordingly, even if the issue had not been waived, the error, if any, was not reversible.
See TEX. R. APP. P. 44.1(a).
BPS’s sixteenth issue is overruled.
23
XVII. ISSUE SEVENTEEN
In its seventeenth issue, BPS contends that the trial court erred in “[f]ailing to
submit BPS’s requested instruction on ‘apparent authority’ in question 1.” We have
reviewed BPS’s brief and have found no argument in support of this issue. See TEX. R.
APP. P. 38.1(i). Accordingly, the issue has been inadequately briefed, and the error, if
any, is waived. See Fredonia State Bank, 881 S.W.2d at 284. Moreover, the trial court
submitted a definition of “apparent authority” in question 1, which BPS has failed to
establish was incorrect. Thus, even if the issue had not been waived by inadequate
briefing, BPS has not demonstrated that the trial court committed reversible error. See
TEX. R. APP. P. 44.1(a).
BPS’s seventeenth issue is overruled.
XVIII. ISSUE EIGHTEEN
In its eighteenth issue, BPS contends that the trial court erred in “[f]ailing to
submit BPS’s requested instruction regarding whether Mark Thompson [was] acting in
[the] course and scope of his employment.” See G & H Towing Co. v. Magee, 347
S.W.3d 293, 296 (Tex. 2011) (“Generally, a master is vicariously liable for the torts of its
servants committed in the course and scope of their employment.”). The trial court
submitted questions, instructions, and definitions pertaining to the issue of agency (i.e.,
whether Thompson had authority to act on behalf of BPS). See Gaines v. Kelly, 235
S.W.3d 179, 182 (Tex. 2007) (“An agent’s authority to act on behalf of a principal
depends on some communication by the principal either to the agent (actual or express
authority) or to the third party (apparent or implied authority).”). According to BPS,
“[a]sking whether Thompson had actual or apparent authority to act on behalf of BPS
24
begs the question.” However, BPS does not explain why that is so. See TEX. R. APP. P.
38.1(i). Instead, it merely asserts without elaboration that “[t]he disputed fact [issue]
was whether Thompson was acting outside the course and scope of his employment or
was acting as an independent contractor . . . .” By failing to provide a substantive
analysis in support of this contention, BPS has waived the error, if any, in the trial
court’s refusal to submit its requested instruction. See MumboJumbo, 350 S.W.3d at
722. Accordingly, the issue is overruled.
XIX. ISSUE NINETEEN
In its nineteenth issue, BPS contends that the trial court erred in “[f]ailing to
submit BPS’s requested instruction on whether Thompson was acting as an
independent contractor.” See Baptist Mem. Hosp. Sys. v. Sampson, 969 S.W.2d 945,
947 (Tex. 1998) (“[An] individual or entity that hires [an] independent contractor is
generally not vicariously liable for the tort or negligence of that person.”). As set forth
above, the trial court submitted questions, instructions, and definitions pertaining to the
issue of agency (i.e., whether Thompson had authority to act on behalf of BPS). See
Gaines, 235 S.W.3d at 182. According to BPS, “[a]sking whether Thompson had actual
or apparent authority to act on behalf of BPS begs the question.” However, BPS does
not explain why that is so. See TEX. R. APP. P. 38.1(i). Instead, it merely asserts
without elaboration that “[t]he disputed fact [issue] was whether Thompson was acting
outside the course and scope of his employment or was acting as an independent
contractor . . . .” By failing to provide a substantive analysis in support of this
contention, BPS has waived the error, if any, in the trial court’s refusal to submit its
25
requested instruction. See MumboJumbo, 350 S.W.3d at 722. Accordingly, the issue is
overruled.
XX. ISSUE TWENTY
In its twentieth issue, BPS contends that the trial court erred in “[f]ailing to submit
BPS’s requested definition of ‘agency.’” We have reviewed BPS’s brief and have found
no argument in support of this issue. See TEX. R. APP. P. 38.1(i). Accordingly, the issue
has been inadequately briefed, and the error, if any, is waived. See Fredonia State
Bank, 881 S.W.2d at 284.
BPS’s twentieth issue is overruled.
XXI. ISSUE TWENTY-ONE
In its twenty-first issue, BPS contends that the trial court erred in “[f]ailing to
submit BPS’s properly worded question and accompanying instruction on breach of
contract and whether the parties reached an agreement.” In support of this contention,
BPS offers the following statement:
Court erred in improperly submitting Question 4 and denying BPS’s
question whether Marlin breached the agreement by failing to distribute all
lease transaction funding to BPS and refusing to submit an accompanying
instruction and definition regarding the bargain of the parties, course of
performance, course of dealing or usage of trade.
The foregoing is a restatement of the issue presented, not a clear and concise
argument for the contention made, with appropriate citations to authority. See TEX. R.
APP. P. 38.1(i). The statement is deficient as an argument because it fails to analyze
why it was error for the trial court to submit question 4 and deny BPS’s question,
instruction, and definition. See Crawford, 171 S.W.3d at 338 (“[The parties] must put
forth some specific argument and analysis showing that the record and the law support[]
26
their contentions.”). Accordingly, the issue has been inadequately briefed, and the
error, if any, is waived. See Fredonia State Bank, 881 S.W.2d at 284.
BPS’s twenty-first issue is overruled.
XXII. ISSUE TWENTY-TWO
In its twenty-second issue, BPS contends that the trial court erred in “[f]ailing to
submit BPS’s requested instruction to accompany question 22 regarding Marlin’s duty to
exercise ordinary care to protect its interests.”
A. Jury Charge and Verdict
In relevant part, the jury charge provided as follows:
QUESTION NUMBER 22
Did [BPS] . . . commit fraud against Marlin . . . ?
Fraud occurs when –
a. a party fails to disclose a material fact within the knowledge of
that party;
b. the party knows that the other party is ignorant of the fact and
does not have an equal opportunity to discover the truth;
c. the party intends to induce the other party to take some action
by failing to disclose the fact; and
d. the other party suffers injury as a result of acting without
knowledge of the undisclosed fact.
....
Answer “Yes” or “No.”
Answer: Yes
27
B. Discussion
As set forth above, “[t]he trial court has considerable discretion to determine
proper jury instructions . . . .” Thota, 366 S.W.3d at 687. On appeal, BPS asserts that
the trial court “erred in failing to instruct the jury in question[] . . . 22 regarding Marlin’s
duty to exercise ordinary care to protect its interests regarding BPS’s alleged . . . fraud.”
However, BPS has failed to provide a clear and concise argument in support of this
contention. See TEX. R. APP. P. 38.1(i). BPS has failed to provide a substantive
analysis to establish that the trial court had no discretion to refuse the requested
instruction. See MumboJumbo, 350 S.W.3d at 722; see also Thota, 366 S.W.3d at 687.
Accordingly, the issue has been inadequately briefed, and the error, if any, is waived.
See Fredonia State Bank, 881 S.W.2d at 284.
BPS’s twenty-second issue is overruled.
XXIII. ISSUE TWENTY-THREE
In its twenty-third issue, BPS argues that the trial court erred in “[f]ailing to submit
BPS’s requested definition of colorable.” We have reviewed BPS’s brief and have found
no argument in support of this issue. See TEX. R. APP. P. 38.1(i). Accordingly, the issue
has been inadequately briefed, and the error, if any, is waived. See Fredonia State
Bank, 881 S.W.2d at 284.
BPS’s twenty-third issue is overruled.
XXIV. ISSUE TWENTY-FOUR
In its twenty-fourth issue, BPS contends that the trial court erred in “[f]ailing to
submit BPS’s requested damage questions.” We have reviewed BPS’s brief and have
found no argument in support of this issue except what we have previously addressed
28
in overruling BPS’s fourteenth issue. See TEX. R. APP. P. 38.1(i). Accordingly, to the
extent that this issue is not inadequately briefed, we overrule it for the reasons stated in
connection with issue fourteen. See TEX. R. APP. P. 47.4. In all other respects, the
issue is inadequately briefed, and the error, if any, is waived. See Fredonia State Bank,
881 S.W.2d at 284.
BPS’s twenty-fourth issue is overruled.
XXV. ISSUE TWENTY-FIVE
In its twenty-fifth issue, BPS contends that the trial court erred in “[f]ailing to
submit BPS’s requested damage question to accompany Question 8.b.” We have
reviewed BPS’s brief and have found no argument in support of this issue except what
we have previously addressed in overruling BPS’s fourteenth issue. See TEX. R. APP.
P. 38.1(i). Accordingly, to the extent that this issue is not inadequately briefed, we
overrule it for the reasons stated in connection with issue fourteen. See TEX. R. APP. P.
47.4. In all other respects, the issue is inadequately briefed, and the error, if any, is
waived. See Fredonia State Bank, 881 S.W.2d at 284.
BPS’s twenty-fifth issue is overruled.
XXVI. ISSUE TWENTY-SIX
In its twenty-sixth issue, BPS contends that the trial court erred in “[f]ailing to
submit BPS’s requested questions defining false, misleading or deceptive acts or
practices under the D.T.P.A.” In support of this issue, BPS asserts that “[t]he eleven
additional requested submissions for false, misleading and deceptive acts under the
D.T.P.A. were improperly denied.” The issue is inadequately briefed because BPS has
failed to provide a clear and concise argument or substantive analysis for why it was
29
improper for the trial court to deny each of the requested submissions, which BPS
references collectively, but fails to identify or discuss individually. See TEX. R. APP. P.
38.1(i); MumboJumbo, 350 S.W.3d at 722. Accordingly, the error, if any, is waived.
See Fredonia State Bank, 881 S.W.2d at 284.
BPS’s twenty-sixth issue is overruled.
XXVII. ISSUE TWENTY-SEVEN
In its twenty-seventh issue, BPS contends that the trial court “erred in denying
[BPS] . . . judgment against Marlin . . . for sanctions and attorney fees in the frivolous
claim Marlin asserted under the Texas Deceptive Trade Practices Act.”
A. Applicable Law
In relevant part, the DTPA provides as follows: “On a finding by the court that an
action under this section was groundless in fact or law or brought in bad faith, or
brought for the purpose of harassment, the court shall award to the defendant
reasonable and necessary attorneys’ fees and court costs.” TEX. BUS. & COM. CODE
ANN. § 17.50(c) (West 2011). “The Texas Supreme Court has held the term
‘groundless’ has the same meaning in the DTPA and Rule 13, i.e., ‘no basis in law or
fact and not warranted by good faith argument for the extension, modification, or
reversal of existing law.’” Mosk v. Thomas, 183 S.W.3d 691, 695 (Tex. App.—Fort
Worth 2003, no pet.) (quoting Donwerth v. Preston II Chrysler-Dodge, Inc., 775 S.W.2d
634, 637 (Tex. 1989)). “The standard for determining whether a suit is groundless
considers whether the totality of the tendered evidence demonstrates an arguable basis
in fact and law for the consumer’s claim.” Id. at 695–96 (quotations omitted).
30
B. Standard of Review
“The court, not the factfinder, must determine the existence of groundlessness,
bad faith and harassment under section 17.50(c).” Donwerth, 775 S.W.2d at 637.
“Appellate review of such trial court determinations is a question of law under an abuse
of discretion standard.” Id. at 637 n.3. “The test for abuse of discretion is not whether,
in the opinion of the reviewing court, the facts present an appropriate case for the trial
court’s action.” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.
