Sportscapers Construction, Inc. and Roderick Thompson v. Evelyn M. Mitchell and Douglas Brown

ACCEPTED

01-17-00432-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

3/20/2018 2:03 PM

CHRISTOPHER PRINE

CLERK

No. 01-17-00432-CV

IN THE COURT OF APPEALS 1st COURTFILED IN

OF APPEALS

FOR THE FIRST DISTRICT OF TEXAS,HOUSTON, TEXAS

HOUSTON, TEXAS 3/20/2018 2:03:13 PM

CHRISTOPHER A. PRINE

Clerk

SPORTSCAPERS CONSTRUCTION, INC.

AND RODERICK THOMPSON,

Defendants and Appellants

v.

EVELYN M. MITCHELL AND DOUGLAS BROWN,

Plaintiffs and Appellees

On Appeal from the 400th District Court

of Fort Bend County, Texas

APPELLEES’ RESPONSE BRIEF

BURFORD PERRY, LLP

Shawn A. Johnson

State Bar No. 24097056

Robert R. Burford

State Bar No. 03371700

909 Fannin St., Suite 2630

Houston, Texas 77010

Telephone: (713) 401-9790

Facsimile: (713) 993-7739

sjohnson@burfordperry.com

rburford@burfordperry.com

ATTORNEYS FOR APPELLEES

ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

Appellees include the following because Appellants’ Brief does not

include the required information. Tex. R. App. P. 38.1(a), 38.2(a)(1)(A).

Appellants: Sportscapers Construction, Inc. and Roderick

Thompson

Trial and Appellate Counsel:

Troy Tindal

State Bar No. 24066198

17225 El Camino Real, Suite 190

Houston, Texas 77058

troy@tindallawfirm.com

Appellees: Evelyn M. Mitchell and Douglas Brown

Trial Counsel:

Michael V. Brophy

State Bar No. 03082630

12946 Dairy Ashford, Suite 370

Sugar Land, Texas 77478

mike@brophylawfirm.com

Appellate Counsel:

Shawn A. Johnson

State Bar No. 24097056

Robert R. Burford

State Bar No. 03371700

909 Fannin St., Suite 2630

Houston, Texas 77010

sjohnson@burfordperry.com

rburford@burfordperry.com

ii

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ...........................................................ii

TABLE OF CONTENTS ................................................................................. iii

TABLE OF AUTHORITIES.............................................................................. vi

STATEMENT OF THE CASE ............................................................................ 1

STATEMENT ON ORAL ARGUMENT................................................................ 2

REPLY TO ISSUES PRESENTED AND CROSS-POINTS....................................... 2

STATEMENT OF FACTS ................................................................................. 3

I. Appellees sign a contract containing a no-cause termination

provision, under which Appellants agreed to construct a tennis court on

Appellees’ property to their specifications and in a good and

workmanlike manner for $85,000, with half the balance due up front. 4

II. After Appellants commence work, Appellees quickly lose

confidence in Appellants’ ability to perform in a good and workmanlike

manner and ask that all work stop while they get the project back on

track. When all the issues appear to be resolved, Appellants demand

that Appellees modify the agreement by signing waivers of certain

contractual terms. When Appellees refuse, Appellants turn the matter

over to their attorney. ............................................................................. 7

III. Appellees request a refund of their deposit after terminating the

contract, and Appellants and their attorney go silent, forcing Appellees

to file suit. ............................................................................................... 9

IV. The lawsuit proceeds to a four-day jury trial, in which

Appellants’ counsel engages in a remarkable display of gamesmanship,

deceit, and improper jury argument, and the jury finds that neither

party breached the contract without reaching the damages questions

that had been conditioned on a finding of breach. ............................... 11

V. Appellants move for a take-nothing judgment, which the trial

court later denies. ................................................................................. 16

iii

VI. Appellees file a combined motion for judgment, motion for

judgment notwithstanding the verdict, and motion for new trial, asking

that the court apply the plain language of the contract and award

Appellees their $42,500 deposit, less the “charges” Sportscapers

incurred prior to their termination of the contract.............................. 17

VII. The trial court grants Appellees’ motion for judgment

notwithstanding the verdict and, four days later, enters a final

judgment awarding Appellees $25,000, “representing the sums actually

paid to Defendant Sportscapers Construction, Inc., by the Plaintiffs

herein, less the sums charged by Defendant Sportscapers Construction,

Inc. for the services it rendered prior to the lawful termination of its

services.” ............................................................................................... 19

SUMMARY OF THE ARGUMENT ................................................................... 20

ARGUMENT................................................................................................ 24

I. Appellants waived error as to the propriety of the trial court’s

decision to grant Appellees’ motion for judgment notwithstanding the

verdict by failing to produce an adequate appellate record for this

Court’s consideration. ........................................................................... 24

II. In any event, the record conclusively establishes that Appellants

breached the contract by failing to comply with the termination

provision when Appellants refused to refund Appellees’ $42,500

deposit, less the “charges” Sportscapers incurred prior to Appellees’

lawful exercise of their right to terminate the contract. ..................... 28

III. Appellants ask this Court to disregard the well-established

standard for reviewing a trial court’s entry of a judgment

notwithstanding the verdict and ignore that an appellate court must

affirm the judgment even if the trial court’s rationale is erroneous when

the judgment can be supported on a basis presented in the motion. .. 29

IV. Appellants are simply postponing the inevitable to further delay

Appellees’ recovery and force Appellees to incur additional attorneys’

fees recovering funds that unquestionably belong to them. ................ 38

PRAYER ..................................................................................................... 39

iv

CERTIFICATE OF COMPLIANCE ................................................................... 40

CERTIFICATE OF SERVICE .......................................................................... 40

RULE 38 APPENDIX ................................................................................... 41

v

TABLE OF AUTHORITIES

Cases

B & W Supply, Inc. v. Beckman, 305 S.W.3d 10 (Tex. App.—Houston [1st

Dist.] 2009, pet. denied)........................................................................ 24

Bekins Moving & Storage Co. v. Williams, 947 S.W.2d 568 (Tex. App.—

Texarkana 1997, no writ) ............................................................... 31, 35

Cavazos v. Cintron, No. 13-04-00529-CV, 2006 WL 1766189 (Tex. App.—

Corpus Christi–Edinburg June 29, 2006, no pet.) (mem. op.) ............. 32

Christiansen v. Prezelski, 782 S.W.2d 842 (Tex. 1990) .......................... 26

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005).............................. 25

Cmty. Health Sys. Prof’l Services Corp. v. Hansen, 525 S.W.3d 671 (Tex.

