Leonard & Harral Packing Co. v. Ward

• Decision Date: 17 August 1994
• Docket Number: No. 10-93-263-CV,10-93-263-CV
• Citation: 883 S.W.2d 337
• Parties: LEONARD & HARRAL PACKING COMPANY d/b/a L & H Packing Company, Appellant, v. Ivan WARD d/b/a/ Ward Feed Yard, Appellee.
• Court: Texas Court of Appeals

Page 337

883 S.W.2d 337

LEONARD & HARRAL PACKING COMPANY d/b/a L & H Packing

Company, Appellant, v. Ivan WARD d/b/a/ Ward Feed Yard, Appellee.

No. 10-93-263-CV.

Court of Appeals of Texas,

Waco.

Aug. 17, 1994.

Rehearing Denied Sept. 14, 1994.

Don McManus, San Antonio (Michael Shearn, of counsel), for appellant.

Charles Buenger, Kathleen French Dow, Waco, for appellee.

Before THOMAS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

THOMAS, Chief Justice.

Leonard & Harral Packing Company (L & H) appeals from a judgment awarding Ivan Ward actual damages of $29,218.80, additional damages of $37,523.50, prejudgment and postjudgment interest, and up to $14,100 in attorney's fees in a suit for damages to cattle owned by Ward while L & H was transporting them to Louisiana. In twenty-three points of error, L & H attacks the sufficiency of the evidence to support the judgment, complains that the court allowed Ward to testify in a narrative form and that it was injured by Ward's impermissible jury argument, alleges that the judgment is excessive, that the court awarded interest at an incorrect rate and on portions of the judgment not subject to interest, and that the award of attorney's fees is not supported by the record. We will affirm.

In January 1991, L & H transported two shipments of 100 calves each from Ward's feedlot in China Spring, Texas, to Crawford Meat Company in Franklinton, Louisiana. Crawford had offered Ward $1.45 a pound for the cattle "on the rail," i.e., after butchering. The first shipment contained two dead calves and the second shipment contained three dead calves upon arrival at Crawford's plant. According to Ward, the remainder of the calves were so severely bruised that Crawford was unable to use the meat in the intended manner. Because of the damaged condition of the meat, Crawford lowered the price to $1.00 a pound, and Ward accepted the reduced amount.

Ward notified L & H that he held it responsible for the damages to the cattle and demanded compensation. After L & H rejected his demands, Ward filed suit alleging breach of contract, negligence, and knowing violations of the Deceptive Trade Practices Act (DTPA). See TEX.BUS. & COM.CODE ANN. § 17.50(a) (Vernon 1987). The jury found that L & H knowingly breached a warranty of good and workmanlike performance, that the breach was a producing cause of Ward's damages, that L & H was negligent, and that L & H breached an agreement to ship the calves in "good condition." Ward moved for a judgment on the verdict, and L & H moved for a judgment notwithstanding the verdict. The court denied L & H's motion and rendered a judgment in accordance with the jury's verdict.

SUFFICIENCY OF THE EVIDENCE

In multiple points of error, L & H attacks the sufficiency of the evidence to support the judgment. When both "legally insufficient evidence" and "factually insufficient evidence" complaints are raised, the appellate court addresses the "legally insufficient evidence" argument first. See Glover v. Texas Gen.Indem.Co., 619 S.W.2d 400, 401 (Tex.1981). To determine a legally-insufficient-evidence challenge, we view the evidence in the light which tends to support the jury's findings and disregard all evidence and inferences to the contrary. See Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992). If there is no evidence or merely a scintilla of evidence to support the jury's findings, we will sustain the challenge. See Juliette Fowler Homes v. Welch Associates, 793 S.W.2d 660, 666 n. 9 (Tex.1990); Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). In reviewing L & H's factual-insufficiency claims, we consider all of the evidence and determine if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986).

DTPA Theory

We will consider L & H's attack on Ward's DTPA theory first. Ward pled that L & H breached an implied warranty of good and workmanlike performance of a service contract. See TEX.BUS. & COM.CODE ANN. § 17.50(a)(2); Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349 (Tex.1987). The jury found that:

1. L & H failed to perform the services in a good and workmanlike manner;

2. The failure was a producing cause of Ward's damages;

3. The amount of Ward's damages was $29,218.80;

4. L & H knowingly engaged in the wrongful conduct;

5. Ward was entitled to additional damages of $36,523.50.

Generally, to recover under the DTPA on breach of a warranty, the plaintiff must show (1) he is a consumer, (2) existence of the warranty, (3) breach of the warranty, and (4) the breach was a producing cause of damages. See McDade v. Texas Commerce Bank, Nat. Ass'n, 822 S.W.2d 713, 718 (Tex.App.--Houston [1st Dist.] 1991, writ denied). However, a warranty of good and workmanlike performance of a service contract can arise as a matter of law; thus, the existence of an implied warranty in a particular transaction may be a question of law for the court to determine. See Melody Home, 741 S.W.2d at 352-55; First American Title Ins. Co. v. Adams, 829 S.W.2d 356, 364 (Tex.App.--Corpus Christi 1992, writ denied).