1985). “Rather, it is a question of whether the court acted without reference to any
guiding rules and principles.” Id. at 241–42. “Another way of stating the test is whether
the act was arbitrary or unreasonable.” Id. at 242. “The mere fact that a trial judge may
decide a matter within his discretionary authority in a different manner than an appellate
judge in a similar circumstance does not demonstrate that an abuse of discretion has
occurred.” Id.
C. Discussion
BPS argues that Marlin’s DTPA claim was groundless because Marlin has assets
of $25 million or more and therefore is not a “consumer” within the meaning of the
DTPA and not authorized to bring a claim for violation of the DTPA. In relevant part, the
DTPA provides as follows:
“Consumer” means an individual, partnership, corporation, this state, or a
subdivision or agency of this state who seeks or acquires by purchase or
lease, any goods or services, except that the term does not include a
business consumer that has assets of $25 million or more, or that is
owned or controlled by a corporation or entity with assets of $25 million or
more.
TEX. BUS. & COM. CODE ANN. § 17.45(4) (West 2011). “Whether a plaintiff is a consumer
under the DTPA is a question of law to be determined by the trial court from the
31
evidence.” Ford v. City State Bank of Palacios, 44 S.W.3d 121, 133 (Tex. App.—
Corpus Christi 2001, no pet.). “However, the underlying factual basis giving rise to
consumer standing may present factual issues for the jury.” Id.
In its motion for entry of partial judgment, BPS stated that Marlin’s DTPA claims
were based on roughly 200 lease transactions between 1999 and 2006, approximately
23 of which occurred in 1999, when Marlin qualified as a consumer because it did not
have assets of $25 million or more. For its part, Marlin concedes that it was not a
consumer from 2001 through 2006, or in 2009, when it filed its counterclaim, but it
maintains that it was a consumer in 1999 and 2000 because in those years, it did not
have assets of $25 million or more. Thus, the parties disagree only with respect to
Marlin’s status in the year 2000.
The record is silent regarding the basis for the trial court’s ruling. In its motion,
BPS argued that there was only one DTPA claim for all 200 transactions. Given that
there was no dispute that Marlin was a consumer with respect to at least 23 of the 200
transactions, the trial court was within its discretion in finding that the claim was not
groundless, as alleged by BPS, because there was at least some arguable basis in law
and fact for the claim, and specifically, for Marlin’s assertion of its status as a consumer
based on those 23 transactions that took place when it did not have assets of $25
million or more. See Donwerth, 775 S.W.2d at 637. Accordingly, the trial court did not
abuse its discretion in denying the request for sanctions.
BPS’s twenty-seventh issue is overruled.
32
XXVIII. ISSUE TWENTY-EIGHT
In its twenty-eighth issue, BPS contends that the trial “court erred and abused its
discretion in the conduct of the pretrial conference because BPS was prejudiced by [the]
court’s [sic] requiring BPS to identify its exhibits and present its evidence per [the]
court’s instructions and then failed to require Marlin[’s] . . . counsel to identify the
exhibits it intended to present in the trial or identify its witnesses.”
A. Proceedings
On Thursday, November 4, 2010, the trial court held a pre-trial conference for the
purpose of pre-admitting the parties’ exhibits before trial. Although the trial court was
able to go through BPS’s exhibits and pre-admit them, BPS complained that Marlin had
not provided an exhibit list, which led to the following exchange:
[Counsel for BPS]: As far as I know, this is the first time we’ve gotten the
exhibits list from the defendants . . . .
[Counsel for Marlin]: And, Your Honor, that actually is true . . . .
The Court: All right. I’m - -
[Counsel for BPS]: The thing is, is that, we’re now Thursday. We’ve got,
I don’t know how many, documents here, but it’s at
least an inch thick, of the defendant’s exhibit list.
There’s no way we can be prepared - -
The Court: Let’s just see how far we get.
....
[Counsel for BPS]: Well, Your Honor, I object. This was all supposed to
have been done by October 8th. And we still don’t
have them, and time’s flying, and - -
The Court: I understand that.
[Counsel for BPS]: - - we’ve got less than three days.
33
The Court: I understand.
[Counsel for BPS]: And we just can’t humanly do that and properly
object.
The Court: Okay. Based upon the description, I’m going to see
how far we can get on the defendant’s exhibit list.
....
[Counsel for BPS]: Well, do I get to object, or are we just gonna admit all
their exhibits? I mean, I would like to object. First, I
want clarification, and I would like to object to the
exhibit, for the record.
The Court: You may do so.
[Counsel for BPS]: We would object to the, document Trial Exhibit No. 1,
[because] . . . it is irrelevant . . . .
The Court: Overruled. Admitted.
....
[Counsel for BPS]: Your Honor, I really must object. I brought my
exhibits. I brought my documents. I gave a disk.
And I’m sitting here having to rely upon a description
by defense counsel, without being provided any
documents.
The Court: Pull each document.
....
[Counsel for BPS]: Okay. Now, so the document I’ve just been handed
has no defense exhibit on it. All it has on it is - -
The Court: Because I didn’t instruct them, yet, to premark. That
comes after I’ve admitted.
....
[Counsel for BPS]: If we’re going to talk about preadmitting these
documents, or are we gonna wait to trial to do their
exhibits?
34
The Court: We’re going to do this, until all these documents have
been reviewed, . . . even if we have to come back
tomorrow. If you’re gonna take three minutes - -
[Counsel for BPS]: When are we gonna get ready?
The Court: I just timed that first objection. It took two minutes,
okay? If you want to do a two minute objection to
each one, I’m here to hear it.
[Counsel for BPS]: Well, probably, if I would have gotten these
documents in advance, and I had gotten an exhibit list
that the - -
I’m gonna announce surprise. I don’t think we can be
required to be treated like schoolboys when we’ve got
something less than an hour ago and we’ve been
dealing with the plaintiff’s objections. We haven’t had
a chance to look at this thing, at all.
It’s 167 pages.
....
We should have gotten it by October 8th [sic] is when
we were entitled to receive this information. And it’s
168 pages. It contains Exhibit Nos. 1 through 2026
and - -
....
The Court: Okay. This is what we’re going to [do]. We’re gonna
do this the old-fashioned way. We’re going to agitate
this jury, and we’re gonna go through all these
objections during the trial. I have set aside two days,
which I have [been] informed was not enough for
Daubert challenges; and then I – because I had
Daubert challenges and then we were going to exhibit
challenges, etc. The bottom line is, how many days
do you want for pretrial?
[Counsel for BPS]: Your Honor, if we had gotten things timely.
The Court: Okay. That’s it.
35
....
[Counsel for BPS]: They’ve got their pants down and we’re getting
spanked and that’s wrong.
The Court: I’m sorry. I am so tired of both sides whining in this
case.
[Counsel for BPS]: We’re not whining. We’re not ready because of them.
The Court: Okay.
....
You may make your objections at the time of trial.
This thing is ready. We’re going to trial on Monday . .
. . [A]nd we’ll make all the objections that we have
not finished today at - - right in front of the jury.
....
[Counsel for BPS]: Your Honor, we would like some clarification as to
when we can have copies, because the Court has
ordered the documents . . . .
The Court: Well, you know, when you do it at the time of trial, the
objections at time of trial, you get them at trial.
[Counsel for BPS]: This is a wholly abuse of the discretion. They have
given - - we have given them every one of our
documents, we have preadmitted, we’ve given to
them on disk - -
The Court: See you-all Monday at 9 - - well - -
....
[Counsel for BPS]: No. I’m announcing not ready, right not, and I have
not been ready because of the . . . failure of defense
counsel to cooperate and follow the Court’s orders.
....
The Court: All right. When you are ready to allow me to talk,
come get me.
36
....
[Counsel for BPS]: Is the Court willing to have - - to order that they give
us the exhibits, at least?
....
The Court: Give them the exhibits.
....
I’m ordering you to deliver a copy of all the exhibits
that you intend to offer, whether - - whether you offer
them or not. Because I know you’re not gonna offer
everything on those lists, but provide them a copy of
everything on that exhibit list that you intend [to offer] .
...
[Counsel for Marlin]: I’ll be happy to, Your Honor.
The Court: All right. See you tomorrow . . . .
The next day, Friday, November 5, 2010, the trial court held another pre-trial
hearing, and BPS moved for a continuance of trial. The following exchange occurred:
[Counsel for BPS]: [I]t is plaintiff’s contention that the defendants have
been dilatory in the manner that the pretrial in this
case has taken. It has put plaintiff in the position of
now having all their exhibits premarked, preadmitted .
. . and put in the position now of when exhibits come
in at trial by the defendant, is going to have to go
through the process of presenting the exhibit, having
to make objections before the jury that will greatly
extend this case . . . .
Plaintiff believes they’re being unduly prejudiced by
being denied a pretrial conference with the plaintiff
being the one punished for the defendant’s dilatory
conduct, and so, we’re only requesting a continuance
so to allow this Court to do full pretrial, struggle with
these issues with the exhibits, and allow this case to
proceed in a judicial and efficient manner.
....
37
We believe . . . that putting the parties to a trial where
one party whose been denied the benefit of a pretrial
conference is unfair, it prejudices our case, it
prejudices plaintiff’s case, and puts the plaintiff in the
position of allowing the defendants to really control
the time that this case is now going to be required to
be tried . . . .
The Court: All right. The motion for continuance is denied.
I don’t know if you are aware of this, but this is our
sixth jury trial setting in this case, our sixth.
....
It is our sixth trial setting and four years in litigation . .
. and the bottom line is, it’s just time to saddle up and
go, okay?
With regards to the exhibits, I received three
amended exhibits on your part . . . but I will say this,
the plaintiffs have been well prepared with regards to
the requests of witness list, challenges, or whatever.
With regards to the defendants, I do not find that they
have been well prepared with regards to their exhibits,
and it has worked a difficulty. And yesterday - - what
is - - the record’s gonna speak for itself about the
frustrations and the allegations made in yesterday’s
court, to the point that I’m saying, “Okay, that’s it,
we’re gonna go.”
Now in my opinion, . . . the time - - who is going to be
at an expense for time are the defendants, because I
told you, I’m going to give them the exact amount of
hours that I give the plaintiffs. And they’re going to
have to go to a step-by-step procedure eating into
their time. Yours is already gonna be premarked and
admitted. You’re gonna look real good in front of the
jury, and it’s not gonna take any time to get your
exhibits in because they’re already before the jury.
So, the disadvantage as to what happened yesterday
- - because you-all know these documents, you have
lived with these documents, you probably have taken
them to bed with you thinking about them at night.
38
The bottom line is, is there’s no surprise in this case
with regards to the documents. There’s really no
surprise to the Court with regards to the documents.
But the bottom line is, it’s the disadvantage, their lack
of preparation, or their lack of whatever happened in
their office, I don’t know. They’re eating up their time
to get their documents in. And when you make an
objection, it’s gonna be on their time, okay? So that’s
going to be to their disadvantage, not yours.
....
[Counsel for BPS]: And if I may clarify, Your Honor, I realize that the
Court says that we all know what the exhibits are and
we’ve lived with them, but by them not having to
identify what their exhibits are puts them at an
advantage where they know what they’re gonna do.