2017)........................................................................................................ 6

Curry v. Texas Dep’t of Pub. Safety, 472 S.W.3d 346 (Tex. App.—Houston

[1st Dist.] 2015, no pet.) ....................................................................... 26

Donahoe v. Jones, No. 01-15-00191-CV, 2016 WL 796892 (Tex. App.—

Houston [1st Dist.] Mar. 1, 2015, no pet.) ............................................ 26

Englander Co. v. Kennedy, 428 S.W.2d 806 (Tex. 1968) ........................ 26

Enterprise Leasing Co. of Houston v. Barrios, 156 S.W.3d 547 (Tex. 2004)

............................................................................................................... 25

Fisher v. Evans, 853 S.W.2d 839 (Tex. App.—Waco 1993, writ denied) 27

Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338 (Tex. 2015) ... 25

Guar. Cty. Mut. Ins. Co. v. Reyna, 709 S.W.2d 647 (Tex. 1986) (per

curiam) ............................................................................................ 30, 35

Guerra v. Flores, No. 13-15-00533-CV, 2017 WL 4837849 (Tex. App.—

Corpus Christi–Edinburg Oct. 26, 2017, no pet.) (mem. op.) .............. 27

Gulf Land Co. v. Atl. Refining Co., 131 S.W.2d 73 (Tex. 1939).............. 31

vi

Gulf Liquids New River Project, LLC v. Gulsby Eng’g, Inc., 356 S.W.3d

54 (Tex. App.—Houston [1st Dist.] 2011, no pet.) ................................. 6

Kwik Wash Laundries, Inc. v. McIntyre, 840 S.W.2d 739 (Tex. App.—

Austin 1992, no writ) ...................................................................... 26, 27

Lesher v. Doescher, No. 02-12-00360-CV, 2013 WL 5593608 (Tex. App.—

Fort Worth Oct. 10, 2013, pet. denied) (mem. op.)............................... 32

Mercedes Dusting Serv., Inc. v. Evans, 353 S.W.2d 894 (Tex. Civ. App.—

San Antonio 1962, no writ) ................................................................... 31

Nicholson v. Fifth Third Bank, 226 S.W.3d 581 (Tex. App.—Houston [1st

Dist.] 2007, no pet.)............................................................................... 26

Rogers v. Rogers, No. 01‐15‐00224‐CV, 2016 WL 3162299 (Tex. App.—

Houston [1st Dist.] June 2, 2016, no pet. h.) (mem. op.) ..................... 25

Shell Oil Products Co. v. Main St. Ventures, L.L.C., 90 S.W.3d 375 (Tex.

App.—Dallas 2002, pet. dism’d by agr.) ............................................... 36

Smitherman v. Comm’n for Lawyer Discipline, 463 S.W.3d 97 (Tex.

App.—Houston [1st Dist.] 2015, pet denied) ........................... 33, 34, 35

Speck v. Dry Bones Coffee House, No. 01-09-00605-CV, 2009 WL 4358039

(Tex. App.—Houston [1st Dist.] Dec. 3, 2009, no pet.) (mem. op.) .... 31,

35, 36

Taco Cabana, Inc. v. Exxon Corp., 5 S.W.3d 773 (Tex. App.—Houston

[14th Dist.] 1999, pet. denied) ........................................................ 32, 35

Tex. Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.3d 276

(Tex. 1994) ............................................................................................ 12

Tiller v. McLure, 121 S.W.3d 709 (Tex. 2003) ........................................ 24

Ulico Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773 (Tex. 2008) ......... 36

Vandever v. Goettee, 678 S.W.2d 630 (Tex. App.—Houston [14th Dist.]

1984, writ ref’d n.r.e.) ..................................................................... 33, 35

vii

Wallis v. United Servs. Auto. Ass’n, 2 S.W.3d 300 (Tex. App.—San

Antonio 1999, pet. denied) .................................................................... 31

Wilson v. State, No. 09-07-00589-CR, 2008 WL 5501146 (Tex. App.—

Beaumont Jan. 14, 2009, no pet.) (mem. op.) (not designated for

publication) ........................................................................................... 35

Rules

Tex. R. App. P. 34.6 ................................................................................. 27

Tex. R. App. P. 38.1 ................................................................................... 4

Tex. R. App. P. 38.2 ............................................................................... 2, 4

Tex. R. App. P. 44.1 ................................................................................. 32

Tex. R. Civ. P. 301 ................................................................................... 24

viii

STATEMENT OF THE CASE

This is a breach-of-contract suit by residential property owners who

seek a refund of their $42,500 deposit paid to the defendants for the

installation of a tennis court, less the charges the defendants incurred

before the property owners terminated the contract, as allowed by the

contract’s clear terms. Before, during, and after the trial, the defendants

consistently argued that $15,474 of charges were incurred prior to the

contract’s termination. The jury found that neither party breached the

contract without reaching questions on damages. CR 120.

The trial court granted the property owners’ motion for judgment

notwithstanding the verdict and awarded them $25,000, “representing

the sums actually paid to Defendant Sportscapers Construction, Inc., by

the Plaintiffs herein, less the sums charged by Defendant Sportscapers

Construction, Inc. for the services it rendered prior to the lawful

termination of its services.” CR 112.

On appeal, the defendants argue the trial court used the wrong

legal standard when it disregarded the jury’s verdict. However, the

defendants ignore the standard by which appellate courts review a

1

judgment notwithstanding the verdict and failed to provide an adequate

appellate record showing error requiring reversal.

STATEMENT ON ORAL ARGUMENT

Appellees respectfully request that the Court grant oral argument

in this appeal. Appellants ask this Court to depart from well-established

standards regarding Appellants’ burden to furnish the Court with an

adequate record showing reversible error and disregard the standard by

which appellate courts review a trial court’s decision to grant a judgment

notwithstanding the verdict. Oral argument would aid the Court’s

decisional process by allowing the Court to explore with counsel the

implications of Appellants’ request for a dramatic change in the law.

Furthermore, oral argument will provide Appellees’ counsel invaluable

experience, having become licensed in November 2016.

REPLY TO ISSUES PRESENTED AND CROSS-POINTS

Appellees disagree with Appellants’ statement of the issues

presented and therefore provide the following. Tex. R. App. P.

38.2(a)(1)(B). Additionally, Appellees bring cross-points pursuant to Tex.

R. App. P. 38.2(b)(1).

Issue 1: Did Appellants waive error as to the propriety of the trial

court’s decision to grant Appellees’ motion for judgment

2

notwithstanding the verdict by failing to produce an adequate

appellate record for this Court’s consideration?

Issue 2: Does the record demonstrate that Appellants breached the

parties’ contract by failing to comply with the termination provision

when Appellants refused to refund Appellees’ $42,500 deposit, less

the charges Sportscapers incurred prior to Appellees’ lawful

exercise of their right to terminate the contract?

Issues 3: Do Appellants ask this Court to disregard the well-

established standard of review of a trial court’s entry of a judgment

notwithstanding the verdict and ignore that an appellate court may

affirm the judgment even if the trial court’s rationale for granting

the motion is erroneous when the trial court’s decision can be

supported on another basis presented to the trial court?

Issue 4: Even if the trial court’s final judgment recites an incorrect

legal standard, is the purported error rendered harmless when the

motion and judgment are considered in full?

Issue 5 [Cross-Point]: Does the record—including Appellants’

own admissions that Appellees are entitled to a refund of at least

$27,000—conclusively establish that Appellants breached the

contract by refusing to refund the undisputed portion of Appellees’

deposit, such that the jury’s finding that Sportscapers did not

breach the contract is unsupported by any evidence and against the

overwhelming preponderance of the evidence?

Issue 6 [Cross-Point]: Should the jury’s verdict be set aside

because of improper argument of Appellants’ counsel?

STATEMENT OF FACTS

Appellees object to Appellants’ Statement of the Facts because it

contains multiple misrepresentations, is incomplete, and is not supported

by references to the appellate record with respect to the facts most

3

relevant to this appeal. Tex. R. App. P. 38.1(g), 38.2(a)(1)(B). Appellants’

Brief also fails to mention the gamesmanship and improper jury

argument by their trial counsel, which ultimately resulted in a jury

verdict supported by absolutely no evidence.

I. Appellees sign a contract containing a no-cause termination

provision, under which Appellants agreed to construct a

tennis court on Appellees’ property to their specifications

and in a good and workmanlike manner for $85,000, with

half the balance due up front.

