Court of Appeals of Texas, Second District, Fort Worth
CIMCO REFRIGERATION, INC. APPELLANT
BARTUSH-SCHNITZIUS FOODS CO. APPELLEE
THE 16TH DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO.
WALKER, GABRIEL, and PITTMAN, JJ. 
MEMORANDUM OPINION ON REMAND 
case is on remand from the Supreme Court of Texas after the
court granted petitions for review filed by both Appellant
Cimco Refrigeration, Inc. (Cimco) and Appellee
Bartush-Schnitzius Foods Co. (Bartush), issued a per curiam
opinion and a judgment reversing this court's judgment,
and ordered our opinion published. See Bartush-Schnitzius
Foods Co. v. Cimco Refrigeration, Inc., 518 S.W.3d 432
(Tex. 2017) (Bartush II). Holding that "neither
the trial court nor the court of appeals properly effectuated
the jury's verdict[, ]" the supreme court directed
us on remand to address the following issues that we did not
reach in Bartush I: (1) "Cimco's
alternative argument that the trial court's judgment
should be reversed on the ground that no evidence supported
the jury's finding that Cimco failed to comply with the
parties' agreement"; (2) Cimco's argument that
the parole-evidence rule bars enforcement of the disputed
term regarding temperature; and (3) "whether Cimco's
objection to Question 3 was sufficient to preserve error on
Question 24." Id. at 438 & n.3.
we hold that these issues lack merit but that we must give
effect to the jury's damages awards to both parties as
instructed by the supreme court, we will reverse the trial
court's judgment that Cimco take nothing, and remand for
entry of a judgment that Cimco recover $113, 400 from Bartush
plus pre- and post-judgment interest and affirm the trial
court's judgment that Bartush recover $168, 079 from
Cimco plus pre- and post-judgment interest and that Bartush
recover from Cimco its attorney's fees in the amount of
Pertinent Background on Remand
a refrigeration contractor, agreed to install a specific
refrigeration system for Bartush, a food-product
manufacturer. A dispute arose as to whether the system worked
properly because it did not maintain a consistent
thirty-five-degree temperature. Bartush II, 518
S.W.3d at 434. Bartush claimed that Cimco promised the system
could maintain a consistent thirty-five-degree temperature,
while Cimco contended that it made no enforceable promise
regarding a consistent thirty-five-degree temperature.
Id. Having already paid $306, 758, Bartush refused
to pay the remaining $113, 400 owed to Cimco and instead
spent an additional $168, 079 to secure a system that could
maintain a consistent thirty-five-degree temperature.
Proceedings in the Trial Court
filed suit against Bartush and brought a breach-of-contract
claim for nonpayment. Id. Bartush filed a
breach-of-contract counterclaim. Id. The claims were
tried to a jury. Id. at 435. After the close of the
trial, the court submitted breach-of-contract questions for
both Cimco and Bartush. Id.
1 regarding Bartush's alleged breach of contract asked,
"Did BARTUSH fail to comply with the agreement to
purchase the refrigeration equipment and services for The
Question 2 regarding Cimco's alleged breach of contract
Did CIMCO fail to comply with the agreement to provide the
refrigeration equipment and services to [Bartush]?
You are instructed that CIMCO is required to perform its
services under the contract in a good and workmanlike manner.
A good and workman like manner is 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.
court's charge defined "agreement" as "the
written documents reflecting the agreement of the parties,
together with any additional terms that supplement the
written documents." Notably, Question 2 did not
predicate any breach-of- contract finding on the
Question 3 asked,
If you answered "Yes" to both Question No. 1 and
Question No. 2, then answer Question No. 3. Otherwise, do not
answer the following question.
Who failed to comply with the agreement first?
Answer "CIMCO" or "BARTUSH".
4 asked, "If you answered "Yes" to Question
No. 1, then answer Question No. 4. Otherwise, do not answer
the following question. Was BARTUSH's failure to comply
excused?" In determining whether Bartush's breach
was excused, the trial court instructed the jury in Question
4 to evaluate the materiality of Cimco's breach under the
Mustang Pipeline factors.
also submitted Question 24 for recovery of its attorney's
fees. In submitting Question 24, Cimco included the following
conditioning instructions: "If you have answered
"Yes" to Question No. 1, "BARTUSH" to
Question No. 3, and "No" to Question No. 4, then
answer the following Question. Otherwise, do not answer the
following question." Question 23, Bartush's