Now they know what I’m gonna do, but I don’t know
what they’re gonna do and it’s the whole idea the
pretrial and the pre-marking of exhibits and its puts
the advantage in their - -
The Court: Have you received the hard copy of the exhibits?
[Counsel for BPS]: No, I haven’t received anything.
The Court: I will consider that motion [to strike Marlin’s exhibits]
on Monday morning at 9:00 if they’re not delivered to
you before that time period. I want them delivered by
5:00 p.m. today.
....
[Counsel for BPS]: I can’t do it all this weekend.
The Court: Okay. I think you understand that I will reconsider
your motion if you do not have all the documents
delivered to you today.
[Counsel for BPS]: And I want to comment also. I don’t think it’s going to
make us look good with the jury. I think if we have to
continuously object and ask them, “Well, where did
you get this? Where is this,” I mean, to question
authentication, we’re gonna look like we got egg on
our face like we didn’t get prepared. Hiding the ball I
thought was over in discovery.
39
The Court: I don’t think this is discovery. The - - it is to exchange
the documents.
[Counsel for BPS]: Well, then, the discovery is worthless if we can’t get it
organized to - -
The Court: That’s the order of the Court. We’ll meet ready to go
pick the jury on Monday.
[Counsel for BPS]: Note our exception, Your Honor, because I think [sic]
is gone awry from the beginning.
The Court: I understand.
Finally, on the morning of Monday, November 8, 2010, the day of trial, a pre-trial
hearing was held during which the following exchange took place:
[Counsel for BPS]: Your Honor, I’d like the record to reflect at 4:45 Friday
night, I think it was commonly referred to as a
document dump. First box of Marlin’s proposed
exhibits in this case weighed 37 pounds, jammed
back full of papers, probably. The second box
delivered to us the Marlin documents weighed 38
pounds, totally jam packed full of papers, a total of
four reams, 10 reams to a paper, 500 pages in a
ream. Both these boxes were dumped on us; no
division; no separation, just plain old documents
packed in a box so tight you can’t open it . . . .
And we would submit to the Court this is
unreasonable, it is unfair to the plaintiff. It puts the
plaintiff at an extreme disadvantage, and there’s
absolutely no reference to where these documents
come from. Most of these documents are not
authenticated, and that’s gonna have to go through
the process before the jury. We would submit to the
Court that, again, that this matter be continued so we
can have a full pretrial in this case. The defendants
have had the advantage of having our portion of the
case pretried, but the plaintiff has not had the
advantage of having the defendant’s portion of the
case pretried as pursuant to the Court’s docket order,
and the intent in spirit of the Texas Rules of Civil
Procedure.
40
Secondly, we - - and that is our first - - and in the
alternative, if the Court does not continue this case,
then we move that the Court strike the Defendant’s
Exhibits 1 through 2026. There may be more, I don’t
know, but that’s what happened . . . .
[Counsel for Marlin]: Your Honor, those were winnowed down, although I
believe [counsel for BPS] . . . represented last there
were 16 boxes. There were fewer than 16 - - there
were five. That was winnowed down to two. I was
told to get them to her by 5:00. The e-mails that we
have show that they were sent before 5 . . . .
The Court: Are those exhibits numbered?
[Counsel for Marlin]: Yes, they are, Your Honor.
Furthermore, the exhibit list identified Bate stamp
numbers, deposition exhibit numbers. The only
documents that are not identified are BPS documents
that were produced without Bate stamp number, and I
had no way to identify them . . . . So . . . she does
have that in the exhibit list, Your Honor. I have
absolutely no problem trying to work with her and get
her the exhibits on a daily basis, it will change,
obviously, on the testimony, but I have no problem
doing that, Your Honor.
The Court: All right. Motions denied.
....
[Counsel for BPS]: The man has waited six years to have his day in
court, now this happens, so it’s going to make it for - -
The Court: I will not make - - I’m not making that conclusion.
[Counsel for BPS]: That’s what they’re gonna conclude when everything
of ours comes without objection because they’ve
been preadmitted, but we have to object to
everything.
The Court: We may be able to handle that before we go to trial in
the morning, and in the evenings so the jury does not
see anything.
41
[Counsel for BPS]: Well - -
The Court: I’m prepared. I’ve cancelled everything after work so
that if we have to stay to make this a[] smooth trial,
we will.
B. Discussion
On appeal, BPS contends that it “was prejudiced in presenting its case because
the [trial] court gave an unfair advantage to Marlin by forcing BPS to show its hand while
allowing Marlin to withhold its exhibits until offered at trial.” Quoting a decision by the
First Court of Appeals in Houston pertaining to the granting of a new trial, BPS further
contends, “Parties are entitled to rely on the court’s pretrial order.” Hull v. S. Coast
Catamarans, L.P., 365 S.W.3d 35, 43 (Tex. App.—Houston [1st Dist.] 2011, pet.
denied). Because the Houston case dealt with the granting of a new trial, we conclude
that its holding is inapposite to the issue presented by BPS. See id.
Furthermore, we reject BPS’s contention that the trial court allowed Marlin to
withhold its exhibits until the time of trial. As set forth above, the trial court held a pre-
trial hearing on November 4, 2010, during which Marlin was ordered to produce a hard
copy of each exhibit to counsel for BPS as they were being offered for pre-admission
into evidence. Thus, at that time, counsel for BPS had an opportunity to see each
exhibit that Marlin intended to offer. When BPS continued to object to the pre-trial
proceeding on the basis that it had not received copies of the documents in advance of
the hearing as required by the docket control order, the trial court ordered Marlin to
produce the documents by the following day. The record further reflects that Marlin did,
in fact, produce its marked exhibits to BPS on the afternoon of November 5, 2010, as
42
ordered by the trial court. Accordingly, we conclude that there is no merit to BPS’s
contention that the trial court allowed “Marlin to withhold its exhibits until offered at trial.”
BPS’s twenty-eighth issue is overruled.
XXIX. ISSUE TWENTY-NINE
In its twenty-ninth issue, BPS contends that the trial court “erred and abused its
discretion by not following [the] court’s own docket control order by requiring Marlin to
submit and pre-mark its trial exhibits and submit to [the] court and BPS counsel in an
organized, usable and accessible format.” We note that BPS has not provided an
argument in support of this issue that is separate from its argument in support of its
twenty-eighth issue. See TEX. R. APP. P. 38.1(i).
Regardless, our review of the record shows that the trial court enforced its docket
control order by requiring counsel for Marlin to produce its pre-marked exhibits to BPS
by 5:00 p.m. on Friday, November 5, 2010, which Marlin did. In addition, the trial court
noted that Marlin’s failure to comply with the docket control order had “worked a
difficulty,” which the trial court addressed by ordering that Marlin would not be allowed
to have its exhibits pre-admitted before trial. BPS has not demonstrated that the trial
court abused its discretion by taking this action in response to Marlin’s failure to comply
with the court’s docket control order. Accordingly, the issue is overruled.
XXX. ISSUE THIRTY
In its thirtieth issue, BPS contends that the trial court “erred and abused its
discretion by denying [BPS’s] Motions for Continuance after denying BPS a pre-trial
hearing.” We have reviewed BPS’s brief and have found no argument in support of this
issue except the argument offered in support of BPS’s twenty-eighth and twenty-ninth
43
issues. See TEX. R. APP. P. 38.1(i). BPS has not provided any citations to authority
pertaining to continuances and has failed to provide a substantive analysis for how the
law applies to the facts of the case with respect to this issue. See MumboJumbo, 350
S.W.3d at 722. Accordingly, the issue has been inadequately briefed, and the error, if
any, is waived. See Fredonia State Bank, 881 S.W.2d at 284.
BPS’s thirtieth issue is overruled.
XXXI. ISSUE THIRTY-ONE
In its thirty-first issue, BPS contends that the trial court “erred and abused its
discretion in refusing to deny admission of documents or grant BPS’s motion for
continuance after Marlin . . . did a ‘document dump’ on BPS’s counsel only four days
prior to beginning the trial.” We have reviewed BPS’s brief and have found no argument
in support of this issue except the argument offered in support of BPS’s twenty-eighth
and twenty-ninth issues. See TEX. R. APP. P. 38.1(i). BPS has not provided any
citations to authority pertaining to trial sanctions or continuances and has failed to
provide a substantive analysis for how the law applies to the facts of the case with
respect to this issue. See MumboJumbo, 350 S.W.3d at 722. Accordingly, the issue
has been inadequately briefed, and the error, if any, is waived. See Fredonia State
Bank, 881 S.W.2d at 284.
BPS’s thirty-first issue is overruled.
XXXII. ISSUE THIRTY-TWO
In its thirty-second issue, BPS contends that the trial court erred in excluding the
testimony of J.F. “Chip” Morrow on the basis that Morrow was not qualified to give
expert testimony. According to BPS, Morrow would have testified that “Thompson was
44
a sub-broker, corroborated by Marlin paying Thompson directly and circumventing BPS
and from Marlin’s policies defining vendors and brokers.” BPS also contends that, in
addition, Morrow would have also “opined [that] Marlin lacked authority and failed to
follow its policies and business practices in diverting funds and funding from third
parties that resulted in fraudulent leases.”
A. Proceedings
The trial court ruled as follows:
With regards to Chip Morrow, I am going to sustain the motion to strike the
testimony of Chip Morrow. I’m striking him with regards to qualifications
as—and as to knowledge, not having specialized knowledge in the
particular area that could assist the jury, and I don’t have to go any further.
....
He may be an expert in banking, but I do not find him to be an expert in
this particular industry and I am striking him secondly as to knowledge
with regards to whether what he is saying is—in my opinion what it was, it
was a summary of factual contentions that other witnesses and/or
documents can establish before the jury in determining what weight to
give to it, and also I am striking him on reliability.
So he will not be testifying.
B. Discussion
On appeal, BPS has challenged the trial court’s ruling with respect to Morrow’s
qualifications as an expert, but BPS has not challenged the trial court’s ruling with
respect to lack of reliability. See E.I. du Pont de Nemours & Co. v. Robinson, 923
S.W.2d 549, 558 (Tex. 1995) (“[T]he trial court’s role is to make the initial determination
whether the expert’s opinion is relevant and whether the methods and research upon
which it is based are reliable.”). The trial court’s ruling with regard to reliability is an
independent basis for excluding Morrow’s testimony. See id. at 550 (“Rule 702 requires
45
expert testimony to be relevant and reliable.”). BPS has not asserted, argued, or
established that the trial court abused its discretion in striking Morrow’s testimony based
on the lack of reliability. See id. (“Because the proponent of the testimony in this case
failed to establish that the proffered testimony was scientifically reliable, the trial court
did not abuse its discretion by excluding the expert witness.”). Accordingly, BPS has
not challenged all possible grounds for the trial court’s ruling, and the error, if any, is
waived. See Collin County v. Hixon Family P’ship, 365 S.W.3d 860, 877 (Tex. App.—
Dallas 2012, pet. denied) (“When an appellee urges several objections to a particular
piece of evidence and, on appeal, the appellant complains of exclusion of the evidence
on only one of those bases, the appellant has waived that issue for appeal because he
has not challenged all possible grounds for the trial court’s ruling that sustained the
objection.”).
BPS’s thirty-second issue is overruled.