On August 1, 2015, Appellees and Appellants entered into a

“Construction Contract” that called for Appellants to build “in a neat,

first class, good and workmanlike manner, and in strict compliance with

the Contract Documents” a tennis court on Appellees’ property. CR 16; 3

Supp. RR 5 (Pls. Ex. 1). All the negotiations with Appellees were

conducted by and through Roderick Thompson, the owner and operator

of Sportscapers Construction, Inc. CR 8; see also Appendix A (certified

records from the Texas Secretary of State reflecting that Thompson is the

owner and registered agent of Sportscapers Construction, Inc.).

The parties agreed that Appellees would pay $85,000 for the

installation of the tennis court, to be paid as follows: $42,500 before work

began, $34,000 upon completion of the concrete pour, and $8,500 within

4

five days of substantial completion of the project. CR 16; 3 Supp. RR 5

(Pls. Ex. 1). Further, the parties agreed that all components and

materials would remain Appellants’ property until final payment was

made. CR 9, 3 Supp. RR 6 (Pls. Ex. 1). The parties also agreed that

Appellants would “reasonably clean up the work site and access area”

upon completion of the work at Appellees’ property. CR 17; 3 Supp. RR 7

(Pls. Ex. 1). And most importantly, the parties’ contract included the

following termination provisions:

21. Termination by Sportscapers. Sportscapers has the

right to terminate this Agreement at any time and to be paid

the reasonable value of Work thus far performed.

22. Termination by Owner. In the event the Owner

terminates the Agreement, the Owner shall be legally

responsible to pay Sportscapers for the charges up to and

including the date of such termination, regardless of

whether the Owner has received an Invoice for such Charges

prior to such termination. 1

CR 18 (emphasis added); 3 Supp. RR 8 (Pls. Ex. 1). The contract does not

define the term “charges.” However, the potential ambiguity is

immaterial to this appeal because Appellants claim only $15,474 in

“charges,” and Appellees do not challenge this amount on appeal.

1 The contract also provided Appellees the right to cancel the contract at any time

within three business days by delivering written notice to Sportscapers. 3 Supp. RR

6 (Pls. Ex. 1).

5

Paragraphs 21 and 22 of the contract are undoubtedly no-cause

termination provisions, also referred to as termination for convenience

clauses. As the Supreme Court of Texas recently explained: a no-cause

termination can be premised on any reason, or no reason at all, and can

be accomplished simply by providing notice and, if applicable, the

contractual “penalty” or liquidated-damages payment. Cmty. Health Sys.

Prof’l Services Corp. v. Hansen, 525 S.W.3d 671, 683 (Tex. 2017). Here,

Appellees could terminate the agreement for any or no reason, but the

“penalty” (or liquidated damages) was that Appellees would have “to pay

Sportscapers for the charges up to and including the date of such

termination.” See, e.g., Gulf Liquids New River Project, LLC v. Gulsby

Eng’g, Inc., 356 S.W.3d 54, 68 (Tex. App.—Houston [1st Dist.] 2011, no

pet.) (analyzing a termination for convenience clause and explaining that

such a clause “limits the contractor’s damages to those specified”).

On August 1, 2015, consistent with their contractual obligations,

each Appellee tendered to Thompson two checks in the amount of $21,250

(totaling $42,500) made out to Sportscapers, which were deposited on

August 3. CR 9.

6

II. After Appellants commence work, Appellees quickly lose

confidence in Appellants’ ability to perform in a good and

workmanlike manner and ask that all work stop while they

get the project back on track. When all the issues appear to

be resolved, Appellants demand that Appellees modify the

agreement by signing waivers of certain contractual terms.

When Appellees refuse, Appellants turn the matter over to

their attorney.

On or about August 10, 2017, Sportscapers’ crews came out to

Appellees’ home to begin the construction. CR 9; 3 Supp. RR 10 (Pls. Ex.

3). At the end of that day, Appellees noted that Sportscapers’ had:

(1) failed to perform site preparation activities that were

standard in the industry, which they had actually discussed

with Thompson and the community developer, despite the fact

that the developer had expressed concerns about local soil

conditions in a preliminary meeting in July 2015;

(2) failed to identify utilities, and had actually severed a Comcast

cable line in the preliminary phases of the project;

(3) positioned the layout of the tennis court incorrectly and not in

accordance with the parties’ agreement;

(4) failed to secure homeowners’ association approval for the

construction of the tennis court;

(5) damaged Appellees’ driveway on the first day of construction;

and

(6) failed to maintain a clean and safe worksite.

CR 9–10; 3 Supp. RR 11, 13–17 (Pls. Exs. 5–8). In light of these

deficiencies, Appellants quickly lost confidence in Sportscapers’ ability to

7

properly construct the tennis court on their property and ordered that

construction stop immediately. CR 10; 3 Supp. RR 15–17 (Pls. Ex. 8).

Over the course of the next three weeks, activities that undoubtedly

should have been undertaken prior to the commencement of construction

proceeded in what is best described as a haphazard manner. For example,

the day after construction was stopped, Appellees asked Thompson to

provide copies of his plans and specifications so that they could present

those plans to the homeowners’ association for approval. CR 10; 3 Supp.

RR 17 (Pls. Ex. 8). Only then did Appellees learn that Sportscapers and

Thompson had not prepared any plans before beginning the work. CR 10;

3 Supp. RR 16 (Pls. Ex. 8) (August 11 e-mail from Thompson admitting

“In terms of a set of plans, I will have to get some plans created for what

we are doing on your property. Will have plans drafted by a draftsman.

Should take about 4 days to complete.”). When Thomson subsequently

prepared plans for the site, his plans contained multiple inaccuracies and

inadequacies and had to be amended. CR 10; 3 Supp. RR 27, 35, 46 (Pls.

Ex. 9); see also 3 Supp. RR 106 (Pls. Ex. 10).

Thereafter, when it appeared that fair and somewhat-accurate

plans had finally been achieved, Sportscapers and Thompson sent

8

Appellees a binder full of new and never-before-discussed demands for

waiver of many necessary preparatory activities. CR 10–11; 3 Supp. RR

104–05 (Pls. Ex. 10). Appellees refused to modify the agreement by

signing the waivers, and Thompson turned the entire matter over to his

lawyer. CR 11; 3 Supp. RR 100 (Pls. Ex. 10).

III. Appellees request a refund of their deposit after

terminating the contract, and Appellants and their attorney

go silent, forcing Appellees to file suit.

Beginning September 4, 2015, Appellees made numerous attempts

to obtain the refund of all or part of their $42,500 deposit—representing

50% of the entire contract amount. CR 11; 3 Supp. RR 100–101 (Pls. Ex.

10). The only response they received from Thompson was a copy of an e-

mail to his attorney, in which Thompson acknowledged that “under our

agreement, you do have a termination option” and indicated that his

attorney would explain “the direct expenses associated with the work”

completed to date and “close out this matter.” 3 Supp. RR 100 (Pls. Ex.

10); CR 11. In a subsequent e-mail, Thompson stated that he was

“[g]ladly willing to refund the monies” due to Appellees, “minus [his]

expenses.” 3 Supp. RR 98 (Pls. Ex. 10).

9

Appellees received a single refund offer from Appellants’ counsel.