Point eight attacks the jury's finding that L & H failed to perform the services in a good and workmanlike manner. In the argument under point eight, L & H presents three separate contentions. L & H first alleges that there is no evidence of an express warranty of good and workmanlike performance. L & H then argues that an implied warranty of good and workmanlike performance could not arise because L & H was not modifying or repairing existing tangible goods. See Melody Home, 741 S.W.2d at 354. Finally, L & H complains that the jury was not required to determine if Ward was a consumer for DTPA purposes.

Disposing of the last argument first, L & H stipulated during the charge conference that Ward was a consumer and agreed that the issue need not be submitted to the jury. Additionally, the question of consumer status is a question of law for the court to decide, unless there is a dispute concerning the factual issues that create a consumer status. See 3Z Corp. v. Stewart Title Guar. Co., 851 S.W.2d 933, 937 (Tex.App.--Beaumont 1993, writ denied). If the facts are disputed, the jury is called upon to resolve the factual issues, but the court still must decide the legal effect of the resolved issues. See id. Thus, the argument concerning the lack of a jury finding on consumer status is erroneous.

Ordinarily, the question of the existence of an express warranty is an issue of fact to be determined by the jury. See McDade, 822 S.W.2d at 718. L & H did not object to the absence of an issue on the existence of an express warranty. Thus, we can deem such a finding in support of the judgment if there is legally and factually sufficient evidence to support a finding of an express warranty of good and workmanlike performance. See TEX.R.CIV.P. 279; Ramos v. Frito-Lay, Inc., 784 S.W.2d 667, 668 (Tex.1990).

Ward testified that L & H is known to be a common carrier of cattle. According to Ward, L & H represented that "they could handle the cattle and take care of them and all that sort of thing." Additionally, Ward claimed that L & H "[s]aid they knew what they were doing." On cross-examination, Ward stated that he believed that L & H warranted "[t]hat they were capable of hauling calves in a workmanlike manner and knew what they were doing and would take care of them and not damage them."

"We define good and workmanlike as that quality of work performed by one who has the knowledge, training, or experience necessary for the successful practice of a trade or occupation and performed in a manner generally considered proficient by those capable of judging such work." Melody Home, 741 S.W.2d at 354. Ward's testimony that L & H said it could handle the cattle and take care of them and knew what it was doing in transporting the calves is legally sufficient evidence to support a deemed finding of an express warranty to perform the transportation service in a good and workmanlike manner. See S.I. Property Owners' Ass'n v. Pabst Corp., 714 S.W.2d 358, 361 (Tex.App.--Corpus Christi 1986, writ ref'd n.r.e.). There is no evidence to contradict Ward's testimony concerning L & H's representations as to its ability to safely transport the calves to Louisiana; thus, the finding of the warranty is not so against the great weight of the evidence as to be manifestly unjust. Because the evidence is legally and factually sufficient to support the existence of an express warranty, we deem such a finding in support of the judgment. See TEX.R.CIV.P. 279. Thus, we need not consider whether an implied warranty arises in this type of transaction as a matter of law. Point eight is overruled.

In point eleven, L & H challenges the jury's finding that its conduct was a producing cause of damages to Ward. Again, L & H places a variety of arguments under the insufficient-evidence heading of the point. We focus, however, on the point of error and will examine the evidence to determine if it supports the finding that L & H's conduct was a producing cause of Ward's damages.

Ward testified that the 200 calves shipped by L & H had been fed in his feedlot for approximately 120 days prior to shipping. He claimed that he "eyeballed every one" of the calves that were shipped when he was sorting and loading them onto the L & H trucks. Ward testified that none of the calves were "founders," "junkers," "outcasts," or "bloated." According to Ward, when the calves left his feedlot, they were all "fat, finished calves." He asserted that the calves "had done nothing to get bruised" prior to leaving his feedlot.

Ward testified that he had shipped calves by twenty or twenty-five different trucking companies. He stated that he "never" before had problems such as he had with these two shipments.

Timmy Crawford, the owner of Crawford Meat Packing Company, testified on Ward's behalf. Crawford testified...