XXXIII. ISSUE THIRTY-THREE
In its thirty-third issue, BPS contends that the trial court erred in excluding the
testimony of graphologist Carol Ritter. The trial court’s ruling was “based on [lack of]
qualifications and on [lack of] reliability.” According to BPS, “Ritter qualified as an
expert with her years of practice experience, self-training and undergoing the rigors of
self-assessment, and her use of the methods adopted as standards and guidelines.”
This issue is inadequately briefed, particularly with respect to the trial court’s ruling on
the lack of reliability, for which BPS has failed to provide a clear and concise argument
with appropriate citations to authorities and to the record. See TEX. R. APP. P. 38.1(i).
46
Accordingly, we conclude that BPS has not demonstrated that the trial court abused its
discretion in striking Ritter’s testimony based on lack of reliability.
BPS’s thirty-third issue is overruled.
XXXIV. ISSUE THIRTY-FOUR
In its thirty-fourth issue, BPS contends that the trial court “erred in limiting the
testimony of . . . [BPS’s] expert witness, Roger Saenz, a certified public accountant and
certified fraud examiner, and imposing restrictive vocabulary that Mr. Saenz was
allowed to use as euphemism during his testimony, and disallowing words that are
commonly used in courts and accounting audits and investigations where fraud or theft
is suspected or proven.” In support of this contention, BPS argues the following:
Court erred and abused its discretion in limiting qualified expert Saenz’s
vocabulary during his testimony and forbidding BPS’s counsel to elicit
Saenz’s opinions “. . . that, in effect, put him into a situation where he’s
asked to draw a legal conclusion based upon the questions that are gonna
be submitted to the jury.” Disallowing Saenz to use words that are
elements of the claims or necessary in accurately describing conduct was
unreasonable and arbitrary with no purpose other than to confuse the jury
rather than help them understand the evidence.
We construe the foregoing as a challenge to the trial court’s partial exclusion of Saenz’s
testimony.
A. Applicable Law
“The exclusion of evidence is reversible error if the complaining party shows that
the trial court committed error that probably caused the rendition of an improper
judgment.” Waffle House, Inc. v. Williams, 313 S.W.3d 796, 812 (Tex. 2010).
“Typically, a successful challenge to a trial court’s evidentiary rulings requires the
complaining party to demonstrate that the judgment turns on the particular evidence
47
excluded or admitted.” Dallas County v. Crestview Corners Car Wash, 370 S.W.3d 25,
35 (Tex. App.—Dallas 2012, pet. denied).
B. Discussion
Due to the inadequacy of BPS’s briefing, it is unclear what testimony by Saenz
was actually excluded. See TEX. R. APP. P. 38.1(i). On this record, BPS has not
demonstrated an abuse of discretion or that the exclusion of the testimony probably
caused the rendition of an improper judgment. See TEX. R. APP. P. 44.1(a).
Furthermore, having reviewed the entire record, we cannot conclude that the trial court’s
judgment turned on Saenz’s excluded testimony. See Castillo v. Gulf Coast Livestock
Mkt., L.L.C., 392 S.W.3d 299, 308 (Tex. App.—San Antonio 2012, no pet.) (“[T]o
successfully challenge an evidentiary ruling on appeal, an appellant must show that the
judgment turns on the particular excluded evidence.”).
BPS’s thirty-fourth issue is overruled.
XXXV. ISSUE THIRTY-FIVE
In its thirty-fifth issue, BPS contends as follows:
Court erred in entering judgment in favor of Marlin . . . in the amount of
$38,203.77 ($35,373.39 + $2,829.88 pre-judgment interest) plus post
judgment interest because:
a. Marlin failed to prove the necessary elements to recover for
damages for breach of contract.
b. Marlin’s proof of damages are not recoverable under any theory
under Texas law.
c. Marlin did not suffer any damages.
The only element of Marlin’s breach of contract claim that BPS has challenged in
its brief is damages. See Wright v. Christian & Smith, 950 S.W.2d 411, 412 (Tex.
48
App.—Houston [1st Dist.] 1997, no writ) (“The elements of a breach of contract claim
are: (1) the existence of a valid contract; (2) performance or tendered performance by
the plaintiff; (3) breach of the contract by the defendant; and (4) damages to the plaintiff
resulting from that breach.”). Accordingly, we confine our analysis to the damages
award. See TEX. R. APP. P. 47.1.
A. Standard of Review
“When examining a legal-sufficiency challenge, we review the evidence in the
light most favorable to the challenged finding and indulge every reasonable inference
that would support it.” Bryan v. Gordon, 384 S.W.3d 908, 913 (Tex. App.—Houston
[14th Dist.] 2012, no pet.) (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.
2005)). “We credit favorable evidence if a reasonable fact finder could and disregard
contrary evidence unless a reasonable fact finder could not.” Id. “The evidence is
legally sufficient if it would enable a reasonable and fair-minded person to find the fact
under review.” Id. “The fact finder is the sole judge of witness credibility and the weight
to give their testimony.” Id. “[I]t is the court’s charge, not some other unidentified law,
that measures the sufficiency of the evidence.” Osterberg v. Peca, 12 S.W.3d 31, 33
(Tex. 2000); see also Barnes v. Mathis, 353 S.W.3d 760, 764 (Tex. 2011) (“[W]e must
measure the sufficiency of the evidence based on the jury charge.”).
B. Jury Charge and Verdict
In relevant part, the jury charge provided as follows:
QUESTION NUMBER 5
Did Business Product Supply fail to comply with its agreement, if
any, with Marlin Leasing Corporation?
....
49
Answer “Yes” or “No” as to each element:
a.) by failing to deliver the equipment that Business Product Supply
promised Marlin Leasing Corporation that it would deliver to customers?
Answer: Yes
b.) by taking possession of equipment that Marlin Leasing
Corporation had purchased?
Answer: No
The charge further provided that if the jury answered “Yes” to any part of question 5,
then the jury was to answer question 25, which provided as follows:
QUESTION NUMBER 25
What sum of money, if any, if paid now in cash, would fairly and
reasonably compensate Marlin Leasing Corporation for its damages, if
any, that resulted from the conduct of Business Product Supply?
Answer in dollars and cents for damages, if any.
a. The difference, if any, between the value agreed to for the equipment
purchased by Marlin Leasing Corporation and the value received in the
transaction.
Answer: $35,373.39
C. Discussion
At trial, there was evidence that Marlin contracted with BPS to purchase certain
equipment and that BPS breached the contract by providing equipment that was not as
represented by BPS in that it was either inferior or did not have all the qualities that BPS
represented and that were specified in the parties’ agreement. BPS argues that Marlin
cannot recover the benefit of the bargain because it subsequently leased the equipment
in question to its customers and therefore suffered no pecuniary loss. See St. Joseph
Hosp. v. Wolff, 94 S.W.3d 513, 531 (Tex. 2002) (“The ordinary meaning of ‘pecuniary’ is
50
of or pertaining to money.”) (quotations omitted). However, Marlin maintains, and the
evidence at trial showed, that BPS provided Marlin with equipment that was not as
represented by BPS in that it was either inferior or did not have all the qualities that BPS
represented and that were specified in the parties’ agreement. As a result, Marlin
realized a loss at the end of the lease term because it was unable to sell the equipment
at issue for the price it had anticipated based on its agreement with BPS. According to
Marlin, it was entitled to recover the difference in that value because it was the lost
benefit of the bargain. We agree.
“The goal in measuring damages for a breach-of-contract claim is to provide just
compensation [f]or any loss or damage actually sustained as a result of the breach.”
Parkway Dental Assocs., P.A. v. Ho & Huang Props., L.P., 391 S.W.3d 596, 607 (Tex.
App.—Houston [14th Dist.] 2012, no pet.). “The normal measure of damages in a
breach-of-contract case is the expectancy or benefit-of-the-bargain measure.” Id. “The
purpose of this measure of damages is to restore the injured party to the economic
position it would have occupied had the contract been performed.” Id.
In this case, the evidence at trial showed that if BPS had performed the contract
as agreed, Marlin would have received equipment that had a greater value than the
equipment actually delivered by BPS. The difference in value is the lost benefit of the
bargain, which Marlin was entitled to recover because it is the normal measure of
damages in a case involving breach of contract. See id. Therefore, the evidence was
legally sufficient to establish that Marlin sustained damages in the lost benefit of the
bargain. See City of Keller, 168 S.W.3d at 822. Furthermore, to the extent BPS
contends that the evidence is insufficient to support the jury’s finding regarding the
51
amount of damages, the issue has been inadequately briefed, and the error, if any, is
waived. See Fredonia State Bank, 881 S.W.2d at 284.
Accordingly, BPS’s thirty-fifth issue is overruled.
XXXVI. ISSUE THIRTY-SIX
In its thirty-sixth issue, BPS contends that, “[i]n the alternative, [the trial] court
cannot award damages to Marlin under theories of negligent misrepresentation because
Marlin[] failed in its proof and the elements of damages awarded to Marlin are not
recoverable under negligent misrepresentation.” There was only one damages award,
and Marlin elected to recover under breach of contract. Accordingly, because we have
we have already upheld the damages award based on Marlin’s breach of contract claim,
we do not reach this issue. See TEX. R. APP. P. 47.1.
BPS’s thirty-sixth issue is overruled.
XXXVII. ISSUE THIRTY-SEVEN
In its thirty-seventh issue, BPS contends that, “[i]n the alternative, the damages
cannot be awarded to Marlin under fraud because: a. Marlin did not counter-claim for
fraud against BPS. b. Marlin’s proof is not recoverable under a theory of fraud. c.
Fraud was not tried by waiver.” Again, we do not reach this issue because we have
already upheld the damages award based on Marlin’s breach of contract claim. See id.
BPS’s thirty-seventh issue is overruled.
XXXVIII. ISSUE THIRTY-EIGHT
In its thirty-eighth issue, BPS contends that, “[i]n the alternative, if [the] Court of
Appeals affirms the judgment, then [the trial] court erred by failing to apply [a] setoff and
credit due [to] BPS [in the amount] of $29,414.40, plus prejudgment and post judgment
52
interest for Marlin’s negligence found [by the jury].” According to BPS, the jury found
that BPS had suffered damages in the amount of $122,560.01, for which Marlin was
24% responsible. Based on the foregoing, BPS argues that it was entitled to an offset
in the amount of $29,414.40. We disagree.
In relevant part, the trial court’s judgment states the following:
The Court finds that recovery by Business Product Supply against Marlin
Leasing Corporation is barred by the jury’s finding in question 2 that Mark
Thompson was its agent so that the combined negligence of Business
Product Supply exceeds fifty percent (50%) and by the jury’s findings in
question 3 relating to when Business Product Supply should have known
of the actions about which it complains and the applicable statute of
limitations.
On appeal, BPS has not assigned error to the trial court’s ruling that BPS was
barred from recovering against Marlin because its percentage of responsibility was
“greater than 50 percent.” TEX. CIV. PRAC. & REM. CODE ANN. § 33.001 (West 2008); Pat
Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (“It is axiomatic that an appellate
court cannot reverse a trial court’s judgment absent properly assigned error.”).
Accordingly, BPS has not established that the trial court committed reversible error in
denying an offset because its percentage of responsibility was “greater than 50
percent.” See TEX. R. APP. P. 44.1(a).
BPS’s thirty-eighth issue is overruled.
