Affirmed as=20
Modified and =
Memorandum=20
Opinion filed September 27, 2007.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-06-00833-CV
____________
END=20
USERS, INC., Appellant/Cross-Appellee
V.
SYSTEM=20
SUPPLY FOR END USERS, INC., =
Appellee/Cross-Appellant
![](3D""=20)
On Appeal from the =
157th District Court
Harris County, =
Texas
Trial Court Cause =
No. 2004-65560
M E M O R=20
A N D U M O P I N I O N
Appellant/cross-appellee=20
End Users, Inc. (AEU@) and=20
appellee/cross-appellant System Supply for End Users, Inc. =
(ASS@) both=20
complain that the trial court erred in refusing to disregard =
portions of=20
the jury=3Ds verdict=20
in this suit involving claims of breach of contract and unjust=20
enrichment. We modify the judgment and affirm as=20
modified.
=
; =
&=
nbsp; =20
I. =20
Background
Alan and=20
Stephen Richardson are twin brothers. In the mid 1980s, Alan =
and=20
Stephen formed SS. SS=3Ds business=20
is to procure natural gas from natural gas producers and provide =
that gas=20
to end use customers. Stephen owned fifty-one percent of SS, =
Alan=20
owned thirty-five percent, and Stephen=3Ds domestic=20
partner William Lessovitz owned fourteen percent. In 1991, =
Alan=20
became upset with how Stephen was running SS and left the =
business. =20
Although the record is unclear whether Alan sold his interest in =
SS or=20
merely ceased participating in operating the business, it is clear =
that=20
Stephen and Alan thereafter considered SS to be =
Stephen=3Ds=20
business.
In 1994,=20
Stephen and Alan decided to put their differences behind them and =
form a=20
second business, EU. EU also provided natural gas to end use =
customers, but it had a different customer base than SS. =
Each=20
brother owned fifty percent of EU, and EU=3Ds profits=20
were to be split equally between them. Alan was the =
president and=20
chief executive officer while Stephen was the chairman and chief =
financial=20
officer. Because EU was starting from scratch but SS had=20
pre-existing relationships with producers, the brothers decided =
that SS=20
would initially support EU. SS and EU entered into a service =
agreement stating that SS would provide EU with Aall=20
administrative, legal, and ancillary services necessary to conduct =
normal=20
business commerce@ =
until=20
EU=3Ds capital=20
account reached certain levels. At the heart of this =
litigation is=20
the service agreement provision that SS would provide EU with =
ACredit and=20
Market Risk for Commodity and Transportation Services at no=20
cost@ =
to EU=20
Auntil=20
[EU]=3Ds capital=20
account exceeds $200,000.@ In=20
other words, as explained by both Alan and Stephen, SS would use =
its=20
credit relationships with producers to procure natural gas for=20
EU=3Ds=20
customers and would provide that gas to EU at cost, thereby =
allowing EU to=20
retain all profits from the ultimate sale of the gas to =
EU=3Ds=20
customers, until EU earned $200,000 in profits.
As to=20
EU=3Ds=20
business, the brothers agreed that Alan was to focus more on =
developing a=20
customer base while Stephen was to be in charge of the financial =
aspects=20
of the business. As such, Stephen made the payments from EU =
to SS to=20
pay SS for the gas it had acquired for EU=3Ds=20
customers. In 2002, Alan grew interested in the finances =
when he=20
became concerned that personal problems between Stephen and =
Lessovitz=20
might result in Lessovitz attempting to gain some control of =
EU. =20
Alan claims that when he examined the financial information, he =
discovered=20
that Stephen had been continually transferring large sums of money =
from EU=20
to SS. When Alan questioned Naomi Rodriguez, who had started =
working=20
for SS in 1987 and then later transferred to EU, he discovered =
that EU was=20
still obtaining gas for its customers through SS instead of going =
directly=20
to the producers. Alan testified that he believed this =
procedure had=20
ended years ago in 1995 or 1996 when he stopped receiving copies =
of=20
invoices for gas costs, which is when he assumed EU had earned =
$200,000 in=20
profits, thereby ending SS=3Ds=20
obligation to procure gas for EU=3Ds=20
customers at cost under the service agreement. According to =
Alan, he=20
had not examined the finances and discovered this information =
during those=20
preceding five or six years because he was too busy running the =
company=20
and had no reason to believe anything improper was =
occurring. =20
Stephen testified that he never attempted to hide anything from =
Alan but=20
continued using SS to procure gas for EU=3Ds=20
customers because EU was not financially strong enough to survive=20
otherwise.
