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Cybiz, Inc. v. Gaskill

Court of Appeals of Texas, Fourteenth District

March 14, 2017

CYBIZ, INC. D/B/A DRS COMPUTER SERVICES, Appellant
v.
SUSAN C. GASKILL, M.D., P.A. D/B/A VICTORY BREAST DIAGNOSTICS & WOMEN'S IMAGING, Appellee

         On Appeal from the 405th District Court Galveston County, Texas Trial Court Cause No. 13-CV-0874

          Panel consists of Justices Christopher, Jamison, and Donovan.

          MEMORANDUM OPINION

          Tracy Christopher Justice.

         In this dispute arising from two contracts between the parties, the plaintiff appeals from the judgment rendered on the jury's verdict, but has not included a record of the trial proceedings. The plaintiff instead contends the pleadings establish that (a) it is entitled to judgment on its open-account claim, (b) the defendant lacked standing to assert its counterclaims, (c) the counterclaims are barred by limitations, and (d) the damages awarded on two of the defendant's counterclaims constituted a double recovery for a single injury. In addition, the appellant contends that the trial court erroneously awarded post-judgment interest at higher rate than the law allows. Because the defendant's alleged lack of standing is merely a misnomer and none of the remaining appellate complaints have been preserved for our review, we affirm the trial court's judgment.

         I. Background

         Cybiz Inc. d/b/a DRS Computer Services ("Cybiz") sued Susan C. Gaskill MD, PA d/b/a Victory Breast Diagnostics & Women's Imaging ("Victory") for breach of a 2009 IT services agreement. Cybiz also couched this claim as a suit on an open account. In response, Victory raised counterclaims arising from a 2010 agreement, alleging causes of action for breach of contract, fraud, and money had and received.

         The jury found that Cybiz and Victory entered into the 2009 IT services contract; that both parties failed to comply with the agreement; and that Cybiz was the first to breach the contract. Regarding Victory's claims, the jury found that the parties agreed that Victory would purchase, and Cybiz would deliver, computer equipment and software. After finding that Cybiz failed to comply with the contract, the jury assessed Victory's actual damages at $31, 273.92. It also found that the reasonable fees for Victory's necessary attorney's services through trial were $30, 000, and assessed further attorney's fees of up to $40, 000, depending on the extent of appellate proceedings. The trial court rendered judgment on the verdict, and Cybiz now appeals.

         II. The Omitted-Record Presumption

         In an appeal from a jury trial, the absence of a reporter's record can be fatal. See Kroger Co. v. Am. Alternative Ins. Corp., 468 S.W.3d 766, 768 (Tex. App.- Houston [14th Dist.] 2015, no pet.). Absent compliance with the rules governing agreed or partial records-which did not occur here-"we must presume that the omitted portions of the record are relevant and would support the judgment." Mason v. Our Lady Star of the Sea Catholic Church, 154 S.W.3d 816, 822 (Tex. App.-Houston [14th Dist.] 2005, no pet.).[1]

         The need for a complete reporter's record may be most immediately apparent in the threshold question of error preservation. A party must preserve most complaints of error by raising the issue in the trial court through a timely and sufficiently specific request, objection, or motion. See Tex. R. App. P. 33.1(a). Having raised the issue, the complaining party also must either obtain a ruling on it or object to the trial court's failure to rule. See id. If the record does not show that the party raised the issue and obtained or pursued a ruling in the trial court, an appellate court usually is unable to address the merits of the complaint on appeal. See Fed. Deposit Ins. Corp. v. Lenk, 361 S.W.3d 602, 604 (Tex. 2012) (explaining that the appellate courts generally lack jurisdiction to address unpreserved complaints of error); Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (per curiam) (stating that Texas courts lack jurisdiction to render advisory opinions); Maxim Crane Works, L.P. v. Berkel & Co. Contractors, Inc., No. 14-15-00614-CV, 2016 WL 4198138, at *2 (Tex. App.-Houston [14th Dist.] Aug. 9, 2016, pet. denied) (mem. op.) (overruling issues without addressing the merits where the limited record failed to show that the appellant preserved error).

         Questions of jurisdiction are one of the exceptions to this general rule. The question of subject-matter jurisdiction can be raised for the first time on appeal. See RSL Funding, LLC v. Pippins, 499 S.W.3d 423, 429 (Tex. 2016) (per curiam). Because it is component of subject-matter jurisdiction, a party's standing also can be challenged for the first time on appeal. See id. We therefore begin our analysis with this complaint.

         III. Standing

         Cybiz contends that the counterclaims against it were owned by Victory, but were raised by Gaskill in her individual capacity. Because the counterclaims belonged not to Gaskill but to her company, Cybiz maintains that Gaskill lacked standing to assert them.

         Cybiz's premise that the counterclaims were brought by Gaskill is based on one sentence in the pleading raising the claims: "NOW COMES Dr. Susan C. Gaskill d/b/a Victory Breast Diagnostics & Women's Imaging (hereinafter 'Victory Breast Diagnostics'), Counter-petitioner in the above-entitled and numbered cause, and files this Original Counterclaim . . . ." According to Cybiz, this ...


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