XXXIX. ISSUE THIRTY-NINE
In its thirty-ninth issue, BPS contends that, “[i]n the alternative, if [the] Court of
Appeals affirms the judgment, then [the trial] court erred by failing to setoff and credit
BPS $21,931.57 for its attorney fees and taxable court costs for Marlin pursuing a
frivolous claim under the Texas Deceptive Trade Practices Act.” We have already
53
overruled BPS’s twenty-seventh issue in which BPS argued that the trial court
committed reversible error in denying BPS’s request for sanctions under the DTPA.
Accordingly, for the same reasons stated above, we conclude that BPS has not
demonstrated that the trial court committed reversible error by failing to apply a setoff
and credit for sanctions under the DTPA. See TEX. R. APP. P. 47.1.
BPS’s thirty-ninth issue is overruled.
XL. ISSUE FORTY
In its fortieth issue, BPS contends that the trial court erred in granting a directed
verdict on its negligent misrepresentation claim.8 BPS provides the following statement
in support of its contention that the trial court erred in granting a directed verdict on its
negligent misrepresentation claim:
Marlin knew BPS was ignorant it was paying Thompson points, using
lease funding to reduce its past due receivables, distributing to third
parties, and using Thompson’s services for Marlin related business, for
which Marlin induced BPS to take action that harmed BPS because BPS
acted without knowledge of undisclosed facts and did not have an equal
opportunity to discover.
In its brief, BPS has failed to (1) identify the grounds on which Marlin sought a
directed verdict, (2) identify the grounds, if any, on which BPS opposed Marlin’s motion
for a directed verdict, and (3) provide a concise argument with appropriate citations to
authorities and to the record to support its contention that the trial court erred in granting
a directed verdict. See TEX. R. APP. P. 38.1(i). BPS has failed to apply the controlling
law to the facts of the case in a substantive analysis that demonstrates that the trial
8
This issue was not included in BPS’s statement of the issues presented. See TEX. R. APP. P.
38.1(f). However, “[a]n appellant can preserve error in the body of their appellate brief, even if it is not
separately listed in the notice of appeal or presented as an issue in the brief.” Weeks Marine, Inc. v.
Garza, 371 S.W.3d 157, 162 (Tex. 2012). Therefore, we address the issue, and for the same reason, we
also address BPS’s forty-first through eightieth issues, even though those issues were also not included
in BPS’s statement of the issues presented. See id.
54
court erred in granting the directed verdict. See MumboJumbo, 350 S.W.3d at 722.
Accordingly, we conclude that the issue is inadequately briefed, and the error, if any, is
waived. See Fredonia State Bank, 881 S.W.2d at 284.
BPS’s fortieth issue is overruled.
XLI. ISSUE FORTY-ONE
In its forty-first issue, BPS contends that there is legally insufficient evidence to
support the jury’s finding to question 3a.
A. Jury Charge and Verdict
In relevant part, the jury charge provided as follows:
QUESTION NUMBER 3
By what date should Business Product Supply, in the exercise of
reasonable diligence, have discovered
a.) that Marlin Leasing Corporation was taking direction from
Mark Thompson in paying money to other leasing
companies or to itself to satisfy customer leases?
Answer with a date (month, date, year) in the blank below.
Answer: September 1, 2000
B. Discussion
As set forth above, question 3a pertained to Marlin’s affirmative defense based
on the applicable statute of limitations. See TEX. CIV. PRAC. & REM. CODE ANN. §
16.003(a) (West Supp. 2011). The jury returned a verdict in favor of Marlin on BPS’s
claims for gross negligence, breach of contract, and violations of the DTPA.
Furthermore, although the jury found that Marlin’s negligence proximately caused
damages to BPS, it found that Marlin was only 24% responsible for BPS’s damages.
The jury also found that the negligence of BPS and Thompson proximately caused
55
damages to BPS, and it found their proportionate responsibility to be 52% and 24%,
respectively. The jury also found that Thompson was BPS’s agent, and therefore, the
verdict, as a whole, was in favor of Marlin on all claims asserted by BPS. Accordingly,
the trial court entered a take-nothing judgment against BPS, stating that “recovery by . .
. [BPS] against Marlin . . . is barred by the jury’s finding in question 2 that Mark
Thompson was its agent so that the combined negligence of . . . [BPS] exceeds fifty
percent (50%).” Finally, as set forth above, BPS has not assigned error to the trial
court’s ruling that BPS was barred from recovering against Marlin because its
percentage of responsibility was “greater than 50 percent.” See TEX. CIV. PRAC. & REM.
CODE ANN. § 33.001.
In light of the foregoing, even if we were to conclude that the evidence is
insufficient to support the jury’s verdict on the statute of limitations defense, we would
be unable to conclude that the error probably caused the rendition of an improper
judgment. See TEX. R. APP. P. 44.1(a). Even without the statute of limitations defense,
the take-nothing judgment is correct based on the jury’s findings against BPS on its
claims for gross negligence, breach of contract, and violations of the DTPA. In addition,
the take-nothing judgment is correct as to the negligence claim based on the jury’s
findings against BPS on the issues of agency and proportionate responsibility, which
have not been challenged on appeal. Accordingly, the error with respect to the statute
of limitations defense, if any, is not reversible. See id.
BPS’s forty-first issue is overruled.
56
XLII. ISSUE FORTY-TWO
In its forty-second issue, BPS contends that the jury’s answer to question 3a is
“against the great weight of the evidence.” For the reasons stated above in connection
with BPS’s forty-first issue, we conclude that the error, if any, is not reversible. See id.
BPS’s forty-second issue is overruled.
XLIII. ISSUE FORTY-THREE
In its forty-third issue, BPS contends that the evidence is legally insufficient to
support the jury’s answer to question 3b.
A. Jury Charge and Verdict
In relevant part, the jury charge provided as follows:
QUESTION NUMBER 3
By what date should Business Product Supply, in the exercise of
reasonable diligence, have discovered
....
b.) that Marlin Leasing Corporation was paying points to Mark
Thompson?
Answer with a date (month, date, year) in the blank below:
Answer: October 11, 1999
B. Discussion
As set forth above, question 3b pertained to Marlin’s affirmative defense based
on the applicable statute of limitations. See TEX. CIV. PRAC. & REM. CODE ANN. §
16.003(a). BPS contends that the evidence is legally insufficient to support the jury’s
answer to question 3b; however, for the reasons stated above in connection with BPS’s
57
forty-first issue, we conclude that the error, if any, is not reversible. See TEX. R. APP. P.
44.1(a).
BPS’s forty-third issue is overruled.
XLIV. ISSUE FORTY-FOUR
In its forty-fourth issue, BPS contends that the jury’s answer to question 3b is
“against the great weight of the evidence.” For the reasons stated above in connection
with BPS’s forty-first issue, we conclude that the error, if any, is not reversible. See id.
BPS’s forty-fourth issue is overruled.
XLV. ISSUE FORTY-FIVE
In its forty-fifth issue, BPS contends that the trial court erred in instructing the jury
on “ratification” in question 5 because it did not name a specific person.
A. Jury Charge and Verdict
In relevant part, the jury charge provided as follows:
QUESTION NUMBER 5
Did Business Product Supply fail to comply with its agreement, if
any, with Marlin Leasing Corporation?
....
[BPS’s] . . . conduct includes the conduct of Mark Thompson if
Mark Thompson acted with . . . [BPS’s] authority or apparent authority.
A party’s conduct includes conduct of others that the party has
ratified. Ratification may be express or implied. Ratification occurred if . .
. [BPS], though it may have been unaware of unauthorized conduct taken
on its behalf at the time it occurred, retained the benefits of the transaction
involving the unauthorized conduct after it acquired full knowledge of the
unauthorized conduct. This results in ratification of the entire transaction.
....
Answer “Yes” or “No” as to each element:
58
a.) by failing to deliver the equipment that Business Product Supply
promised Marlin Leasing Corporation that it would deliver to customers?
Answer: Yes
b.) by taking possession of equipment that Marlin Leasing
Corporation had purchased?
Answer: No
B. Discussion
BPS states that it objected to the ratification instruction in question 5, but we
have reviewed the record and found no indication that BPS objected to the ratification
instruction in question 5 based on its failure to “name a specific person.” See Cruz, 364
S.W.3d at 829. Accordingly, the error, if any, was waived. See TEX. R. CIV. P. 272.
BPS’s forty-fifth issue is overruled.
XLVI. ISSUE FORTY-SIX
In its forty-sixth issue, BPS contends that the trial court erred in instructing the
jury on “ratification” in question 21 because it did not name a specific person.
A. Jury Charge and Verdict
In relevant part, the jury charge provided as follows:
QUESTION NUMBER 21
Did Business Product Supply make a negligent misrepresentation
on which Marlin Leasing Corporation justifiably relied?
....
A party’s conduct includes conduct of others that the party
has ratified. Ratification may be express or implied. Ratification
occurred if . . . [BPS], though it may have been unaware of
unauthorized conduct taken on its behalf at the time it occurred,
retained the benefits of the transaction involving the unauthorized
59
conduct after it acquired full knowledge of the unauthorized
conduct. This results in ratification of the entire transaction.
[BPS’s] . . . conduct includes the conduct of Mark Thompson
if Mark Thompson acted with . . . [BPS’s] authority or apparent
authority.
Answer “Yes” or “No.”
Answer: Yes
B. Discussion
On appeal, BPS complains that the ratification instruction in question 21 “make[s]
no reference to Thompson or any specific person.” Yet, at the charge conference, BPS
objected to the instruction on the basis that “it’s overly broad and does not limit the
conduct that is sought to be ratified.” “This objection does not comport with its
complaint on appeal.” Cajun Constructors, Inc. v. Velasco Drainage Dist., 380 S.W.3d
819, 827 (Tex. App.—Houston [14th Dist.] 2012, pet. denied). “Accordingly, this issue
has not been preserved for our review.” Id.
BPS’s forty-sixth issue is overruled.
XLVII. ISSUE FORTY-SEVEN
In its forty-seventh issue, BPS contends that the trial court erred in instructing the
jury on “ratification” in question 22 because it did not name a specific person.
A. Jury Charge and Verdict
In relevant part, the jury charge provided as follows:
QUESTION NUMBER 22
Did Business Product Supply commit fraud against Marlin Leasing
Corporation?
....
60
A party’s conduct includes conduct of others that the party
has ratified. Ratification may be express or implied. Ratification
occurred if . . . [BPS], though it may have been unaware of
unauthorized conduct taken on its behalf at the time it occurred,
retained the benefits of the transaction involving the unauthorized
conduct after it acquired full knowledge of the unauthorized
conduct. This results in ratification of the entire transaction.
[BPS’s] . . . conduct includes the conduct of Mark Thompson
if Mark Thompson acted with . . . [BPS’s] authority or apparent
authority.
Answer “Yes” or “No.”
Answer: Yes
B. Discussion
On appeal, BPS complains that the ratification instruction in question 22 “make[s]
no reference to Thompson or any specific person.” Yet, at the charge conference, BPS
objected to the instruction on the basis that “it’s overly broad and does not limit the
conduct that is sought to be ratified.” “This objection does not comport with its
complaint on appeal.” Cajun Constructors, 380 S.W.3d at 827. “Accordingly, this issue
has not been preserved for our review.” Id.
