M&DD Traders Corporation and Jared Biketi v. Total Quality Logistics, Inc. ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00091-CV
M&DD Traders Corporation and § From the 153rd District Court
Jared Biketi
§ of Tarrant County (153-231388-08)
v.
§ December 13, 2012
Total Quality Logistics, Inc. § Opinion by Justice Gardner
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of the
trial court is affirmed.
It is further ordered that appellants M&DD Traders Corporation and Jared
Biketi shall pay all costs of this appeal, for which let execution issue.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Anne Gardner
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00091-CV
M&DD TRADERS CORPORATION APPELLANTS
AND JARED BIKETI
V.
TOTAL QUALITY LOGISTICS, INC. APPELLEE
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FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
Appellants M&DD Traders Corporation (M&DD) and Jared Biketi (Biketi)
appeal the trial court’s judgment in favor of Appellee Total Quality Logistics, Inc.
(TQL). In six issues, Appellants challenge the trial court’s grant of TQL’s post-
1
See Tex. R. App. P. 47.4.
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verdict motion to disregard jury findings, the effect of which required a take-nothing
judgment in TQL’s favor. We affirm.
II. Background
Biketi, the owner of M&DD, needed to ship a quantity of computers and
generators from Fort Worth, Texas to Florida. The computers were to then be
shipped from Florida to Kenya. After searching the internet, Biketi contacted TQL.
Biketi completed a credit application and paid TQL $2,300 to ship the items. TQL
then arranged for the shipment to be made by Hudfed Corporation (Hudfed). Trial
evidence conflicted as to whether TQL was a broker of shipping services or a motor
carrier,2 but a Hudfed truck and crew retrieved the items from M&DD. Although
M&DD’s computers and generators were loaded onto the Hudfed truck, they never
arrived in Florida. TQL told Biketi that something had happened to the shipment,
that the driver was in jail, and that the matter was under investigation, but TQL
denied liability and did not reimburse M&DD for the freight or shipping costs.
M&DD and Biketi subsequently filed this lawsuit against TQL and Hudfed.
Hudfed did not answer and defaulted, and the case proceeded to a jury trial against
TQL. The court’s charge asked the jury whether TQL had agreed to ―assure [the]
delivery of the freight from Fort Worth, Texas to Miami, Florida‖ and whether TQL
failed to comply with that agreement. The jury found that TQL had so agreed but
also that TQL had not failed to comply with the agreement. The charge also
2
The jury found that TQL acted as a broker, not a motor carrier. That finding
was not disregarded by the trial court and is not at issue on appeal.
3
included a promissory estoppel question which asked the jury whether M&DD had
substantially relied to its detriment on a promise by TQL and whether M&DD’s
reliance was foreseeable to TQL. The jury found in M&DD’s favor on the promissory
estoppel question and determined that M&DD’s damages should be $98,287.70 for
loss of the equipment and $2,300 for shipping costs. The jury also answered that
$9,100 is a reasonable fee for the services of M&DD’s attorneys in the case.
After trial, TQL filed a motion to disregard the jury’s findings as to promissory
estoppel, damages for promissory estoppel, and attorney’s fees, arguing both that
the jury’s promissory estoppel finding was legally barred by the jury’s finding that the
parties had a contract and that the jury’s promissory estoppel finding was not
supported by legally sufficient evidence.3 After conducting a hearing and allowing
M&DD an opportunity to file a response, the trial court granted TQL’s motion. The
trial court’s final judgment awarded judgment for M&DD and Biketi against Hudfed
for $98,287.70 but provided that M&DD and Biketi take nothing against TQL. This
appeal followed.
3
As to attorney’s fees, TQL’s motion asserted that attorney’s fees are not
recoverable on a claim for promissory estoppel and that the jury did not find any
breach of contract. We do not address this argument because our other holdings
preclude any recovery by M&DD and Biketi. See Tex. R. App. P. 47.1.
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III. Discussion
A. Independent Grounds Support Judgment
When the trial court’s judgment rests upon more than one independent ground
or defense, the aggrieved party must assign error to each ground, or the judgment
will be affirmed on the ground for which no complaint is made. Scott v. Galusha,
890 S.W.2d 945, 948 (Tex. App.—Fort Worth 1994, writ denied); see Reliford v.
BNSF Ry. Co., No. 02-09-00322-CV, 2011 WL 255795, at *1 (Tex. App.—Fort
Worth Jan. 27, 2011, no pet.) (mem. op.). TQL’s motion to disregard the jury
findings asserted two independent grounds: (1) legally insufficient evidence of
promissory estoppel and (2) conflict between the jury’s finding that the parties had
an express agreement and the jury’s promissory estoppel finding. The trial court’s
judgment recites that the trial court granted TQL’s motion to disregard but does not
specify the ground upon which the trial court granted the motion. To obtain reversal
on appeal, M&DD and Biketi were therefore required to establish that the trial court’s
judgment could not rest on either ground. M&DD and Biketi have not, however,
argued on appeal that legally sufficient evidence supported the jury’s promissory
estoppel findings. We are therefore required to affirm the trial court’s judgment.