Despite=20
the fact Alan, as fifty percent owner of EU, directly benefitted =
from=20
EU=3Ds profits,=20
Alan apparently believed Stephen was using this gas =
purchasing/payment=20
procedure as a mechanism to improperly transfer excess funds to =
SS, which=20
would benefit Stephen alone. Therefore, in October 2002, =
Alan=20
demanded that the purchase/payment relationship between SS and EU =
end and=20
that both of them refrain from handling any of EU=3Ds money,=20
which they would leave to Rodriguez. Both brothers began to =
study=20
the financial data, which had not been well kept, to determine who =
owed=20
what to whom. Their inability to reach an agreement led to =
this=20
lawsuit.
SS,=20
through Stephen, sued EU. Though it is undisputed that EU, =
through=20
Stephen, transferred to SS more money than was needed to pay for =
the gas=20
SS had procured for EU=3Ds=20
customers, Stephen claimed that EU still owed SS money. He =
asserted=20
that he orally assigned all of his share of the profits from EU to =
SS,=20
which accounted for a portion of the money he transferred from EU =
to=20
SS. Despite this assignment, not all of his profits were =
actually=20
transferred to SS. Stephen also claims that EU did not =
reimburse SS=20
for the total cost of gas SS procured for EU=3Ds=20
customers. In other words, part of the total money =
transferred from=20
EU to SS was for a portion of the gas payments owed and the other =
part was=20
a portion of the profits Stephen assigned to SS, with neither debt =
being=20
paid in full. Thus, SS sued EU for breach of the service =
agreement=20
for failing to pay SS the total cost of the gas and also for =
failing to=20
pay all of Stephen=3Ds assigned=20
EU profits to SS. EU counterclaimed for unjust =
enrichment. =20
Alan, on behalf of EU, argued that EU had no obligation to pay=20
Stephen=3Ds profits=20
to SS and that SS had been unjustly enriched by the amount of =
money EU=20
paid to SS in excess of the total amount due for gas =
costs.
The jury=20
found that EU had breached the service agreement and found damages =
in the=20
amount of $157,613.65, which is the amount SS=3Ds expert=20
had calculated EU still owed for gas costs. The jury found =
that=20
Stephen was entitled to half of EU=3Ds profits=20
and had assigned those profits to SS but that EU had not failed to =
pay=20
those profits to SS. As to the counterclaim, the jury found =
that SS=20
did not receive unjust enrichment from EU.
Both sides=20
requested that the trial court disregard certain jury findings and =
enter=20
judgment in their favor. EU argued that the evidence was=20
insufficient to support the jury=3Ds findings=20
that it breached the service agreement and thereby damaged SS in =
the=20
amount of $157,613.65. EU did not challenge the =
jury=3Ds findings=20
that Stephen had assigned his profits from EU to SS and that SS =
had not=20
been unjustly enriched by SS. SS challenged the =
jury=3Ds finding=20
that EU had not failed to pay SS his profits from EU that he =
assigned to=20
SS. The trial court rejected these arguments and entered =
judgment=20
based on the jury=3Ds=20
findings.
Both=20
parties have appealed and reassert these same issues on =
appeal. They=20
also assert issues regarding the propriety and amount of=20
attorney=3Ds fees and=20
interest awarded.
=
; =
&=
nbsp; &n=
bsp; =20
II. =20
Analysis
A. =20
Standard of Review
In=20
determining whether legally sufficient evidence supports the=20
jury=3Ds=20
findings, we consider the evidence in the light most favorable to =
the=20
challenged finding and indulge every reasonable inference that =
would=20
support it. City of Keller v. Wilson, 168 S.W.3d 802, =
822=20
(Tex. 2005). We must credit favorable evidence if reasonable =
jurors=20
could and disregard contrary evidence unless reasonable jurors =
could not=20
disregard it. Id. at 827. We must determine =
whether the=20
evidence at trial would enable reasonable and fair-minded people =
to find=20
the facts at issue. Id. Jurors are the sole =
judge of=20
the credibility of the witnesses and the weight to be given to =
their=20
testimony. Id. at 819. Evidence is conclusive =
only if=20
reasonable people could not differ in the conclusions. =
Id. at=20
816. When a party attacks the legal sufficiency of an =
adverse=20
finding when it had the burden of proof on the issue, it must =
demonstrate=20
on appeal that the evidence establishes, as a matter of law, all =
vital=20
facts in support of the issue. Dow Chem. Co. v. =
Francis, 46=20
S.W.3d 237, 241 (Tex. 2001).