BPS’s forty-seventh issue is overruled.
XLVIII. ISSUE FORTY-EIGHT
In its forty-eighth issue, BPS contends that the trial court erred in question 5 in
placing “the ‘ratification instruction/definition’ consecutively with the instruction that
BPS’s conduct included Thompson’s if the jury answered ‘yes’ on authority” because by
doing so, the trial court made “a comment on the weight of the evidence and nudge[d]
the jury by connecting BPS to Thompson’s conduct diverting the jury’s considering
complicity between Marlin and Thompson.” At the charge conference, BPS did not
61
make this objection, though it did object that the ratification instruction was “a comment
on the weight of the evidence.” See TEX. R. CIV. P. 272. However, the objection did not
make the trial court aware of BPS’s specific complaint that the two instructions should
not be placed consecutively in the charge. See Cruz, 364 S.W.3d at 829. Accordingly,
the error, if any, was waived. See TEX. R. CIV. P. 272.
BPS’s forty-eighth issue is overruled.
XLIX. ISSUE FORTY-NINE
In its forty-ninth issue, BPS contends that the trial court erred in question 21 in
placing “the ‘ratification instruction/definition’ consecutively with the instruction that
BPS’s conduct included Thompson’s if the jury answered ‘yes’ on authority” because by
doing so, the trial court made “a comment on the weight of the evidence and nudge[d]
the jury by connecting BPS to Thompson’s conduct diverting the jury’s considering
complicity between Marlin and Thompson.” At the charge conference, BPS did not
make this objection, though it did object to “the apparent authority instruction on the
conduct of Mark Thompson because it nudges the jury towards a result.” However, the
objection did not make the trial court aware of BPS’s specific complaint that the two
instructions should not be placed consecutively in the charge. See Cruz, 364 S.W.3d at
829. Accordingly, the error, if any, was waived. See TEX. R. CIV. P. 272.
BPS’s forty-ninth issue is overruled.
L. ISSUE FIFTY
In its fiftieth issue, BPS contends that the trial court erred in question 22 in
placing “the ‘ratification instruction/definition’ consecutively with the instruction that
BPS’s conduct included Thompson’s if the jury answered ‘yes’ on authority” because it
62
was “a comment on the weight of the evidence and nudge[d] the jury by connecting
BPS to Thompson’s conduct diverting the jury’s considering complicity between Marlin
and Thompson.” At the charge conference, BPS did not make this objection, though it
did object to “the instruction on Mark Thompson’s conduct, being that of Business
Product Supply because it . . . nudges the jury towards the result . . . and comments on
the ultimate issue in the case.” However, the objection did not make the trial court
aware of BPS’s specific complaint that the two instructions should not be placed
consecutively in the charge. See Cruz, 364 S.W.3d at 829. Accordingly, the error, if
any, was waived. See TEX. R. CIV. P. 272.
BPS’s fiftieth issue is overruled.
LI. ISSUE FIFTY-ONE
In its fifty-first issue, BPS contends that the trial court erred “in submitting two
separate, and nearly identical negligence questions 6 and 8.” At the charge conference,
BPS did not make this objection. See Cruz, 364 S.W.3d at 829. Therefore, the error, if
any, was waived. See TEX. R. CIV. P. 272.
BPS’s fifty-first issue is overruled.
LII. ISSUE FIFTY-TWO
In its fifty-second issue, BPS contends that the trial court erred “in submitting two
separate, and nearly identical . . . comparative percentage questions, 7 and 10.” At the
charge conference, BPS did not make this objection. See Cruz, 364 S.W.3d at 829.
Therefore, the error, if any, was waived. See TEX. R. CIV. P. 272.
BPS’s fifty-second issue is overruled.
63
LIII. ISSUE FIFTY-THREE
In its fifty-third issue, BPS contends that the trial court erred in submitting
“question 6 [on Marlin’s negligence because it] improperly limited the jury’s
consideration of Marlin’s conduct to the method of accounting and funding.” In its brief,
BPS does not support this contention with an argument or substantive analysis with
appropriate citations to authority. See TEX. R. APP. P. 38.1(i); MumboJumbo, 350
S.W.3d at 722. Accordingly, we conclude that the issue is inadequately briefed, and the
error, if any, is waived. See Fredonia State Bank, 881 S.W.2d at 284.
BPS’s fifty-third issue is overruled.
LIV. ISSUE FIFTY-FOUR
In its fifty-fourth issue, BPS contends that the trial court erred in submitting
“question 9 [on BPS’s negligence because] it did not limit the jury’s consideration in
answering the question.” In its brief, BPS does not support this contention with an
argument or substantive analysis with appropriate citations to authority. See TEX. R.
APP. P. 38.1(i); MumboJumbo, 350 S.W.3d at 722. Accordingly, we conclude that the
issue is inadequately briefed, and the error, if any, is waived. See Fredonia State Bank,
881 S.W.2d at 284.
BPS’s fifty-fourth issue is overruled.
LV. ISSUE FIFTY-FIVE
In its fifty-fifth issue, BPS contends that the jury’s “[n]egative findings that
Thompson was not acting as Marlin’s agent is [sic] against the great weight and
preponderance of the evidence.”
64
A. Jury Charge and Verdict
In relevant part, the jury charge provided as follows:
QUESTION NUMBER 2
Was Mark Thompson an agent of those named below with respect
to the transactions that are the basis of this lawsuit?
For an agency relationship to have existed between those
named below and Mark Thompson, those named below must have
had both the right to assign tasks to Mark Thompson, and the right
to control the means and details by which Mark Thompson was to
accomplish those tasks.
Answer “Yes” or “No” as to each of the following:
a. Business Product Supply: Yes
b. Marlin Leasing Corporation: No
B. Standard of Review
“In reviewing a factual sufficiency point, the court of appeals must weigh all of the
evidence in the record.” Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). “Findings
may be overturned only if they are so against the great weight and preponderance of
the evidence as to be clearly wrong and unjust.” Id. “[The parties] are entitled to a
written opinion stating why the jury’s verdict can or cannot be set aside.” Gonzalez v.
McAllen Med. Ctr., Inc., 195 S.W.3d 680, 681 (Tex. 2006). “A court of appeals must
detail the evidence and clearly state why the jury’s finding is factually insufficient when
reversing a jury verdict, but [it] need not do so when affirming a jury verdict.” Id.
“[N]either the appellate rules nor [the Texas Supreme] Court require detailed recitations
of the evidence when a factual sufficiency complaint is overruled.” Id. “But merely
stating that it is overruled does not count as providing the ‘basic reasons’ for that
decision.” Id. “Explaining whether reasonable jurors could discredit one or credit the
65
other without ignoring the great weight and preponderance of the evidence should
require no more words than the court of appeals expended reciting the standard of
review.” Id. at 681–82.
C. Discussion
In one sentence, BPS contends that the jury’s negative answer to question 2b is
against the great weight and preponderance of the evidence; “[h]owever, beyond this
statement of the issue, [BPS’s] brief does not present any argument as to why the
evidence is factually insufficient.” See Bogart v. Star Bldg. Sys., No. 01-10-00446-CV,
2011 Tex. App. LEXIS 1747, at *6–7 n.3 (Tex. App.—Houston [1st Dist.] Mar. 10, 2011,
pet. denied) (mem. op.). “[BPS’s] brief does not . . . cite to any authority on this issue . .
. or discuss how the law relating to factual sufficiency applies to the facts of this case.”
See id. BPS has not “demonstrate[d] on appeal that the adverse finding is against the
great weight and preponderance of the evidence.” Dow Chem. Co. v. Francis, 46
S.W.3d 237, 242 (Tex. 2001). Accordingly, we conclude that the issue has been
inadequately briefed, and the error, if any, is waived. See Fredonia State Bank, 881
S.W.2d at 284.9
9
See Ski River Dev., Inc. v. McCalla, 167 S.W.3d 121, 141 (Tex. App.—Waco 2005, pet. denied)
(“Ski River and the Davises’ legal and factual sufficiency argument is one sentence in their 50 page brief
and contains no citations to the reporter's record . . . . By their failure, Ski River and the Davises have
waived their legal and factual sufficiency complaints about the jury findings.”); Gerdes v. Kennamer, 155
S.W.3d 523, 534 (Tex. App.—Corpus Christi 2004, pet. denied) (“As their second subissue within issue
four, the Gerdeses argue that the evidence is legally and factually insufficient to support the jury's finding
of fraud damages. However, they do nothing more than summarily repeat the issue in their brief, without
citation to legal authority or substantive analysis. Thus, we hold that the Gerdeses inadequately briefed
the second part of issue four and failed to preserve it on appeal.”) (citing TEX. R. APP. P. 38.1); see also
BFI Waste Sys. of N. Am., Inc. v. N. Alamo Water Supply Corp., No. 13-04-00069-CV, 2006 Tex. App.
LEXIS 3007, at *17 n.5 (Tex. App.—Corpus Christi April 13, 2006, pet. denied) (mem. op.) (“Because
appellants failed to provide any argument or citations to (1) the record relating to their factual sufficiency
challenge to the jury's finding in response to Question No.1 and (2) their legal and factual sufficiency
challenges to the jury’s finding in response to Question No. 2, we conclude they are inadequately briefed
and, therefore, waived.”); Bechtel Corp. v. City of San Antonio, No. 04-04-00910-CV, 2006 Tex. App.
LEXIS 816, at *18–19 (Tex. App.—San Antonio Feb. 1, 2006, no pet.) (mem. op.) (“According to Bechtel
66
BPS’s fifty-fifth issue is overruled.
LVI. ISSUE FIFTY-SIX
In its fifty-sixth issue, BPS contends that the jury’s answer to question 4a was
“against the great weight and preponderance of the evidence.” As set forth above, in
question 4a, the jury found that Marlin did not breach its agreement, if any, with BPS
“[b]y failing to fund equipment purchased from . . . [BPS] via ACH electronic transfer to .
. . [BPS’s] account with Frost Bank.” According to BPS, this finding is “against the great
weight and preponderance of the evidence because there is no evidence BPS knew or
authorized Marlin to use its vendor account for any purpose other than paying BPS for
delivering equipment.” Beyond this statement of the issue, BPS’s brief does not provide
any argument as to why the evidence is factually insufficient. See TEX. R. APP. P.
38.1(i). BPS’s brief does not cite to any authority on this issue or discuss how the law
relating to factual sufficiency applies to the facts of this case. See id. There is no
substantive analysis of the issue. See MumboJumbo, 350 S.W.3d at 722. Accordingly,
we conclude that the issue is inadequately briefed, and the error, if any, is waived. See
Fredonia State Bank, 881 S.W.2d at 284.
BPS’s fifty-sixth issue is overruled.
LVII. ISSUE FIFTY-SEVEN
In its fifty-seventh issue, BPS contends that the jury’s answer to question 4b was
“against the great weight and preponderance of the evidence.” As set forth above, in
and Dead On, ‘there was not legally sufficient evidence to establish that the amounts claimed were
reasonable out-of-pocket costs incurred or that the infrastructure was restored to the condition it was in
immediately before the occurrence in question.’ Thus, they argue that there is insufficient evidence to
support the jury’s findings that the City suffered damages in the amount of $ 148,180.49 and that SAWS
suffered damages in the amount of $ 56,385.49. Bechtel and Dead On, however, just offer these
conclusory statements and do not discuss the evidence at all. As such, they have inadequately briefed
this issue.”).