CR 11. In the refund offer, Appellants’ counsel indicated that

Sportscapers was entitled to keep $15,474 for the following services the

company had rendered prior to Appellees’ termination of the contract:

TABLE 1: ITEMIZATION OF SPORTSCAPERS’ CHARGES

Amount “Charge”

$2,738 “supplies purchased for mobilization”

“supplies purchased for tennis court

$2,576

needed before concrete pour”

“placement of loads of fill dirt including

$3,560

all labor, equipment, and fuel”

“rendering requested by client and

$2,100

submittals for HOA”

$4,500 “Admin., supervision, and general costs”

$15,474

CR 91–92. In response, Appellees hired counsel to prepare a counteroffer.

Until Appellees finally filed suit in November 2017, there were:

(1) no calls or return calls from Thompson;

(2) no calls or return calls from Appellants’ counsel;

(3) no responses to e-mails sent to Thompson;

(4) no responses to e-mails sent to Appellants’ counsel; and

(5) no responses to mail sent to Appellants’ counsel.

CR 11; see also 3 Supp. RR 97–100 (Pls. Ex. 10). Appellees alleged that

Sportscapers and Thompson breached the contract: (1) by failing to

10

complete their tennis court in a good and workmanlike manner,

according to the contract specifications; (2) by failing and refusing to

reclaim construction materials left at the site, despite Appellees’ pleas to

do so; (3) by failing and refusing to “reasonably clean up the work site

and access area” upon termination of their work; and (4) by failing and

refusing to refund sums due to Appellees after Sportscapers’

services had been terminated. CR 12. Appellees also brought a

conversion claim, which was dismissed when the trial court granted a

directed verdict for Appellants during trial. CR 12. Appellees requested

a “[r]efund of their intial $42,500 deposit, less reasonable, necessary, and

customary charges for services rendered” prior to and including the date

they terminated the contract. CR 13.

IV. The lawsuit proceeds to a four-day jury trial, in which

Appellants’ counsel engages in a remarkable display of

gamesmanship, deceit, and improper jury argument, and

the jury finds that neither party breached the contract

without reaching the damages questions that had been

conditioned on a finding of breach.

The lawsuit was tried before a jury from Tuesday, January 17,

2017, to Friday, January 20, 2017—a long trial for a simple breach of

contract dispute. CR 53, 77, 81. During trial, Appellants’ attorney

engaged in a spectacular display of gamesmanship. Presumably to

11

exhaust the jury with a four-day trial, Appellants’ counsel requested last-

minute, partial-day continuances so that he could, for example, challenge

a speeding ticket he had received in League City, Texas.

During trial, Appellants presented documentary evidence of only

one “charge” incurred by Sportscapers in furtherance of Appellees’ tennis

court: $225. CR 94; see also 2 Supp. RR 7:16–8:25. However, Thompson

was also allowed to testify that Sportscapers incurred the charges

identified in Table 1, supra, totaling $15,474.2 CR 91–92.

But even if Sportscapers were entitled to keep $15,474, the question

remains: How could Sportscapers keep Appellees’ $42,500 deposit

if its contention was that it was only entitled to $15,474? Under

the contract’s unambiguous terms, Appellees have always been

entitled to the uncontested balance: $27,026.

2 Sportscapers also presented Roderick’s testimony that it was entitled to $21,250

as “lost profits,” despite the fact that the contract’s termination provision does not

provide that Sportscapers was entitled to its claimed 25% of the contract price as “lost

profits” upon Appellees’ termination. CR 93–95. Rather, the contract unambiguously

allowed Sportscapers to recover nothing more than “the charges” accrued up to the

date of termination. Indeed, the contract does not mention “lost profits” whatsoever.

CR 16–19. Regardless, Appellants failed to prove Sportscapers’ “lost profits” with

reasonably certainty, and Appellants do not request them on appeal. See Tex.

Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.3d 276, 279 (Tex. 1994)

(holding that lost profits must be established with reasonable certainty).

12

On the last day of trial—and just before closing arguments—

Sportscapers strategically deposited $25,000 into the court registry. CR

80. Indeed, if there was any valid reason for the Sportscapers’ last-second

deposit of funds into the registry, it must surely have been because

Appellants knew that Appellees were entitled to a refund of the

undisputed portion of the $42,500 they paid Sportscapers at the

commencement of the parties’ relationship.

Appellants, however, had another plan: to improperly inform

the jury of the $25,000 deposit and convince the jury that the

funds would be paid to Appellees regardless of the outcome of the

case. Appellants’ counsel stated during closing argument:

MR. TINDAL: And you’ve heard testimony earlier where Mr.

-- Mr. Thompson, through Sportscapers, had offered the

plaintiffs a refund by this itemization when they terminated

him.

Now, keep in mind this adds up to effectively $15,000 or

so that he’s saying that Sportscapers has earned. By this

measure of damages, Question 6, and the same as the time

here, too; but the -- the alternate measure of damages places

it at about $25,000. Now, rather than the 25, he was ready to

go to 15- and say: Let’s be done with it….

I don’t, by any means, mean to concede that I view this case

as a win for the plaintiffs. Quite the opposite, and I’ll – I’ll tell

you also that I objected; and then, since he opened the door,

I’ll go ahead and -- and complete the sentence here that

13

Mr. Thompson is not, in fact, holding the $42,500. And

the disputed part of that money is in the registry of the

Court, and our --

MR. BROPHY: Objection --

MR. TINDAL: -- Judge --

MR. BROPHY: -- Your Honor.

MR. TINDAL: -- has --

THE COURT: Sustained.

MR. BROPHY: Well, now that it’s out there, can we let them

know that he put it in there at noon today?

THE COURT: Counsel, please approach the bench.

2 Supp. RR 20:2–13, 21:5–22 (emphasis added). 3 Thus, Appellants’ own

counsel conceded that: (1) Appellants presented no evidence of any

charges exceeding $15,474; (2) Sportscapers only claimed $15,474

as “charges” the company had incurred; and (3) $25,000 of the

$42,500 deposit was placed in the court registry for Appellees’

benefit. Id. Under no circumstances were Appellants entitled to keep the

undisputed portion of the deposit. Any jury finding to the contrary was

not supported by the evidence.

3 That Sportscapers had deposited money in the registry of the court was not a

fact presented at trial. 2 Supp. RR 22.

14

Even more, despite this improper jury argument by Appellants’

counsel, Appellants have never—before, during, or after trial:

(1) documented costs exceeding $225 for the work Sportscapers

performed in preparation of the job; or (2) refunded a dime of Appellees’

deposit, even though no set of facts presented at trial would negate

Appellees’ entitlement to a refund of the undisputed portion thereof.

At the conclusion of the trial, the jury, apparently exhausted by the

four-day trial and by the games of Appellants’ counsel, returned a

unanimous verdict that neither Appellees nor Appellants had breached

the contract. CR 72. Because the damages questions were conditioned on

a finding of breach, 4 the jury did not answer any of the damages questions

submitted. CR 70–76. Notably, no questions were submitted regarding

the “charges” Sportscapers had incurred prior to Appellees’ termination

of the contract under the termination provision. CR 70–76.

4 While Appellees’ proposed jury charges did not condition questions regarding the

amounts owed or earned by the parties, Appellants’ proposed charges specifically

conditioned the damages questions on a finding of breach—presumably, so that the

jury would not find that Appellees were entitled to a refund absent a finding that

Sportscapers and Thompson had breached the contract. Compare CR 39–52

(Plaintiffs’ first and amended proposed jury charges), with CR 54–66 (Defendants’

proposed jury charge). Over Appellees’ objection, the trial court submitted pure

breach-of-contract damages questions conditioned on a finding of breach. CR 73.