B. =20
Breach of Contract
Question 1=20
in the jury charged asked if EU Afail[ed]=20
to comply with the Service Agreement dated October 14, =
1994,@ =
and the=20
jury answered AYes.@ In=20
question 2, the jury found that failure damaged SS in the amount =
of=20
$157,613.65. In its first issue, EU challenges the legal and =
factual=20
sufficiency of the evidence to support the jury=3Ds answers=20
to these questions.
To=20
preserve a factual sufficiency issue for review, the appellant =
must=20
include that issue in a motion for new trial. Tex. R. Civ. P. =
324(b)(2);=20
Halim v. Ramchandani, 203 S.W.3d 482, 487 (Tex. =
App.CHouston [14th=20
Dist.] =
2006, no=20
pet.). As EU concedes in its reply brief, it failed to do =
so. =20
Thus, EU=3Ds first=20
issue is overruled to the extent it challenges the factual =
sufficiency of=20
the evidence.
As to=20
legal sufficiency, EU claims no evidence supports the =
jury=3Ds answers=20
to questions 1 and 2 for two reasons. First, EU claims it =
could not=20
have breached Athe=20
Service Agreement dated October 14, 1994,@ =
as=20
specifically asked in the charge, because that agreement =
automatically=20
terminated as a matter of law when EU reached $200,000 in profits, =
which=20
was sometime in 1996 or 1997. =
Thus, argues=20
EU, even if the parties=3D =
subsequent conduct established a new contract, it could not have =
breached=20
the original service agreement because it was no longer in effect, =
meaning=20
no evidence supports the jury=3Ds=20
response. We conclude that EU waived this argument on =
appeal. =20
EU could have preserved this argument in one of five ways: =
(1) a=20
motion for instructed verdict, (3) a motion for judgment =
notwithstanding=20
the verdict, (3) an objection to the submission of the issue to =
the jury,=20
(4) a motion to disregard the jury=3Ds answer=20
to a vital fact issue, or (5) a motion for new trial. =
Cecil v.=20
Smith, 804 S.W.2d 509, 510B11 (Tex.=20
1991); Halim, 203 S.W.3d at 487; see also United Parcel =
Serv.,=20
Inc. v. Cengis Tasdemiroglu, 25 S.W.3d 914, 916 & n.4 =
(Tex.=20
App.CHouston=20
[14th Dist.] 2000, pet. denied) (noting that a motion for judgment =
notwithstanding the verdict preserves a complaint that a legal =
principle=20
prevents a party from prevailing on its claim). =
EU=3Ds motion=20
to disregard the jury=3Ds response=20
to question 1 did not include this ground. Although EU =
elicited=20
testimony supporting this legal theory and argued it during =
closing=20
statement, EU never gave the trial court an opportunity to rule on =
it. EU cannot now assert this theory for the first =
time on=20
appeal. See Halim, 203 S.W.3d at 487 (finding=20
appellant waived a legal sufficiency argument not included in =
motion for=20
directed verdict); City of Houston v. Precast Structures, =
Inc., 60=20
S.W.3d 331, 335 (Tex. =
App.CHouston [14th=20
Dist.] =
2001,=20
pet. denied) (finding legal sufficiency argument waived because =
appellant=20
did not raise that argument in motion for new trial).
