Date: 08-09-2012

Case Style: Southwest Galvanizing, Inc. v. Eagle Fabricators, Inc.

Case Number: 14-11-01064-CV

Judge: Sharon McCally

Court: Texas Court of Appeals, Fourteenth District on appeal from the County Civil Court at Law No. 3, Harris County

Plaintiff's Attorney: F. Richard Leach, Leach & Minnick P.C., Houston, Texas for Southwest Galvanizing, Inc.

Defendant's Attorney: G. Wesley Urquhart and Kenneth A. Zimmern, Zimmern Law Firm, P.C., Houston, Texas for Eagle Fabricators, Inc

Description: Appellant Southwest Galvanizing, Inc. (―SWG‖) sued appellee Eagle Fabricators, Inc. (―Eagle‖) for breach of contract after Eagle allegedly failed to pay SWG for ―hot dip‖ galvanizing services performed by SWG. A jury found in favor of SWG and awarded damages and attorney‘s fees. The trial court signed a final judgment in conformity with the jury‘s verdict, with the exception that the trial court reduced the amount of attorney‘s fees awarded by the jury. SWG appeals. We reverse and render in part, and affirm in part.

BACKGROUND

SWG sued Eagle for breach of contract after Eagle allegedly failed to pay SWG for ―hot dip‖ galvanizing services performed by SWG in 2006. Eagle counterclaimed against SWG, alleging breach of contract, usury, conversion, and unjust enrichment. Both parties sought damages and attorney‘s fees.

After a trial, the jury found that Eagle failed to comply with its agreement with SWG and awarded $7,789.29 in damages to SWG. The jury failed to find in Eagle‘s favor on any of its counterclaims. The jury also found ―a reasonable fee for the necessary services of the attorney‖ for SWG to be:

$50,000 for ―preparation and trial‖;

$25,000 for ―an appeal to the Court of Appeals‖;

$20,000 for ―making or responding to a Petition for Review to the Supreme Court of Texas‖; and

$5,000 ―if a Petition for Review is granted by the Supreme Court of Texas.‖

SWG filed a motion for entry of judgment. Eagle filed a ―Response to Motion for Entry of Judgment, Motion for Mistrial or in the Alternative Motion to Disregard Jury Findings,‖ in which Eagle argued that (1) certain jury findings unrelated to attorney‘s fees were not supported by the evidence, and (2) Eagle was entitled to a new trial because ―[r]epresentatives for SWG‖ prompted juror misconduct when they ―contacted and communicated with a juror‘s family member during trial.‖

On September 15, 2011, the trial court signed a final judgment in conformity with the jury‘s verdict, with the exception that the trial court reduced the amount of attorney‘s fees awarded by the jury as follows:

$50,000 ―$31,157.16 (4 x 7,789.29)‖ ―for services rendered through trial of this case‖;

$25,000 ―$10,000‖ ―in the event of an unsuccessful appeal by [Eagle] to the Court of Appeals‖;

$20,000 ―$10,000‖ ―in the event of [SWG] responding to a Petition for

Review to the Supreme Court of Texas‖; and

$5,000 ―if a Petition for Review is granted by the Supreme Court of Texas.‖

SWG filed a motion to modify the trial court‘s judgment, arguing that the trial court erroneously reduced the amount of attorney‘s fees, and requesting that the trial court ―abide by the jury decision . . . and enter a modified judgment which accurately reflects the jury‘s verdict.‖ At a hearing on the motion, the following exchange took place:

THE COURT: You didn‘t like what I did with the attorney‘s fees?

[COUNSEL FOR SWG]: You‘re right. That‘s a good guess, Judge. The motion that‘s set for this morning, Judge, all it does is restore the attorney fees according to the jury verdict. There‘s no motion by Eagle Fab to do so—

THE COURT: Right. But I can, and I‘m going to leave it there. Do you have anything to say about the motion before I deny it?

[COUNSEL FOR EAGLE]: Oh, you‘re going to deny it. No, we have nothing to say about the motion if you‘re going to deny it.

THE COURT: I am going to deny it.

SWG argues in its only issue on appeal that the trial court should have granted SWG‘s motion to modify the judgment.