15

Appellants state, with no support in the record, that after the jury

rendered its verdict, “Plaintiffs made a motion for judgment

notwithstanding the verdict that was denied.” Appellants’ Br. at 8.

Appellants’ counsel made the same misrepresentation in a motion filed

seven days after the jury rendered its verdict. CR 78. This assertion is an

outright lie,5 and it demonstrates the gall with which Appellants’ counsel

will misrepresent facts to obtain a favorable result for his clients.

V. Appellants move for a take-nothing judgment, which the

trial court later denies.

Despite Appellants’ position at trial, on January 27, 2017,

Appellants filed a motion for entry of judgment, asking the Court to enter

a take-nothing judgment and order the release of the $25,000

mysteriously deposited into the court registry back to Sportscapers. CR

77–78. The trial court denied Appellants’ motion. CR 89–90, 120.

Indeed, the trial court’s docket notes state that the court took Appellees’ oral

5

motion for judgment notwithstanding the verdict “under advisement.” CR 120.

16

VI. Appellees file a combined motion for judgment, motion for

judgment notwithstanding the verdict, and motion for new

trial, asking that the court apply the plain language of the

contract and award Appellees their $42,500 deposit, less the

“charges” Sportscapers incurred prior to their termination

of the contract.

On March 3, 2017, Appellees filed their combined Motion for

Judgment, Motion for Judgment Notwithstanding the Jury’s Verdict, and

Motion for New Trial. CR 91–98. In the motion, Appellees first asked that

the trial court enter judgment in their favor “consistent with the law and

the jury’s verdict” and award them $27,026 (representing $42,500 less

the amount of “charges” arguably shown to have been incurred by

Sportscapers), plus pre-judgment interest. CR 92, 95. Alternatively,

Appellees sought a judgment awarding them $42,275 (representing

$42,500 less the $225 documented charge evidenced at trial). CR 95.

Appellees requested that the $25,000 deposited in the court’s registry be

released to them. CR 95.

Appellees also moved in the alternative for a judgment

notwithstanding the jury’s “no breach” verdict. CR 95. Particularly,

Appellees argued that, despite the jury’s findings, the evidence

conclusively established Appellees’ entitlement to a refund of the

undisputed portion of their $42,500 deposit and that Sportscapers had

17

breached the contract by failing to do so. CR 95–96. That is, Appellees

again simply asked that the trial court apply the termination provision

according to its plain terms—awarding Appellees the balance of their

deposit, less the evidence of “charges” Sportscapers even arguably

presented at trial. CR 95–96.

Finally, Appellees moved in the alternative for new trial. CR 96–

97. Appellees argued that a take-nothing judgment based on the jury’s

finding that neither party breached the contract would be manifestly

unjust, since under no circumstance were Appellants entitled to keep the

entire balance of Appellees’ $42,500 deposit. CR 97. Put differently,

Appellees argued that the jury’s refusal to answer the damages questions

was so factually insufficient or so against the great weight and

preponderance of the evidence as to be manifestly unjust. CR 97. As

grounds, Appellees argued:

[I]n addition to the obvious and irreparable problem with a

proposed damage award of “zero,” Plaintiffs MITCHELL and

BROWN would show the Court that counsel for the

Defendants purposefully tainted closing jury argument to

such a degree that a new trial is warranted.

The Court will recall that at lunchtime on the final day of

trial, counsel for the Defendants inexplicably, suddenly, and

unexpectedly deposited $25,000.00 into the Registry of the

Court under the name of Sportscapers Construction, Inc.

18

Then, during closing arguments, counsel for the Defendants

disclosed the deposit of those funds to the jury seated to hear

this case, undoubtedly with the express intent of leading the

jurors to believe that:

1) the Defendants were acting in good faith throughout this

dispute; and/or

2) the Plaintiffs would receive something for their Courtroom

efforts even if the jury found that no one breached the parties’

contract. That bad-faith argument alone “might reasonably

have affected the outcome” of this trial, and constitutes “good

cause” for a new trial devoid of such egregious behavior.

CR 97–98.

VII. The trial court grants Appellees’ motion for judgment

notwithstanding the verdict and, four days later, enters a

final judgment awarding Appellees $25,000, “representing

the sums actually paid to Defendant Sportscapers

Construction, Inc., by the Plaintiffs herein, less the sums

charged by Defendant Sportscapers Construction, Inc. for

the services it rendered prior to the lawful termination of

its services.”

On May 12, 2017, the trial court granted Appellees’ motion for

judgment notwithstanding the verdict. CR 121. On May 16, 2017, the

trial court entered a final judgment 6 awarding Appellees $25,000,

“representing the sums actually paid to Defendant Sportscapers

Construction, Inc., by the Plaintiffs herein, less the sums charged by

6 Appellants’ Brief cites to the wrong judgment. Appellants’ Br. at 6, 8–9, 14.

Specifically, Appellants cite to the proposed judgment they filed with their January

27 motion for judgment, which the trial court later denied. CR 89–90, 120.

19

Defendant Sportscapers Construction, Inc. for the services it rendered

prior to the lawful termination of its services.” CR 112. Although the final

judgment also stated that “the jury’s answers to the Questions were

against the great and overwhelming preponderance of the evidence,” this

legal conclusion is not essential to the trial court’s judgment applying the

termination provision according to its terms. Even more, the final

judgment, signed four days after the trial court granted Appellees’

request for a judgment notwithstanding the verdict, does not mention

Appellees’ Motion for Judgment, Motion for Judgment Notwithstanding

the Jury’s Verdict, and Motion for New Trial. CR 111–12, 121.

Appellants filed a notice of appeal without asking that the trial

court modify or correct its judgment. CR 115.

SUMMARY OF THE ARGUMENT

The parties’ contract provided that Appellees could terminate the

contract for any or no reason at all at any point in time. However, if

Appellees exercised this right, Appellants were entitled to the charges

incurred up to and including the date of such termination. Appellees

terminated the contract after depositing $42,500 (or 50% of the entire

contract price) to Appellants and before Appellants performed any

20

significant work on the project. At trial, Appellants presented

documentary evidence of $225 of “charges” incurred prior to the contract’s

termination and presented testimony that Appellants had incurred

$15,474 in “charges” before Appellees terminated the contract.

Pursuant to the contract’s unambiguous terms, Appellees were

entitled to a refund of their $42,500 deposit, less the charges Appellants

incurred prior to the contract’s termination. Appellants established, at

best, that they incurred $15,474 in charges before Appellees terminated

the contract, meaning that Appellees were entitled to a refund in the

amount of $27,026. There was no contrary evidence presented at trial,

and there is no contrary evidence in the appellate record.

The court’s charge conditioned all damages questions based on a

finding of breach. Because the jury—likely influence by Appellants’

improper closing argument insinuating that Appellees would receive the

$25,000 mysteriously deposited into the registry on the last day of trial—

found that neither party had breached the contract, the jury did not make

any damages findings. In short, Appellants escaped a breach-of-contract

jury verdict by improperly suggesting during closing argument that

21

Sportscapers had deposited the refundable portion of Appellees’ deposit

in the court’s registry.

