UPS v. Cengis Tasdemiroglu

• Court: Court of Appeals of Texas
• Citation: 25 S.W.3d 914
• Parties: <!--25 S.W.3d 914 (Tex.App.-Houston 2000) UNITED PARCEL SERVICE, INC., Appellant V. CENGIS TASDEMIROGLU D/B/A CTC COMPUTERS, Appellee NO. 14-98-01280-CV In The Fourteenth Court of Appeals
• Decision Date: 10 August 2000

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25 S.W.3d 914 (Tex.App.-Houston [14th Dist.] 2000) UNITED PARCEL SERVICE, INC., Appellant
V.
CENGIS TASDEMIROGLU D/B/A CTC COMPUTERS, Appellee NO. 14-98-01280-CV In The Fourteenth Court of Appeals August 10, 2000.

On Appeal from the County Court at Law No. 2 Harris County, Texas Trial Court Cause No. 662093

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Panel consists of Justices Cannon, Draughn, and Lee.^*

O P I N I O N

JOE L. DRAUGHN, Justice(Assigned).

United Parcel Service, Inc. (UPS) brings this appeal from a suit in which it stipulated breach of contract and actual damages and in which the jury awarded appellee, Cengis Tasdemiroglu d/b/a CTC Computers (CTC), $39, 791.35 in attorneys' fees. In its sole point of error, UPS contends that the Federal Aviation Administration Authorization Act (FAAAA) preempts CTC's claim for attorneys' fees. Because we hold that UPS failed to preserve error to review the award of attorneys' fees to CTC, we affirm the judgment of the trial court.

BACKGROUND

CTC shipped a computer via UPS from Spring, Texas to a customer in Sanderson, Texas and declared that the value of the shipment was $8,000. When the computer arrived at the customer's address, it had been damaged beyond repair. CTC eventually sued UPS on a number of grounds, including breach of contract. Four years after the shipment, UPS finally stipulated that it had breached its contract with CTC and that actual damages were $8,000. Despite the years of legal fees that CTC had accrued, UPS maintained that federal law disallowed CTC's claim for attorneys' fees. The trial court denied UPS's motion for summary judgment on CTC's attorneys' fees.¹ At trial several months later, the sole issue for the jury was the amount of reasonable and necessary attorneys' fees

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for CTC's breach of contract claim. The jury awarded $39,796.35.

PRESERVATION OF ERROR

We first address CTC's contention that UPS is impermissibly appealing the denial of its motion for summary judgment. The general rule is that a denial of a summary judgment cannot be reviewed on appeal. See Cincinnati Life Ins. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996). Further, where a motion for summary judgment is denied by the trial judge and the case is tried on its merits, the order denying the summary judgment cannot be reviewed on appeal. See Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966).² The party's remedy is to assign error to the trial court's judgment ultimately rendered following trial on the merits. See Turner v. County of Marion, 549 S.W.2d 254, 255 (Tex. App.-Texarkana 1977, writ dism'd).

UPS responds that it is appealing from a final judgment, not its motion for summary judgment.³ The question thus becomes whether it preserved error to complain about the final judgment on appeal. To preserve error for a no evidence or a matter of law point of error, the appellant must raise the issue through one of the following: (1) a motion for directed verdict; (2) a motion for judgment notwithstanding the verdict;⁴ (3) an objection to the submission of the question to the jury; (4) a motion to disregard the jury's answer to a vital fact question; or (5) a motion for new trial. See Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991).⁵ UPS did none of these things. Despite its contention that it "consistently and repeatedly made its position on preemption clear to the trial court," UPS failed to do so in trial and in a manner that preserves error for appeal.

UPS nonetheless argues that the trial court's order denying its summary judgment was unequivocal and that it should not have to argue the legal issue of preemption to the jury. This argument is unpersuasive. First, in none of the five methods to preserve error does a party argue its legal position to the jury. Second, there are other instances in the law where a judge's legal ruling seems conclusive to a party, but the party must re-urge its position to preserve error for appeal. See, e.g., Clark v. Trailways, Inc., 774 S.W.2d 644, 647 (Tex. 1989) (pretrial motion for sanctions, which trial court denied, failed to preserve error when court permitted undisclosed witness to testify; party must object to testimony at trial to preserve error); State v. Baker, 574 S.W.2d 63, 65 (Tex. 1978) (running objection

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preserves error regarding repeated offer or admission of evidence); Hartford Accident & Indem. Co. v. McCardell, 369 S.W.2d 331, 335 (Tex.1963) (if motion in limine is overruled, to preserve error, party must object when question is asked or...