EU=3Ds second=20
legal sufficiency argument focuses on the evidence presented =
rather=20
than a legal theory, as with its first issue. EU =
emphasizes=20
the undisputed fact that the total value of the money transferred =
from EU=20
to SS exceeded the amount necessary to reimburse SS for gas costs =
and=20
disputes SS=3Ds theory=20
that the money flow was allocated partially to gas costs and =
partially to=20
Stephen=3Ds share of=20
EU=3Ds profits=20
that he assigned to SS. These issues were hotly disputed, =
and the=20
jury had substantial evidence upon which to base its rejection of=20
EU=3Ds theory=20
of the case. For example, EU argues that Stephen=3Ds claim=20
that he assigned his share of EU=3Ds profits=20
to SS was not credible because he did not assert it until his =
second=20
amended petition. The jury specifically resolved this =
credibility=20
issue in Stephen=3Ds favor in=20
its response to question 4, which EU did not challenge on appeal, =
and it=20
is the jury=3Ds province=20
to make such credibility determinations and resolve conflicts in =
the=20
evidence. See City of Keller, 168 S.W.3d at 819; =
see=20
also Wilson v. Tex. Parks & =
Wildlife=20
Dep=3Dt, 853 S.W.2d 825, 832 =
(Tex.=20
App.CAustin 1993) =
(unchallenged jury=20
findings binding on appeal), rev=3Dd on other=20
grounds, 886=20
S.W.2d 259 (Tex. 1994). Not=20
only did Stephen testify that he made these assignments orally =
during each=20
of EU=3Ds annual=20
meetings, Rodriguez and Calvin Suddeath (another long-term =
employee), both=20
of whom were present during these meetings, corroborated=20
Stephen=3Ds=20
testimony. EU also argues that SS=3Ds damages=20
evidence was unreliable because it was based in part on data =
created after=20
the lawsuit was filed. Again, the jury resolved this =
credibility=20
issue in SS=3Ds=20
favor. Stephen Parkhill, SS=3Ds economic=20
expert, testified that neither company=3Ds=20
financial data was well kept and that a majority of the financial=20
accounting had to be generated based on information available from =
SS and=20
other outside sources, such as tax returns. Parkhill =
explained that=20
he spent over 150 hours reconstructing this financial data and =
preparing=20
his damages opinions and that he believed his reconstructed data =
was=20
materially accurate and a reliable basis for his opinions. =
The jury=20
awarded, down to the penny, the breach of contract damages =
Parkhill=20
calculated, and the jury was entitled to rely on his =
testimony. =20
Finally, EU argues that Stephen controlled the flow of money from =
EU to SS=20
and thus could have transferred any money he believed was due for =
gas=20
costs at any time. Thus, according to EU, it had no control =
over the=20
transfers and cannot be liable for any deficiency. When =
Stephen made=20
these transfers, he did so on EU=3Ds behalf,=20
and when Alan learned in 2002 that Stephen had been doing so, he =
demanded=20
that both he and Stephen cease all transfers. Stephen agreed =
to=20
Alan=3Ds request,=20
effectively freezing the status quo. Moreover, after =
Parkhill made=20
his damages calculations, SS sent EU a demand letter for =
$157,613.65 for=20
gas costs, which EU refused to pay. Based on this evidence, =
the jury=20
could have reasonably concluded that EU failed to pay SS =
$157,613.65 due=20
for gas costs.
Because we=20
conclude the evidence is legally sufficient to support the=20
jury=3Ds answers=20
to questions 1 and 2, we overrule EU=3Ds first=20
issue.
C. =20
Assignment of Profits
The jury=20
answered ANo@ =
to=20
question 5, which asked, ADid [EU]=20
fail to pay one half of its annual profits to [SS]?@ In=20
its third cross-issue, SS claims that no evidence supports this =
finding=20
and that the contrary was established as a matter of law, based on =
the=20
evidence and the jury=3Ds other=20
findings. SS =
argues=20
that because (a) the total amount of money transferred between EU =
and SS=20
was undisputed and was greater than was needed to pay all the gas =
costs,=20
(b) the jury, by finding a breach of contract and awarding =
damages,=20
rejected EU=3Ds theory=20
that the transferred money was not all for gas costs, (c) the jury =
found=20
that the remaining portion of money transferred to SS did not =
constitute=20
unjust enrichment (and this finding has not been appealed), (d) =
the jury=20
found that Stephen assigned his EU profits to SS (which is also=20
unappealed), and (e) the total amount of Stephen=3Ds share of=20
EU=3Ds profits=20
was undisputed, the jury must necessarily find that EU failed to =
transfer=20
the remaining amount of Stephen=3Ds profits=20
to SS. In short, SS argues that the jury=3Ds answers=20
to the other questions mandate a finding that EU owed SS=20
Stephen=3Ds=20
remaining profits, and thus no evidence supports the =
jury=3Ds contrary=20
finding.