The evidence at trial and in this appellate record conclusively

establishes that Appellants breached the contract’s termination

provision when they refused to refund Appellees’ deposit, less the charges

incurred prior to the contract’s termination. Under these circumstances,

it was entirely proper for the trial court to disregard the jury’s finding on

the question of Appellants’ failure to comply with the contract. Further,

the evidence conclusively establishes that Appellants’ incurred no more

than $15,474 in charges up to and including the date of the contract’s

termination. The evidence therefore conclusively establishes that

Appellees were entitled to a refund of at least $27,026. The trial court did

not err by granting Appellees’ motion for judgment notwithstanding the

verdict and by entering a judgment awarding Appellees $25,000,

“representing the sums actually paid to Defendant Sportscapers

Construction, Inc., by the Plaintiffs herein, less the sums charged by

Defendant Sportscapers Construction, Inc. for the services it rendered

prior to the lawful termination of its services.”

22

Appellants do not contend that the evidence does not

conclusively establish that Sportscapers breached the contract

by refusing to refund at least $25,000 of Appellees’ deposit. Indeed,

Appellants waived that issue by failing to raise it in their opening brief

and by failing to furnish an adequate record for this Court’s review.

Instead, Appellants point to language in the Court’s final judgment and

hope for a second bite at the apple. But Appellants ignore that that

appellate courts review a trial court’s grant of a judgment

notwithstanding the verdict under a legal-sufficiency standard and will

affirm the trial court’s judgment where the evidence conclusively

establishes the opposite of the jury’s factual finding. In short, this Court

must consider whether the trial court’s decision to disregard jury’s

finding was proper, and the record in this case shows precisely that. Any

defective language in the Court’s judgment is harmless, despite

Appellants’ protestations.

The Court should affirm the trial court’s judgment applying the

plain language of the contract’s termination provision because the

evidence presented at trial and in this appellate record conclusively

establishes that Appellants breached the contract when they refused to

23

refund Appellees’ deposit, less the $15,474 in charges they claim to have

incurred prior to the contract’s termination.

ARGUMENT

I. Appellants waived error as to the propriety of the trial

court’s decision to grant Appellees’ motion for judgment

notwithstanding the verdict by failing to produce an

adequate appellate record for this Court’s consideration.

Appellants waived error as to the propriety of the trial court’s

decision to grant Appellees’ motion for judgment notwithstanding the

verdict (“JNOV”) by failing to furnish a sufficient record to show error

requiring reversal.

A trial court may disregard a jury’s verdict and render a JNOV if

no evidence supports the jury’s findings or if a directed verdict would

have been proper. Tex. R. Civ. P. 301; Tiller v. McLure, 121 S.W.3d 709,

713 (Tex. 2003); B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 15 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied). Courts review a trial court’s

decision to grant a JNOV under a legal-sufficiency standard, upholding

a trial court’s decision when the record discloses: (1) a complete absence

of evidence of a vital fact; (2) the trial court is barred by the rules of law

or evidence from giving weight to the only evidence offered to prove a

vital fact; (3) the evidence offered to prove a vital fact is not more than a

24

scintilla; or (4) the evidence establishes conclusively the opposite of a

vital fact. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 347

(Tex. 2015); City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). “A

JNOV should be granted when the evidence is conclusive and one party

is entitled to recover as a matter of law ....” Beckman, 305 S.W.3d at 15.

A court must consider the evidence in the light most favorable to the

nonmoving party, but if the evidence allows only one inference, the court

may not disregard it. Wilson, 168 S.W.3d at 822.

Error is never presumed on appeal. Enterprise Leasing Co. of

Houston v. Barrios, 156 S.W.3d 547, 549 (Tex. 2004). To the contrary,

appealed judgments and orders are presumed correct, and the

appellant has the burden of overcoming this presumption by

affirmatively showing error on an adequate record. Id. (explaining

that if the pertinent evidence considered by the trial court is not included

in the appellate record, an appellate court must presume that the omitted

evidence supports the trial court’s judgment); see also Rogers v. Rogers,

No. 01‐15‐00224‐CV, 2016 WL 3162299, at *3 (Tex. App.—Houston [1st

Dist.] June 2, 2016, no pet. h.) (mem. op.) (“The requirement of a

reporter’s record applies to issues which require reference to the

25

evidence.”). When the appellant brings forward an incomplete

record, a presumption arises that the missing portion of the

evidence is sufficient to support the trial court’s judgment.

Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990); see also

Englander Co. v. Kennedy, 428 S.W.2d 806, 806–07 (Tex. 1968) (same);

Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583 (Tex. App.—Houston

[1st Dist.] 2007, no pet.) (same). Furthermore, when an appellant fails

to bring forward a complete record, the appellate court will

conclude that the appellant has waived the points of error

dependent on the state of the evidence. Donahoe v. Jones, No. 01-15-

00191-CV, 2016 WL 796892, at *3 (Tex. App.—Houston [1st Dist.] Mar.

1, 2015, no pet.); Curry v. Texas Dep’t of Pub. Safety, 472 S.W.3d 346, 350

(Tex. App.—Houston [1st Dist.] 2015, no pet.).

Texas courts hold that an appellant cannot rely on an incomplete

record to attack a JNOV where a directed verdict would have been

proper. See, e.g., Kwik Wash Laundries, Inc. v. McIntyre, 840 S.W.2d 739,

743 (Tex. App.—Austin 1992, no writ) (surveying cases and concluding

that an appellate court cannot properly apply the standard for reviewing

a JNOV without reviewing the entire record); see also Fisher v. Evans,

26

853 S.W.2d 839 (Tex. App.—Waco 1993, writ denied) (same). In fact, the

Kwik Wash Court recognized that if an appellant were allowed to pick

and choose the portions of the record it deemed relevant, then the

appellant could intentionally omit portions of the record in which the

appellant admitted the opponent’s case. Id. This is precisely the type

of gamesmanship that Thompson and Sportscapers are trying to

pull in this appeal.

In short, the evidence presented to the jury is key to Appellants’

challenge to the trial court’s order granting Appellees’ motion for JNOV,

but the reporter’s record Appellants filed with the Court is a mere eight

pages—the jury’s verdict—and contains no information as to the

testimony and evidence the jury observed at trial. Appellants did not file

a request for a partial reporter’s record or otherwise file a statement of

the points or issues to be presented on appeal with the trial court. CR

115; see also Tex. R. App. P. 34.6(c); Guerra v. Flores, No. 13-15-00533-

CV, 2017 WL 4837849, at *2 (Tex. App.—Corpus Christi–Edinburg Oct.

26, 2017, no pet.) (mem. op.) (holding that the court “must presume that

the missing portion of the reporter’s record supports the trial court’s

decision” where “appellant neither filed and served a request for a partial

27

reporter’s record on appellee nor stated the points of error he would be

relying upon”). The appellate record is undoubtedly insufficient. As a

result, the Court must presume that the evidence supports the trial

court’s judgment and hold that Appellants waived error.

II. In any event, the record conclusively establishes that

Appellants breached the contract by failing to comply with

the termination provision when Appellants refused to

refund Appellees’ $42,500 deposit, less the “charges”

Sportscapers incurred prior to Appellees’ lawful exercise of

their right to terminate the contract.

The evidence in this record and presented to the jury at trial

conclusively establishes that:

(1) Appellees deposited $42,500 (50% of the contract price) before

Appellants commenced work under the contract, see

Appellants’ Br. at 7–8 (Appellants’ Statement of the Facts);

(2) Appellees lawfully terminated the contract under the

termination provision, CR 72 (jury’s find that Appellees did

not fail to comply with the agreement); CR 112 (final

judgment);

(3) Appellees were contractually entitled, according to the

contract’s unambiguous terms, to a refund of their deposit,

less the charges Appellants had incurred up to and including

the date Appellees terminated the contract, CR 18 (contract);

(4) Appellants had incurred, at most, $15,474 in charges up to

and including the date Appellees terminated the contract,

2 Supp. RR 20:2–13, 21:8–12; 3 Supp. RR 97–100; and

28

(5) Appellants refused to refund Appellees’ deposit, less the

charges incurred up to and including the date Appellees

terminated the contract, 3 Supp. RR 97–100.

