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Cimco Refrigeration, Inc. v. Bartush-Schnitzius Foods Co.

Court of Appeals of Texas, Second District, Fort Worth

April 26, 2018

CIMCO REFRIGERATION, INC. APPELLANT
v.
BARTUSH-SCHNITZIUS FOODS CO. APPELLEE

          FROM THE 16TH DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. 2011-11002-16

          PANEL: WALKER, GABRIEL, and PITTMAN, JJ. [9]

          MEMORANDUM OPINION ON REMAND [1]

          SUE WALKER JUSTICE

         I. Introduction

         This 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.[2] 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."[3] Id. at 438 & n.3.

         Because 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, [4]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 $165, 000.

         II. Pertinent Background on Remand[5]

         A. The Dispute

         Cimco, 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. Id.

         B. Proceedings in the Trial Court

         Cimco 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.

         Question 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 Facility?"

Question 2 regarding Cimco's alleged breach of contract asked,
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.

         The 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 thirty-five-degree-temperature requirement.

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".

         Question 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[6] factors.

         Cimco 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 ...


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