67
question 4b, the jury found that Marlin did not breach its agreement, if any, with BPS
“[b]y failing to fund soft assets via ACH electronic transfer to . . . [BPS’s] account with
Frost Bank.” According to BPS, this finding is “against the great weight and
preponderance of the evidence because there is no evidence BPS knew or authorized
Marlin to use its vendor account for any purpose other than paying BPS for delivering
equipment.” Beyond this statement of the issue, BPS’s brief does not provide any
argument as to why the evidence is factually insufficient. See TEX. R. APP. P. 38.1(i).
BPS’s brief does not cite to any authority on this issue or discuss how the law relating to
factual sufficiency applies to the facts of this case. See id. There is no substantive
analysis of the issue. See MumboJumbo, 350 S.W.3d at 722. Accordingly, we
conclude that the issue is inadequately briefed, and the error, if any, is waived. See
Fredonia State Bank, 881 S.W.2d at 284.
BPS’s fifty-seventh issue is overruled.
LVIII. ISSUE FIFTY-EIGHT
In its fifty-eighth issue, BPS contends that the jury’s answer to question 4c was
“against the great weight and preponderance of the evidence.” As set forth above, in
question 4c, the jury found that Marlin did not breach its agreement, if any, with BPS
“[b]y paying points or referral fees directly to Mark Thompson.” According to BPS, this
finding is “against the great weight and preponderance of the evidence because there is
no evidence BPS knew or authorized Marlin to use its vendor account for any purpose
other than paying BPS for delivering equipment.” Beyond this statement of the issue,
BPS’s brief does not provide any argument as to why the evidence is factually
insufficient. See TEX. R. APP. P. 38.1(i). BPS’s brief does not cite to any authority on
68
this issue or discuss how the law relating to factual sufficiency applies to the facts of this
case. See id. There is no substantive analysis of the issue. See MumboJumbo, 350
S.W.3d at 722. Accordingly, we conclude that the issue is inadequately briefed, and the
error, if any, is waived. See Fredonia State Bank, 881 S.W.2d at 284.
BPS’s fifty-eighth issue is overruled.
LIX. ISSUE FIFTY-NINE
In its fifty-ninth issue, BPS contends that the trial court erred in “disallow[ing] jury
inquiry [into] whether Thompson acted outside the scope of his authority.” Other than
this statement of the issue, BPS’s brief does not provide any argument to establish that
the trial court erred with respect to the challenged aspect of the jury charge. See TEX.
R. APP. P. 38.1(i). BPS’s brief does not cite to any authority on this issue or discuss
how the law relating to the jury charge applies to the facts of this case. See id. There is
no substantive analysis of the issue. See MumboJumbo, 350 S.W.3d at 722.
Accordingly, we conclude that the issue is inadequately briefed, and the error, if any, is
waived. See Fredonia State Bank, 881 S.W.2d at 284.
BPS’s fifty-ninth issue is overruled.
LX. ISSUE SIXTY
In its sixtieth issue, BPS contends that the trial court erred in “disallow[ing] jury
inquiry [into] whether . . . Marlin and Thompson were in a joint enterprise.” Other than
this statement of the issue, BPS’s brief does not provide any argument to establish that
the trial court erred with respect to the challenged aspect of the jury charge. See TEX.
R. APP. P. 38.1(i). BPS’s brief does not cite to any authority on this issue or discuss
how the law relating to the jury charge applies to the facts of this case. See id. There is
69
no substantive analysis of the issue. See MumboJumbo, 350 S.W.3d at 722.
Accordingly, we conclude that the issue is inadequately briefed, and the error, if any, is
waived. See Fredonia State Bank, 881 S.W.2d at 284.
BPS’s sixtieth issue is overruled.
LXI. ISSUE SIXTY-ONE
In its sixty-first issue, BPS contends that the jury’s answer to question 11 was
“against the great weight and preponderance of the evidence . . . because BPS was
forced to purchase the equipment at the end of the lease term to mitigate damages, and
the ‘buy out’ amount Marlin demanded was the residual value that Marlin had no
reasonable expectation of recouping.”
A Jury Charge and Verdict
In relevant part, the jury charge provided as follows:
QUESTION NUMBER 11
Did Marlin . . . engage in any false, misleading, or deceptive acts or
practices that were a producing cause of damages to . . . [BPS]?
Answer “Yes” or “No” as to each “false, misleading or deceptive act
or practice” that you find, if any:
“False, misleading, or deceptive act or practice” means any of the
following:
a. Causing confusion or misunderstanding as to the source, sponsorship,
approval or certification of the equipment sold to . . . [BPS] at the end
of the lease term.
Answer: No
b. Representing that the equipment sold to . . . [BPS] at the end of the
lease term had characteristics, ingredients, uses, benefits, or quantities
which they did not have.
Answer: No
70
c. Representing that the equipment sold to . . . [BPS] at the end of the
lease term was of a particular standard, quality, or grade, if they were
of another.
Answer: No
B. Discussion
According to BPS, the jury’s findings to question 11 were “against the great
weight and preponderance of the evidence . . . because BPS was forced to purchase
the equipment at the end of the lease term to mitigate damages, and the ‘buy out’
amount Marlin demanded was the residual value that Marlin had no reasonable
expectation of recouping.” Beyond this statement of the issue, BPS’s brief does not
provide any argument to establish why the evidence is factually insufficient. See TEX.
R. APP. P. 38.1(i). BPS’s brief does not cite to any authority on this issue or discuss
how the law relating to factual sufficiency applies to the facts of this case. See id.
There is no substantive analysis of the issue. See MumboJumbo, 350 S.W.3d at 722.
Accordingly, we conclude that the issue is inadequately briefed, and the error, if any, is
waived. See Fredonia State Bank, 881 S.W.2d at 284.
BPS’s sixty-first issue is overruled.
LXII. ISSUE SIXTY-TWO
In its sixty-second issue, BPS contends that the jury’s answer to question 12 was
“against the great weight and preponderance of the evidence . . . because BPS was
forced to purchase the equipment at the end of the lease term to mitigate damages, and
the ‘buy out’ amount Marlin demanded was the residual value that Marlin had no
reasonable expectation of recouping.”
71
A. Jury Charge and Verdict
In relevant part, the jury charge provided as follows:
QUESTION NUMBER 12
Did Marlin . . . engage in any unconscionable action or course of
action in selling equipment to . . . [BPS] at the end of the lease term that
was a producing cause of damages to . . . [BPS]?
....
Answer “yes” or “no.”
Answer: No
B. Discussion
According to BPS, the jury’s answer to question 12 was “against the great weight
and preponderance of the evidence . . . because BPS was forced to purchase the
equipment at the end of the lease term to mitigate damages, and the ‘buy out’ amount
Marlin demanded was the residual value that Marlin had no reasonable expectation of
recouping.” Beyond this statement of the issue, BPS’s brief does not provide any
argument about why the evidence is factually insufficient. See TEX. R. APP. P. 38.1(i).
BPS’s brief does not cite to any authority on this issue or discuss how the law relating to
factual sufficiency applies to the facts of this case. See id. There is no substantive
analysis of the issue. See MumboJumbo, 350 S.W.3d at 722. Accordingly, we
conclude that the issue is inadequately briefed, and the error, if any, is waived. See
Fredonia State Bank, 881 S.W.2d at 284.
BPS’s sixty-second issue is overruled.
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LXIII. ISSUE SIXTY-THREE
In its sixty-third issue, BPS contends that the jury’s answer to question 13 was
“against the great weight and preponderance of the evidence.”
A. Jury Charge and Verdict
In relevant part, the jury charge provided as follows:
QUESTION NUMBER 13
By what date should [BPS] . . . , in the exercise of reasonable
diligence, have discovered the false, misleading, or deceptive act or
practice or unconscionable acts of Marlin . . . ?
Answer with a date (month, date, year) in the blank below.
Answer: N/A
B. Discussion
According to BPS, the jury’s answer to question 13 was “against the great weight
and preponderance of the evidence.” However, as set forth above, the jury did not
answer question 13 because question 13 was predicated on an affirmative answer to
question 11 or question 12, and the jury answered “no” to both questions. Furthermore,
as set forth above, BPS waived any challenge to the sufficiency of the evidence to
support the jury’s answers to question 11 and question 12 by failing to adequately brief
the issues. See id. Accordingly, we conclude that BPS’s challenge to the sufficiency of
the evidence to support the jury’s answer to question 13 is without merit.
BPS’s sixty-third issue is overruled.
LXIV. ISSUE SIXTY-FOUR
In its sixty-fourth issue, BPS contends that the jury’s answer to question 14 is
“against the great weight and preponderance of the evidence.”
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A. Jury Charge and Verdict
In relevant part, the jury charge provided as follows:
QUESTION NUMBER 14
What sum of money, if paid now in cash, would fairly and
reasonably compensate . . . [BPS] for its damages, if any, that resulted
from the conduct you found?
Answer in Dollars and Cents, if any, as to each element of
damages.
The difference, if any, in the value of the equipment that . . . [BPS]
received and the value of the equipment as represented. The difference
in value, if any, shall be determined at the time of the purchase of the
equipment by [BPS] . . . at the end of the lease term.
Answer: N/A
B. Discussion
According to BPS, the jury’s answer to question 14 was “against the great weight
and preponderance of the evidence.” However, as set forth above, the jury did not
answer question 14 because question 14 was predicated on an affirmative answer to
question 11 or question 12, and the jury answered “no” to both questions. Furthermore,
as set forth above, BPS waived any challenge to the sufficiency of the evidence to
support the jury’s answers to question 11 and question 12 by failing to adequately brief
the issues. See id. Accordingly, we conclude that BPS’s challenge to the sufficiency of
the evidence to support the jury’s answer to question 14 is without merit.
BPS’s sixty-fourth issue is overruled.
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LXV. ISSUE SIXTY-FIVE
In its sixty-fifth issue, BPS contends that the jury’s answer to question 15 is
“against the great weight and preponderance of the evidence.”
A. Jury Charge and Verdict
In relevant part, the jury charge provided as follows:
QUESTION NUMBER 15
Did Marlin . . . engage in any such conduct knowingly?
....
Answer “Yes” or “No.”
Answer: N/A
B. Discussion
According to BPS, the jury’s answer to question 15 was “against the great weight
and preponderance of the evidence.” However, as set forth above, the jury did not
answer question 15 because question 15 was predicated on an affirmative answer to
question 11 or question 12, and the jury answered “no” to both questions. Furthermore,
as set forth above, BPS waived any challenge to the sufficiency of the evidence to
support the jury’s answers to question 11 and question 12 by failing to adequately brief
the issues. See id. Accordingly, we conclude that BPS’s challenge to the sufficiency of
the evidence to support the jury’s answer to question 15 is without merit.
BPS’s sixty-fifth issue is overruled.
LXVI. ISSUE SIXTY-SIX
In its sixty-sixth issue, BPS contends that the jury’s answer to question 16 was
“against the great weight and preponderance of the evidence.”
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A. Jury Charge and Verdict
In relevant part, the jury charge provided as follows:
QUESTION NUMBER 16
What sum of money, if any, in addition to actual damages, should
be awarded to . . . [BPS] against Marlin . . . because Marlin[’s] . . . conduct
was committed knowingly?