Accordingly, the record and all the evidence at trial conclusively

establishes that Appellants breached the contract by failing to comply

with the contract’s termination provision when they refused to refund

Appellees’ $42,500 deposit, less the $15,474 in charges that Sportscapers

incurred prior to and including the date of Appellees’ lawful exercise of

their right to terminate the contract. No contrary evidence exists, and the

trial court correctly granted Appellees’ motion for JNOV. The trial court

also correctly entered judgment in Appellees’ favor for $25,000,

“representing the sums actually paid to Defendant Sportscapers

Construction, Inc., by the Plaintiffs herein, less the sums charged by

Defendant Sportscapers Construction, Inc. for the services it rendered

prior to the lawful termination of its services.” CR 112.

III. Appellants ask this Court to disregard the well-established

standard for reviewing a trial court’s entry of a judgment

notwithstanding the verdict and ignore that an appellate

court must affirm the judgment even if the trial court’s

rationale is erroneous when the judgment can be supported

on a basis presented in the motion.

Appellants ask this Court to ignore the evidence presented at trial

and to not determine whether the evidence conclusively establishes that

29

Appellants breached the contract’s termination provision and that

Appellants incurred no more than $15,474 in charges prior to the

contract’s termination. Instead, Appellants ask that the Court focus

solely on one clause in the trial court’s final judgment awarding Appellees

$25,000, “representing the sums actually paid to [Sportscapers], less the

sums charged by Defendant Sportscapers Construction, Inc. for the

services it rendered prior to the lawful termination of its services.” CR

121. Even more, Appellants focus on the language in the trial court’s final

judgment but fail to mention that the trial court had granted Appellees’

motion for JNOV four days earlier. CR 121. Appellants also fail to

mention that their counsel’s improper jury argument created this

problem to begin with. 2 Supp. RR 21:8–12. However, the fact that a court

gives an incorrect legal reason for its otherwise correct judgment is not

dispositive, as an appellate court must review the JNOV by reviewing the

arguments presented in the motion and a complete appellate record.

Texas law is well-settled that an appellate court “must uphold a

correct lower court judgment on any legal theory before it, even if the

court gives an incorrect reason for its judgment.” Guar. Cty. Mut.

Ins. Co. v. Reyna, 709 S.W.2d 647, 648 (Tex. 1986) (per curiam) (emphasis

30

added) (citing Gulf Land Co. v. Atl. Refining Co., 131 S.W.2d 73, 77 (Tex.

1939)). This principle applies to a trial court’s order granting a motion for

JNOV. Speck v. Dry Bones Coffee House, No. 01-09-00605-CV, 2009 WL

4358039, at *2 (Tex. App.—Houston [1st Dist.] Dec. 3, 2009, no pet.)

(mem. op.). Indeed, “[a]ffirmance of the trial court’s judgment is

proper if it is supported by any ground asserted in the motion for

judgment notwithstanding the verdict, even if the trial court’s

assigned rationale for granting the motion is erroneous.” Id.

(emphasis added) (quoting Wallis v. United Servs. Auto. Ass’n, 2 S.W.3d

300, 302 (Tex. App.—San Antonio 1999, pet. denied). In short, courts “will

not reverse a correct decision, even if the trial court gave an incorrect

reason for the decision.” Bekins Moving & Storage Co. v. Williams, 947

S.W.2d 568, 585 (Tex. App.—Texarkana 1997, no writ). Put differently,

“[i]f the trial court renders an otherwise correct judgment, it will not be

set aside because it made one or more incorrect conclusions of law…. The

appellate court will simply correct the incorrect conclusion of law, and if

the judgment is found to be correct it will be upheld, although based upon

an incorrect conclusion of law.” Mercedes Dusting Serv., Inc. v. Evans,

353 S.W.2d 894, 896 (Tex. Civ. App.—San Antonio 1962, no writ); see also

31

Tex. R. App. P. 44.1(a) (“No judgment may be reversed on appeal on the

ground that the trial court made an error of law unless the court of

appeals concludes that the error complained of: (1) probably caused the

rendition of an improper judgment; or (2) probably prevented the

appellant from properly presenting the case to the court of appeals.”).

A corollary to this principle is that “[t]o win an appeal from a

judgment notwithstanding a jury’s verdict, an appellant must

successfully challenge all independent grounds that the appellee sought

judgment on and that may have supported the judgment.” Lesher v.

Doescher, No. 02-12-00360-CV, 2013 WL 5593608, at *2 (Tex. App.—Fort

Worth Oct. 10, 2013, pet. denied) (mem. op.). This is true even if the trial

court’s order includes language describing the wrong legal standard. See,

e.g., Cavazos v. Cintron, No. 13-04-00529-CV, 2006 WL 1766189, at *2

n.2 (Tex. App.—Corpus Christi–Edinburg June 29, 2006, no pet.) (mem.

op.); see also Taco Cabana, Inc. v. Exxon Corp., 5 S.W.3d 773, 777 (Tex.

App.—Houston [14th Dist.] 1999, pet. denied) (“Affirmance of the trial

court’s judgment is proper if it is supported by any ground asserted in the

motion … even if the trial court’s assigned rationale for granting the

motion is erroneous.”); Vandever v. Goettee, 678 S.W.2d 630, 635 (Tex.

32

App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.) (“If the judgment is

otherwise correct upon the merits, it is not to be reversed because the

trial judge grounded it upon incorrect legal reasons.”).

This Court’s decision in Smitherman v Commission for Lawyer

Discipline is instructive. There, the Commission for Lawyer Discipline

sued an attorney, alleging that he committed certain violations of the

Texas Disciplinary Rules of Professional Conduct. Smitherman v.

Comm’n for Lawyer Discipline, 463 S.W.3d 97, 98 (Tex. App.—Houston

[1st Dist.] 2015, pet denied). After a jury found in the attorney’s favor,

the trial court granted the Commission’s motion for JNOV and entered a

judgment for the Commission. Id.

The attorney appealed the trial court’s decision to grant the motion

for JNOV arguing, among other things, that the trial court applied the

wrong legal standard in granting the motion JNOV based on statements

the trial court allegedly recited when considering the motion. Id. at 106.

Despite the attorney’s challenge to the legal standard used by the

trial court, this Court proceeded in a traditional legal-sufficiency

review, considering whether a JNOV was proper based on the

record and the grounds raised in the Commission’s motion. Id. at

33

103–04. This Court explained that it reviews “trial court’s application of

the law to the facts de novo,” and concluded that the JNOV was proper

based on the correct legal standard. Id. at 107. Even if the attorney had

shown that the trial court applied the incorrect legal standard, this Court

would affirm the trial court’s judgment if the JNOV was supported by

any ground asserted in the motion.

