B&W Supply, Inc. v. Beckman (Tex.App.- Houston [1st Dist.] Apr. 9, 2009)(Keyes)
Before Justices Jennings, Keyes and Higley
01-07-00574-CV B & W Supply, Inc. and Weston Wyatt v. Lawrence and Diane Beckman
Appeal from 215th District Court of Harris County
Trial Court
Judge: Hon. Levi J. Benton  

305 S.W.3d 10 (2009)
B & W SUPPLY, INC. and Weston Wyatt, Individually, Appellants,
Lawrence and Diane BECKMAN, Appellees.

No. 01-07-00574-CV.
Court of Appeals of Texas, Houston (1st Dist.).

April 9, 2009.
14*14 David W. Holman, The Holman Law Firm, P.C., Jeffrey J. Messock, Messock & Walton, Houston,
TX, for Appellants.

Lionel M. Schooler, Jason T. Martin, Jackson Walker, LLP, Houston, TX, for Appellees.

Panel consists of Justices JENNINGS, KEYES, and HIGLEY.



In this breach of contract suit, appellants, B & W Supply, Inc. and Weston Wyatt, Individually (collectively
referred to as B & W) challenge the trial court's order granting judgment notwithstanding the verdict
(JNOV) in favor of appellees, Lawrence and Diane Beckman. In three issues on appeal, B & W argues
that the trial court improperly granted the Beckmans' JNOV when evidence existed to support the jury's
findings that (1) the Beckmans breached the contract; (2) B & W Supply was entitled to lost profits; and
(3) B & W Supply was entitled to reasonable and necessary attorney's fees. In their cross-appeal, the
Beckmans argue that the trial court erred in (1) disregarding the jury's response excusing B & W's
breach because the evidence at trial was legally insufficient to support a finding that B & W was excused
from its obligation to perform the contract and (2) not submitting their DTPA claim to the jury.

We reverse the JNOV.


B & W and the Beckmans entered into a contract for B & W to perform remodeling work in several rooms
of the Beckmans' home for $60,000. The contract called for various progress payments throughout the
project. By January 9, 2006, the Beckmans had paid B & W $30,000 and half of the project remained to
be finished. Around this time a dispute arose leading B & W to cease all work on the project. The
Beckmans sued B & W for breach of contract, Deceptive Trade Practices Act[1] violations, conversion,
breach of fiduciary duty, violations of Chapter 162 of the Texas Property Code,[2] and attorney's fees. B
& W counterclaimed for lost profits. The parties presented conflicting evidence on whether the
Beckmans fired B & W or whether B & W walked off the job.

At the conclusion of the trial, the jury found (1) in questions one and two that B & W failed to perform the
contract but that such failure was excused; (2) in questions three and four that the Beckmans failed to
perform the contract and that such failure was not excused; (3) in question 15*15 six that B & W was
entitled to $9,000 in damages; and (4) in question eight that B & W was entitled to attorney's fees in the
amounts of (a) $25,000 for trial, (b) $12,500 for an appeal to the court of appeals, and (c) $10,000 to
an appeal to the Supreme Court of Texas.

B & W filed a motion to enter judgment on the verdict, and the Beckmans filed a motion for JNOV
contending that "B & W did not offer legally sufficient evidence of its cost of completion, or even
consider or present evidence about the actual expenses it had incurred to date." The Beckmans also
contended that B & W had presented legally insufficient evidence that the Beckmans breached the
contract and no evidence that B & W was excused from performance.

In its final judgment, the trial court granted in part the Beckmans' motion for JNOV and denied B & W's
motion to enter judgment on the verdict. The trial court disregarded the jury's answers to questions
three (the Beckmans' breach), six (B & W's lost profit damages), and eight (B & W's attorney's fees),
and held that B & W would take nothing from the Beckmans on B & W's counterclaim, that the Beckmans
would take nothing from B & W, and that each party would pay its attorney's fees. Both parties filed a
notice of appeal.


A trial court may disregard a jury's findings and grant a motion for judgment notwithstanding the verdict
only when a directed verdict would have been proper. See TEX.R. CIV. P. 301; Fort Bend County
Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.1991); see also Prudential Ins. Co. v. Fin. Review
Servs., Inc., 29 S.W.3d 74, 77 (Tex.2000) (directed verdict proper only when evidence conclusively
establishes right of movant to judgment or negates right of opponent or evidence is insufficient to raise
material fact issue); Cain v. Pruett, 938 S.W.2d 152, 160 (Tex. App.-Dallas 1996, no writ) (directed
verdict proper when evidence reflects that no other verdict can be rendered and moving party is entitled
to judgment as a matter of law). A JNOV should be granted when the evidence is conclusive and one
party is entitled to recover as a matter of law or when a legal principle precludes recovery. Morrell v.
Finke, 184 S.W.3d 257, 290 (Tex.App.-Fort Worth 2005, pet. denied); see also United Parcel Serv., Inc.
v. Tasdemiroglu, 25 S.W.3d 914, 916 n. 4 (Tex. App.-Houston [14th Dist.] 2000, pet. denied) ("A court
should grant a motion for judgment notwithstanding the verdict if a legal principle prevents a party from
prevailing on its claim.").

An appellate court reviews a JNOV under a no-evidence standard of review. See Garton v. Rockett, 190
S.W.3d 139, 144 (Tex.App.-Houston [1st Dist.] 2005, no pet.). That is, we will affirm only if there is no
evidence to support an issue, or conversely, if the evidence establishes an issue as a matter of law. See
Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990); Garton, 190 S.W.3d at 144. To
determine whether there is no evidence to support the jury's finding, "we must view the evidence in a
light that tends to support the finding of disputed fact and disregard all evidence and inferences to the
contrary." Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.2003). If more than a scintilla of
evidence supports the jury's finding, "the jury's verdict, and not the trial court's judgment must be
upheld." Id. More than a scintilla of evidence exists when the evidence "rises to a level that would enable
reasonable and fair-minded people to differ in their conclusions." Ford Motor Co. v. Ridgway, 135
S.W.3d 598, 601 (Tex.2004) (quoting Merrell Dow Pharm., Inc. v. Havner, 953 16*16 S.W.2d 706, 711
(Tex.1997)). Evidence that is "so weak as to do no more than create a mere surmise," however, is no
more than a scintilla and, thus, no evidence. Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63