Though SS=20
has framed its argument as a no evidence issue, its argument is =
based on=20
the premise that the jury=3Ds answers=20
are inconsistent. See Dori v. Bondex =
Int=3Dl,=20
Inc., No.=20
11-04-00179-CV, 2006 WL 1554614, at *4 (Tex. App.CEastland=20
June 8, 2006, no pet.) (mem. op.). Texas Rule of Civil =
Procedure 295=20
provides a procedure for resolving conflicting jury answers, but =
it must=20
be invoked before the jury is discharged or any error based on =
conflicting=20
jury answers is waived. See id.; Coastal Chem Inc. =
v.=20
Brown, 35 S.W.3d 90, 99 (Tex. App.CHouston=20
[14th Dist.] 2000, pet. denied). SS did not raise this =
conflict=20
before the jury was dismissed, and therefore its issue is =
waived. =20
See Dori, 2006 WL 1554614, at *4B5 (finding=20
appellant=3Ds argument=20
that Athe=20
jury=3Ds=20
liability finding required a damage award@ =
to be=20
Aanother=20
way of saying the jury=3Ds verdict=20
contained conflicting answers@ =
and=20
concluding appellant waived issue on appeal by failing to bring =
conflict=20
challenge before jury dismissed); see also Spring Windows =
Fashions=20
Div., Inc. v. Blind Maker, Inc., 184 S.W.3d 840, 867 (Tex.=20
App.CAustin=20
2006, pet. granted, judgm=3Dt vacated=20
w.r.m.) (refusing to conduct limited sufficiency review based on=20
reconciliation of conflicting jury answers when appellant waived =
conflict=20
argument, noting A[t]o hold=20
otherwise would create an end-run around the modern error =
preservation=20
requirement that parties object to conflicting jury findings =
before the=20
jury is discharged and the sound policies that underlie that=20
requirement@). =20
Thus, we overrule SS=3Ds third=20
cross-issue.
D. =20
Attorney=3Ds=20
Fees
SS=20
presented expert testimony that it reasonably and necessarily =
incurred=20
$75,000 in attorney=3Ds fees for=20
preparation and trial and that a reasonable fee for appeal to the =
court of=20
appeals and the Texas Supreme Court would be $30,000 and $25,000=20
respectively. In question 8, the jury found $75,000 was =
reasonable=20
and necessary for attorney=3Ds fees for=20
preparation and trial but failed to find any amount for reasonable =
appellate attorney=3Ds=20
fees. The trial court entered judgment for that exact amount =
of=20
attorney=3Ds=20
fees. In its second issue, EU argues that the trial court =
erred in=20
awarding SS any attorney=3Ds=20
fees. We review a trial court=3Ds award of=20
attorney=3Ds fees for=20
an abuse of discretion. Broesche v. Jacobson, 218 =
S.W.3d 267,=20
277 (Tex. App.CHouston=20
[14th Dist.] 2007, no pet. h.). Section 38.001 of the Civil =
Practice=20
and Remedies Code provides that A[a] person=20
may recover reasonable attorney=3Ds=20
fees@ =
on a=20
claim for breach of contract. Tex. Civ. Prac. & Rem. =
Code=20
Ann. ' =
38.001(8)=20
(Vernon 1997). EU argues that SS was not entitled to=20
attorney=3Ds fees=20
because the evidence was legally insufficient to support the=20
jury=3Ds finding=20
that EU breached the service agreement. We have already =
rejected=20
this argument and concluded that the evidence is legally =
sufficient. =20
EU also=20
argues that the trial court=3Ds=20
attorney=3Ds fee=20
award was improper because SS failed to segregate the =
attorney=3Ds fees=20
expended pursuing its breach of contract claim, for which=20
attorney=3Ds fees are=20
recoverable, from those expended in proving EU owed SS money for=20
Stephen=3Ds unpaid=20
distributions that he assigned to SS, for which =
attorney=3Ds fees are=20
not recoverable. This argument is without merit. The =
Texas=20
Supreme Court recently reaffirmed the principle that Aif any=20
attorney=3Ds fees=20
relate solely to a claim for which fees are unrecoverable, a =
claimant must=20
segregate recoverable from unrecoverable fees.@ =20
Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313 =
(Tex.=20
2006). However, Awhen=20
discrete legal services advance both a recoverable and =
unrecoverable=20
claim[,] . . . they are so intertwined that they need not be =
segregated.@ =20
Id. at 313B14. =20
In this case, to prove that EU still owed SS money under the =
service=20
agreement for gas costs, even though EU had transferred more money =
to SS=20
than was needed to pay all the gas costs, SS had to prove that =
some of the=20
funds transferred from EU to SS were to pay a portion of=20
Stephen=3Ds assigned=20
profits. In other words, SS could not prevail on its breach =
of=20
contract claim without proving the existence and amount of the=20
assignment. See Broesche, 218 S.W.3d at =
277B78. =20
Thus, because SS=3Ds=20
attorney=3Ds fees=20
expended to prove the assignment issue Awere=20
necessary to recover on their contract, they are =
recoverable.@ =20
Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007). =20
Accordingly, we overrule EU=3Ds second=20
issue.