ANALYSIS

SWG complains on appeal that a trial court cannot ―usurp the jury‘s role as fact finder‖ by sua sponte ordering ―remittitur‖ of a jury‘s award of attorney‘s fees. SWG contends that, instead, the trial court can only (1) on its own motion, suggest remittitur as an alternative to ordering a new trial on attorney‘s fees pursuant to Texas Rule of Civil Procedure 315; or (2) ―upon motion and reasonable notice,‖ disregard the jury‘s finding regarding attorney‘s fees if it has no support in the evidence pursuant to Texas Rule of Civil Procedure 301. SWG complains that neither procedure was allowed by the trial court in this case, and that we therefore should reverse the trial court‘s judgment and reinstate the jury‘s award of attorney‘s fees.1

We agree, and Eagle does not challenge, that the trial court had no authority to ―order remittitur‖ without the consent of the remitting party under Rule 315 as an alternative to a new trial. See Snoke v. Republic Underwriters Ins. Co., 770 S.W.2d 777, 777 (Tex. 1989) (per curiam) (―The trial court had no power to order a remittitur in the amount of attorney[‘s] fees found by the jury without conditioning that remittitur on a new trial. Thus, the trial court acted in excess of its authority [in doing so].‖); Medi Clinic v. Allen, No. 05-02-00643-CV, 2003 WL 1752167, at *2 (Tex. App.—Dallas Apr. 3, 2003, no pet.) (mem. op.) (same).

We also agree that the trial court had no authority to otherwise ―disregard jury findings‖ regarding attorney‘s fees under Rule 301 absent a motion by Eagle to do so. See TEX. R. CIV. P. 301 (―The judgment of the court shall conform to . . . the verdict . . . . Provided, that upon motion and reasonable notice the court may render judgment non obstante veredicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any jury finding on a question that has no support in the evidence.‖); see also Hall v. Hubco, Inc., 292 S.W.3d 22, 34 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (op. on reh‘g) (a motion under rule 301 ―is a jurisdictional prerequisite to the trial court‘s power to disregard a jury finding‖). Thus, because Eagle did not file a motion to disregard the jury‘s award of attorney‘s fees,2 the trial court had no authority to disregard that finding.3 See Hall, 202 S.W.3d at 34. We reverse the portion of the trial court‘s judgment awarding a reduced amount of attorney‘s fees to SWG.4

When we reverse a trial court‘s judgment disregarding jury findings, we must render judgment in harmony with the jury‘s verdict, unless the opposing party presents grounds sufficient to ―vitiate[] the jury‘s verdict‖ or ―prevent[] an affirmance of the judgment had one been rendered by the trial court in harmony with the verdict.‖ TEX. R. CIV. P. 324(c) (when trial court renders judgment notwithstanding the verdict, failure of appellee to bring forward by cross-point on appeal additional alternative grounds to ―vitiate the verdict shall be deemed a waiver thereof‖); TEX. R. APP. P. 38.2(b)(1) (same); Church’s Fried Chicken, Inc. v. Jim Dandy Fast Foods, Inc., 608 S.W.2d 242, 245 (Tex. Civ. App.—Houston [14th Dist.] 1980, writ ref‘d n.r.e.) (citing Miller v. Bock Laundry Mach. Co., 568 S.W.2d 648 (Tex. 1977), and Jackson v. Ewton, 411 S.W.2d 715 (Tex. 1967)).

To this end, Eagle argues by ―cross issue‖ that we must not render judgment in harmony with the jury‘s verdict because: the jury verdict, including the verdict on: 1) Eagle Fabricators‘ liability for breach of contract, 2) damages incurred by [SWG] and 3) the reasonableness and necessity of [SWG‘s] attorney[‘s] fees, is factually insufficient and against the great weight and preponderance of the evidence as a matter of fact.

However, aside from this unsupported statement, and a request that we ―see generally‖ the portion of the clerk‘s record that contains Eagle‘s response to SWG‘s motion to modify the judgment at the trial court, Eagle provides no relevant authority or analysis of the evidence by which we may decide such an issue, and we do not consider it. See TEX. R. APP. P. 38.1(i); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.] 2005, no pet.). We therefore render judgment reinstating the jury‘s award of attorney‘s fees.

* * *

See: http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=e5e64a94-1687-459c-9306-19a680f2af0d&MediaID=ba55cd5e-96ef-46d2-be85-65f4b4623187&coa=coa14&DT=Opinion

Outcome: Having sustained SWG‘s only issue on appeal, we reverse the portion of the trial court‘s judgment regarding the award of attorney‘s fees, and we render judgment awarding attorney‘s fees in the following amounts: $50,000 ―for services rendered through trial of this case‖; $25,000 ―in the event of an unsuccessful appeal by [Eagle] to the Court of Appeals‖; $20,000 ―in the event of [SWG] responding to a Petition for Review to the Supreme Court of Texas‖; and $5,000 ―if a Petition for Review is granted by the Supreme Court of Texas.‖ We affirm the trial court‘s judgment in all other respects.

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