....
Answer in Dollars and Cents, if any.
Answer: N/A
B. Discussion
According to BPS, the jury’s answer to question 16 was “against the great weight
and preponderance of the evidence.” However, as set forth above, the jury did not
answer question 16 because question 16 was predicated on an affirmative answer to
question 15, which the jury did not reach because question 15 was predicated on an
affirmative answer to question 11 or question 12, and the jury answered “no” to both
questions. Furthermore, as set forth above, BPS waived any challenge to the
sufficiency of the evidence to support the jury’s answers to question 11 and question 12
by failing to adequately brief the issues. See id. Accordingly, we conclude that BPS’s
challenge to the sufficiency of the evidence to support the jury’s answer to question 16
is without merit.
BPS’s sixty-sixth issue is overruled.
LXVII. ISSUE SIXTY-SEVEN
In its sixty-seventh issue, BPS contends that the trial court erred in “[f]ailing to
instruct the jury in question 21 . . . regarding Marlin’s duty to exercise ordinary care to
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protect its interests regarding BPS’s alleged negligent misrepresentation . . . .” BPS has
failed to provide a clear and concise argument in support of this contention. See TEX.
R. APP. P. 38.1(i). BPS has failed to provide a substantive analysis to establish that the
trial court had no discretion to refuse the requested instruction. See MumboJumbo, 350
S.W.3d at 722; see also Thota, 366 S.W.3d at 687. Accordingly, the issue has been
inadequately briefed, and the error, if any, is waived. See Fredonia State Bank, 881
S.W.2d at 284.
BPS’s sixty-seventh issue is overruled.
LXVIII. ISSUE SIXTY-EIGHT
In its sixty-eighth issue, BPS contends that the trial court erred because question
21 “tilted the jury towards the answer because it suggested Thompson’s conduct was
BPS’s conduct.” BPS has failed to provide a clear and concise argument in support of
this contention. See TEX. R. APP. P. 38.1(i). BPS has failed to provide a substantive
analysis in support of this issue. See MumboJumbo, 350 S.W.3d at 722; see also
Thota, 366 S.W.3d at 687. Accordingly, the issue has been inadequately briefed, and
the error, if any, is waived. See Fredonia State Bank, 881 S.W.2d at 284.
BPS’s sixty-eighth issue is overruled.
LXIX. ISSUE SIXTY-NINE
In its sixty-ninth issue, BPS contends that the trial court erred because question
22 “tilted the jury towards the answer because it suggested Thompson’s conduct was
BPS’s conduct.” BPS has failed to provide a clear and concise argument in support of
this contention. See TEX. R. APP. P. 38.1(i). BPS has failed to provide a substantive
analysis in support of this issue. See MumboJumbo, 350 S.W.3d at 722; see also
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Thota, 366 S.W.3d at 687. Accordingly, the issue has been inadequately briefed, and
the error, if any, is waived. See Fredonia State Bank, 881 S.W.2d at 284.
BPS’s sixty-ninth issue is overruled.
LXX. ISSUE SEVENTY
In its seventieth issue, BPS argues that there is insufficient evidence to support
the jury’s answer to question 21. Other than this statement of the issue, BPS’s brief
does not provide any argument as to why the evidence is insufficient. See TEX. R. APP.
P. 38.1(i). BPS’s brief does not cite to any authority on this issue or discuss how the
law relating to sufficiency of the evidence applies to the facts of this case. See id.
There is no substantive analysis of the issue. See MumboJumbo, 350 S.W.3d at 722.
Accordingly, we conclude that the issue is inadequately briefed, and the error, if any, is
waived. See Fredonia State Bank, 881 S.W.2d at 284.
BPS’s seventieth issue is overruled.
LXXI. ISSUE SEVENTY-ONE
In its seventy-first issue, BPS argues that there is insufficient evidence to support
the jury’s answer to question 22. Other than this statement of the issue, BPS’s brief
does not provide any argument about why the evidence is insufficient. See TEX. R. APP.
P. 38.1(i). BPS’s brief does not cite to any authority on this issue or discuss how the
law relating to sufficiency of the evidence applies to the facts of this case. See id.
There is no substantive analysis of the issue. See MumboJumbo, 350 S.W.3d at 722.
Accordingly, we conclude that the issue is inadequately briefed, and the error, if any, is
waived. See Fredonia State Bank, 881 S.W.2d at 284.
BPS’s seventy-first issue is overruled.
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LXXII. ISSUE SEVENTY-TWO
In its seventy-second issue, BPS contends that “[p]lacing defensive question 3
prior to BPS’s affirmative question 4 is a comment on the weight of the evidence
because question 3b implies that BPS should have known of the existence of the
payments to Thompson then question 4c inquires if paying points directly to Thompson
was a breach of the agreement.”
A. Proceedings
At the charge conference, BPS made the following objections to question 3:
Plaintiff objects to Question No. 3, the defensive issue of statute of
limitations because there is no evidence to support the submission of
statute of limitations.
Plaintiff objects to No. 3 because there’s not even a scintilla of evidence
that would provide for submitting statute of limitations.
Plaintiff objects to Question No. 3 because it is multifarious and the first 3-
A., in that the jury could result in conflicting answers and conflicting
evidence.
The Plaintiff objects to Question No. 3 because it’s misleading as to the
lapping scheme of paying form [sic] from one customer account and
applying it to another unrelated customer account.
Plaintiff objects to Question No. 3 because it is misleading in that the
complaint was to apply one lease funding to another unrelated funding.
Plaintiff objects to Question No. 3 because it directs the jury to an answer.
Plaintiff objects to Question No. 3 because it nudges the jury to find an
answer without - - Plaintiff objects to Question No. 3 because it’s a
comment on the weight of the evidence. That concludes Question 3.
B. Discussion
As set forth above, BPS made a number of objections to question 3, including
that it was “a comment on the weight of the evidence,” but BPS did not make the trial
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court aware of its specific complaint that “[p]lacing defensive question 3 prior to BPS’s
affirmative question 4 [wa]s a comment on the weight of the evidence.” See TEX. R. CIV.
P. 272. Accordingly, the issue has not been preserved for our review, and the error, if
any, is waived. See Cruz, 364 S.W.3d at 829. Moreover, even if the issue had been
preserved for our review, the error pertaining to the statute of limitations, if any, is not
reversible for the reasons stated in our discussion of BPS’s forty-first issue. See TEX. R.
APP. P. 44.1(a).
BPS’s seventy-second issue is overruled.
LXXIII. ISSUE SEVENTY-THREE
In its seventy-third issue, BPS contends that “[q]uestions 3, 3a and 3b are not
hooked to any particular question rendering its [sic] application meaningless and should
be disregarded.” For the reasons stated above in connection with BPS’s forty-first
issue, we conclude that the error pertaining to the statute of limitations, if any, is not
reversible. See id.
BPS’s seventy-third issue is overruled.
LXXIV. ISSUE SEVENTY-FOUR
In its seventy-fourth issue, BPS contends that “[t]he compound format of
Question 3a is a comment on the weight of the evidence and does not answer the
ultimate issue.” For the reasons stated above in connection with BPS’s forty-first issue,
we conclude that the error pertaining to the statute of limitations, if any, is not reversible.
See id.
BPS’s seventy-fourth issue is overruled.
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LXXV. ISSUE SEVENTY-FIVE
In its seventy-fifth issue, BPS complains that the trial court erred in submitting
question 3 because “[e]ach portion of the question may have a different response.” For
the reasons stated above in connection with BPS’s forty-first issue, we conclude that the
error pertaining to the statute of limitations, if any, is not reversible. See TEX. R. APP. P.
44.1(a).
BPS’s seventy-fifth issue is overruled.
LXXVI. ISSUE SEVENTY-SIX
In its seventy-sixth issue, BPS complains that the trial court erred in submitting
question 3 because part b “is global.” For the reasons stated above in connection with
BPS’s forty-first issue, we conclude that the error pertaining to the statute of limitations,
if any, is not reversible. See id.
BPS’s seventy-sixth issue is overruled.
LXXVII. ISSUE SEVENTY-SEVEN
In its seventy-seventh issue, BPS contends that the trial court erred “by ignoring
the substantive, non-discretionary directive in failing to submit questions, instructions
and definitions of all issues raised by the written pleadings and evidence, that likely
resulted in the rendition of an improper judgment.” In support of this issue, BPS has not
identified any questions, instructions, or definitions that were raised by the pleadings
and evidence that the trial court refused to submit to the jury. We have already
addressed the other assertions of jury charge error raised in its appellate brief. To the
extent BPS’s seventy-seventh issue seeks to raise additional jury charge error beyond
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what we have discussed, the issue is inadequately briefed, see TEX. R. APP. P. 38.1(i),
and the error, if any, is waived. See Fredonia State Bank, 881 S.W.2d at 284.
BPS’s seventy-seventh issue is overruled.
LXXVIII. ISSUE SEVENTY-EIGHT
In its seventy-eighth issue, BPS contends that the “[e]vidence is insufficient to
establish that at time of the lease agreements, BPS had no intention of performing
under the lease agreements at the time they were entered into.” BPS does not identify
which jury question this challenge pertains to or what claim or defense is being
challenged by this issue. BPS merely states, with no supporting citations to the record,
that “[t]he evidence reveals that BPS intended to perform because it obtained signed
delivery tickets from each customer when the equipment was delivered and BPS
believed Marlin would confirm the equipment delivered.” See TEX. R. APP. P. 38.1(i).
BPS does not discuss how the law relating to sufficiency of the evidence applies to the
facts of the case. See id. There is no substantive analysis of the issue. See
MumboJumbo, 350 S.W.3d at 722. Accordingly, we conclude that the issue is
inadequately briefed, and the error, if any, is waived. See Fredonia State Bank, 881
S.W.2d at 284.
BPS’s seventy-eighth issue is overruled.
LXXIX. ISSUE SEVENTY-NINE
In its seventy-ninth issue, BPS contends that “[t]here is insufficient evidence
Marlin relied upon any representations BPS allegedly made regarding the equipment in
the lease agreements.” As set forth above in our discussion of BPS’s thirty-fifth issue,
we have upheld the damages award to Marlin based on Marlin’s breach of contract
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claim. See TEX. R. APP. P. 47.1. Accordingly, because this issue does not pertain to
Marlin’s breach of contract claim, the error, if any, would not entitle BPS to reversal of
the damages award to Marlin. See TEX. R. APP. P. 44.1(a).
BPS’s seventy-ninth issue is overruled.
LXXX. ISSUE EIGHTY
In its eightieth issue, BPS contends that “Marlin’s reliance, if any, was not
reasonable.” As set forth above in our discussion of BPS’s thirty-fifth issue, we have
upheld the damages award to Marlin based on Marlin’s breach of contract claim. See
TEX. R. APP. P. 47.1. Accordingly, because this issue does not pertain to Marlin’s
breach of contract claim, the error, if any, would not entitle BPS to reversal of the
damages award to Marlin. See TEX. R. APP. P. 44.1(a).
BPS’s eightieth issue is overruled.
LXXXI. CONCLUSION
The judgment of the trial court is affirmed.
_______________________
NORA L. LONGORIA
Justice
Delivered and filed the
29th day of August, 2013.
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