In its=20
first and second cross-issues, SS argues that the trial court =
erred in=20
failing to award it any appellate attorney=3Ds=20
fees. We agree. An award of attorney=3Ds fees=20
under section 38.001 is mandatory. See Lee v. Perez, =
120=20
S.W.3d 463, 469 (Tex. App.CHouston=20
[14th Dist.] 2003, no pet.). SS presented uncontested =
testimony that=20
$30,000 is a reasonable fee for an appeal to this court and =
$25,000 for an=20
appeal to the Texas Supreme Court. AWhile the=20
trial court had discretion to award a smaller or larger fee, it =
did not=20
have discretion to award nothing.@ =20
Id. We therefore sustain SS=3Ds first=20
and second cross-issues and modify the judgment in accordance with =
the=20
uncontested evidence. See id. at 469B70.
E. =20
Interest
The trial=20
court assessed prejudgment interest on the damages it awarded SS =
for=20
EU=3Ds breach=20
of the service agreement. In its third issue, EU argues that =
SS is=20
not entitled to interest because the evidence was insufficient to =
support=20
the jury=3Ds finding=20
that EU owed SS any money for gas costs. We have already =
determined=20
that the evidence is legally sufficient to support this finding, =
and thus=20
we overrule this issue.
=
; =
&=
nbsp; &n=
bsp;=20
III. =20
Conclusion
We conclude that =
the evidence=20
is sufficient to support the jury=3Ds finding that EU =
breached=20
its contract with SS, causing $157,613.65 in damages. SS has =
waived=20
any argument that the jury erred in failing to find that EU failed =
to pay=20
additional profits Stephen assigned to SS. We also conclude =
that SS=20
has shown it is entitled to the interest and $75,000 in=20
attorney=3Ds fees awarded by =
the trial=20
court. However, the trial court failed to award SS =
reasonable=20
attorney=3Ds fees for a =
successful=20
appeal to this court and the Texas Supreme Court. Thus, we =
modify=20
the judgment in accordance with the uncontested evidence to add =
$30,000=20
for the services of SS=3Ds attorneys in this =
successful appeal and $25,000 in the event EU makes an =
unsuccessful appeal=20
to the Texas Supreme Court, and we affirm the judgment as=20
modified.
/s/ =20
Leslie B. Yates
Justice
Judgment=20
rendered and Memorandum Opinion filed September 27, =
2007.
Panel=20
consists of Justices Yates, Seymore, and Edelman.*
* =20
Senior Justice Richard H. Edelman, sitting by =
assignment.
Though it does not label it as =
such, EU=20
appears to argue that the language of the service agreement =
stating that=20
SS would procure gas for EU=3Ds customers at cost Auntil@ EU attained $200,000 in profits =
constituted a=20
condition subsequent, the happening of which would automatically =
terminate=20
the contract. See Black=3Ds Law=20
Dictionary 312 (8th ed. =
2004)=20
(defining Acondition subsequent@ as A[a] condition that, if it occurs, will =
bring=20
something else to an end; an event the existence of which, by =
agreement of=20
the parties, discharges a duty of performance that has =
arisen@).
In its fourth cross-issue, SS =
argues the=20
evidence is also factually insufficient for the same reason. =
However, it failed to raise this issue in a motion for new trial, =
and thus=20
it is waived. See Tex. R. Civ. P. =
324(b)(2);=20
Halim, 203 S.W.3d at=20
487.