See Hong Kong Dev. Inc. v. Nguyen, 229 S.W.3d 415, 456 (Tex. App.—Houston
[1st Dist.] 2007, no pet.) (op. on reh’g) (overruling issue challenging lack of evidence
of waiver or estoppel because the appellants did not challenge the evidence
supporting duress, even though the jury found that failure to obtain consent to
assign a contract was excused by waiver, estoppel, and duress); see also Reliford,
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2011 WL 255795, at *1 (affirming judgment because independent ground—statute
of limitations—had not been challenged on appeal).
Because M&DD and Biketi have not challenged all bases upon which the trial
court could have entered judgment, we must overrule their first four issues without
reaching their merits. See Tex. R. App. P. 47.1, 47.4. In those issues, M&DD and
Biketi contend that there was no legally binding contract between M&DD and TQL.
M&DD and Biketi make this argument because promissory estoppel cannot apply to
promises covered by a valid contract between the parties. Barnett v. Coppell N.
Tex. Ct., Ltd., 123 S.W.3d 804, 825 (Tex. App.—Dallas 2003, pet. denied). Thus,
M&DD and Biketi seek to set aside the jury’s finding that the parties had an
agreement in order to argue that there is no agreement that would bar their recovery
for promissory estoppel. But M&DD and Biketi’s first four issues assume that the
trial court granted TQL’s motion to disregard the promissory estoppel findings only
on the ground that the existence of the contract bars the promissory estoppel claim.
As noted above, the trial court’s judgment could rest on the unchallenged ground
that legally insufficient evidence supported the jury’s promissory estoppel finding.
Thus, even if M&DD and Biketi are correct that there was not a contract between
M&DD and TQL, M&DD and Biketi still cannot prevail on appeal because there
remains the possibility that the trial court set aside the jury’s promissory estoppel
findings on the unchallenged ground that legally insufficient evidence supports the
promissory estoppel claim. The outcome of this appeal would therefore not change
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if we addressed M&DD and Biketi’s first four issues, and we overrule them. See
Tex. R. App. P. 47.1, 47.4.
B. Promissory Estoppel Based on Independent Promise
M&DD and Biketi argue in their fifth issue that promissory estoppel can exist,
even when there is a contract between the parties, when the challenged promise is
one made outside the parties’ contract.
Promissory estoppel cannot apply to promises covered by a valid contract
between the parties, but it does apply to promises made outside the contract. See
Barnett, 123 S.W.3d at 825; Richter v. Wagner Oil Co., 90 S.W.3d 890, 899 (Tex.
App.—San Antonio 2002, no pet.); El Paso Healthcare Sys., Ltd. v. Piping Rock
Corp., 939 S.W.2d 695, 699 (Tex. App.—El Paso 1997, writ denied). Although
M&DD and Biketi contend that they relied to their detriment on a promise outside the
contract with TQL, they had the burden of proof at trial concerning the existence of
that additional promise. See Piping Rock Corp., 939 S.W.2d at 699 (―Piping Rock
additionally had to prove that the promise on which it relied to its detriment was
outside the Agreement.‖). And because they had the burden of proof, M&DD and
Biketi were additionally obligated to tender to the trial court, in substantially correct
form, a question or questions that would place before the jury all disputed elements
of their promissory estoppel claim. See Tex. R. Civ. P. 278, 279; Robertson v.
Odom, 296 S.W.3d 151, 159 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
M&DD and Biketi did not submit to the trial court any proposed questions that
would have allowed the jury to find that TQL made additional promises outside the
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parties’ contract.4 In other words, the jury charge did not ask whether TQL made
any promises beyond its agreement to ―assure [the] delivery of the freight from Fort
Worth, Texas to Miami, Florida.‖ Because the charge did not include this critical
factual element of M&DD and Biketi’s promissory estoppel claim, they are precluded
from arguing on appeal that a promise outside the parties’ contract supports their
promissory estoppel claim. Robertson, 296 S.W.3d at 159–60. We overrule M&DD
and Biketi’s fifth issue.
C. Attorney’s Fees
M&DD and Biketi argue in their sixth issue that attorney’s fees are recoverable
in actions for promissory estoppel. We do not decide this issue, however, because
we have held above that M&DD and Biketi cannot prevail on their promissory
estoppel claim. We thus overrule their sixth issue.
4
M&DD and Biketi also did not object at the charge conference to alert the trial
court that they intended to rely on an alleged additional promise by TQL that was
outside the parties’ contract.
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IV. Conclusion
Having held that M&DD and Biketi have not challenged each independent
ground supporting the judgment and having overruled each of M&DD and Biketi’s
issues, we affirm the trial court’s judgment.
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DELIVERED: December 13, 2012
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