Here, Appellees argued in their motion for JNOV that, despite the

jury’s no-breach finding, the evidence conclusively established that

Appellees were entitled to a refund of the undisputed portion of their

deposit, meaning that Sportscapers necessarily breached the contract by

failing to do so. CR 95–96; 2 Supp. RR 20:2–13, 21:8–12. Appellees asked

the trial court to disregard the jury’s finding that Appellants had not

breached the contract and award them $42,275 or $27,026 in breach-of-

contract damages. CR 95–96. The evidence conclusively established that

Appellants refused to provide a refund under the termination provision,

even after acknowledging a refund was due, and that Appellees were

entitled to an award of at least $27,026. 2 Supp. RR 20:2–13, 21:8–12; 3

Supp. RR 97–100. The trial court’s decision to grant Appellees’ motion for

JNOV was proper on the record before this Court and on the record before

34

the trial court. Even if the trial court had applied the incorrect legal

standard—a point which Appellees do not concede, Appellants have done

nothing to demonstrate that a judgment notwithstanding the verdict was

improper under the correct standard. See Reyna, 709 S.W.2d at 648;

Smitherman, 463 S.W.3d at 98; Lesher, 2013 WL 5593608, at *2; Speck,

2009 WL 4358039, at *2; Cavazos, 2006 WL 1766189, at *2 n.2; Taco

Cabana, 5 S.W.3d at 777; Williams, 947 S.W.2d at 585; Vandever, 678

S.W.2d at 635; see also Wilson v. State, No. 09-07-00589-CR, 2008 WL

5501146, at *11 (Tex. App.—Beaumont Jan. 14, 2009, no pet.) (mem. op.)

(not designated for publication) (holding that trial court did not err in

denying motion for new trial even though the court’s order stated the

wrong legal standard because “[a]pplying the correct legal standards …

the trial court did not err ….”).

The Supreme Court of Texas has already considered and rejected

the argument Appellants make on appeal. In Ulico Cas. Co. v. Allied

Pilots Association, a case regarding an alleged breach of an insurance

contract, the jury found against Ulico in four liability questions, but the

trial court granted Ulico’s motion for JNOV and set aside two of the jury

findings. Ulico Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773, 776 (Tex.

35

2008). Before the Texas Supreme Court, Allied Pilots Association (“APA”)

claimed that the trial court applied the wrong standard of review in

disregarding one of the jury’s answers based on the trial court’s

conclusion of law that “the evidence does not support” APA’s claim that

an extended reporting period was granted. Id. at 789. Put differently,

APA claimed that the trial court based its decision on insufficient rather

than no evidence. Id. The Court, however, found that the trial court’s

conclusions of law were not dispositive:

But even if the trial court applied the wrong standard in

reaching its decision to disregard the jury’s answer, Ulico is

entitled to a no-evidence review because it asserted in

its Motion for Judgment Notwithstanding the Verdict

and its cross-issues that no evidence supported the

jury finding. The trial court properly granted judgment

notwithstanding the verdict on that ground.

Id. (emphasis added). Just as in this case, language in the trial court’s

judgment is not determinative, as an appellate court must affirm a trial

court’s judgment “if it is supported by any ground asserted in the motion

for judgment notwithstanding the verdict, even if the trial court’s

assigned rationale for granting the motion is erroneous.” Speck, 2009 WL

4358039, at *2; see also Shell Oil Products Co. v. Main St. Ventures,

L.L.C., 90 S.W.3d 375, 387 (Tex. App.—Dallas 2002, pet. dism’d by agr.)

36

(“We may uphold a JNOV only if no evidence supports the jury finding.

Consequently, the standard of review used by the trial court is irrelevant

to our inquiry.” (citation omitted)).

Appellants cite no authority supporting their request that the Court

depart from the well-settled standard of review of a trial court’s decision

to grant a motion for JNOV. In fact, Appellants recognize that this Court

must consider the propriety of the trial court’s decision by “review[ing]

the evidence” to determine whether no evidence supported the jury’s

finding. Appellants’ Br. at 11. The Court should reject Appellants’

invitation to depart from established standards of appellate review and

affirm the trial court’s judgment because a judgment notwithstanding

the verdict was proper based on the grounds asserted in Appellees’

motion and because Appellants have failed to overcome the presumption

that the trial court’s judgment is correct by affirmatively showing error

on an adequate record. Instead, the appellate record—and Appellants’

own statements—conclusively establish that Appellees were entitled to a

refund of the undisputed portion of their deposit—$25,000 (or $27,026).

37

IV. Appellants are simply postponing the inevitable to further

delay Appellees’ recovery and force Appellees to incur

additional attorneys’ fees recovering funds that

unquestionably belong to them.

This appeal is no more than another example of Appellants’

gamesmanship and attempt to delay the inevitable. Indeed, there is no

doubt that if this Court were to remand to the trial court so that it may

reconsider Appellees’ motion for JNOV, the trial court would simply enter

the same final judgment using tighter language.7 Thereafter, Appellants

would predictably bring another frivolous appeal. In fact, not only are

Appellants’ games predictable; Appellants admit their true intent.

Specifically, Appellants have already told this Court:

Should the trial court enter a modified judgment curing the

error briefed by Appellants, afterward Appellants will

demonstrate the substantive error in the judgment by parsing

through the entire record and all trial exhibits to demonstrate

that the jury’s finding that Sportscapers Construction did not

breach the parties’ contract should not be disturbed on the

basis of the presentation of evidence at trial did not establish

a breach of contract on Sportscapers’ part so conclusively that

reasonable minds could not differ as to the truth of the

controlling facts.

7Of course, if this Court does remand to the trial court, Appellees will request an

award for attorneys’ fees and costs, which should have been included in the trial

court’s final judgment, and ask that the trial court increase their breach-of-contract

damages to at least $27,026.

38

Appellants’ Resp. to Appellees’ Mot. to Dismiss and Motion to Extend the

Time to File the Br. at 1. Appellants are misleading this Court, just as

they misled the jury during closing argument. Respectfully, this Court

should refuse to entertain Appellants’ nonsense.

PRAYER

For these reasons, Appellees Evelyn M. Mitchell and Douglas

Brown ask that the Court affirm the trial court’s final judgment awarding

“the sums actually paid to Defendant Sportscapers Construction, Inc., …

less the sums charged by Defendant Sportscapers Construction, Inc. for

the services it rendered prior to the lawful termination of its services,”

and award them the attorneys’ fees and costs incurred on appeal.

Respectfully submitted,

BURFORD PERRY, LLP

/s/ Shawn A. Johnson

____________________________

Shawn A. Johnson

State Bar No. 24097056

Robert R. Burford

State Bar No. 03371700

909 Fannin St., Suite 2630

Houston, Texas 77010

Telephone: (713) 401-9790

Facsimile: (713) 993-7739

sjohnson@burfordperry.com

rburford@burfordperry.com

39

CERTIFICATE OF COMPLIANCE

As required by Tex. R. App. P. 9.4(i)(2)(B) and (3), I certify that the

number of words in Appellee’ Response Brief is 7,618. I relied on the

computer program used to prepare the document for the word count.

/s/ Shawn A. Johnson

____________________________

Shawn A. Johnson

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing

Appellees’ Response Brief has been served on the following counsel of

record by the manner indicated in accordance with Tex. R. App. P. 9.5(e),

on March 20, 2018.

BY ELECTRONIC SERVICE

Troy Tindal

17225 El Camino Real, Suite 190

Houston, Texas 77058

troy@tindallawfirm.com

Attorney for Appellants Sportscapers

Construction, Inc. and Roderick Thompson

/s/ Shawn A. Johnson

____________________________

Shawn A. Johnson

40

RULE 38 APPENDIX

41

Appendix A

Certified Records from the Texas Secretary of State