Court of Appeals of Texas, Eighth District, El Paso
DAVID NELSON, Individually and d/b/a COLLECTIVE CONTRACTING, A SOLE PROPRIETORSHIP; COLLECTIVE CONTRACTING, INC.; and E.E. HOOD & SONS, INC., Appellants,
VERNCO CONSTRUCTION, INC., Appellee.
from the 45th District Court of Bexar County, Texas (TC#
McClure, C.J., Rodriguez, and Hughes, J.J.
T. RODRIGUEZ, JUSTICE.
opinion dated May 31, 2018, we suggested a remittitur of $2,
122, 978.00, representing breach of contract damages for
force account work that was unsupported by legally sufficient
evidence. We stated that if remittitur were filed by Appellee
Vernco Construction within fifteen days of the date of the
opinion, we would modify the judgment with respect to this
amount and affirm the judgment as modified.
response, on June 8, 2018, Vernco filed two documents in this
Court: an "Acceptance of the Court's Suggestion of
Remittitur" and an "Advisory to the Court Regarding
the Amount of Actual Damages Remaining After Remittitur"
alerting us to a purported arithmetic error in our actual
advisory, Vernco contends that we erred by stating that after
remittitur, the actual damages award would be $1, 702,
758.00. Vernco points out that this amount does not include
an award of $350, 000.00 in damages for Nelson's failure
to pursue inefficiency claims. Vernco cautions us that in
rendering final judgment (1) the actual amount of judgment
should be $2, 052, 758.00 and (2) this amount should be
recoverable jointly and severally against both Hood and
cannot render such a judgment. We take this opportunity to
clarify our position and reiterate our understanding of the
trial court's judgment.
Court's Initial Calculations Were Not Erroneous
noted in our initial opinion, while the jury's verdict
authorizes joint and several liability against Hood and
Nelson for this amount, the trial court's judgment does
not. Instead, the trial court's judgment only allows
Vernco to recover against Hood individually for lost
profits damages ($1, 191, 758.00 for non-force account work
and $2, 122, 978.00 in force account work) and lost business
value damages ($511, 000.00). See Nelson v. Vernco
Constr., Inc., -- S.W.3d --, No. 08-10-00222-CV, 2018 WL
2440773, at *9-*10 (Tex.App.--El Paso May 31, 2018, no pet.
judgment eliminates the lost profit damages line-item as to
force account work, leaving the non-force account work lost
profits and lost business value actual damages being
recoverable against Hood individually for an amount
that totals $1, 702, 758.00. Per the remaining unaltered
terms of the trial court's judgment, the $350, 000 for
lost inefficiency claims remains jointly and severally
recoverable against both Hood and Nelson.
Ability to Make Judgment Jointly and Severally Enforceable
Absent a Cross-Appeal from
No Just Cause Shown
extent that Vernco asks this Court to impose liability on
Nelson beyond the $350, 000.00 authorized by the trial
court's judgment, we lack the ability to do so. While the
Texas Rules of Civil Procedure required the trial court to
issue a judgment that "conform[ed] to the . . . verdict
. . . and shall be so framed as to give the party all the
relief to which he may be entitled either in law or equity[,
]" Tex.R.Civ.P. 301, "[t]he appellate court may not
grant a party who does not file a notice of appeal more
favorable relief than did the trial court except for just
cause." Tex.R.App.P. 25.1(c). An appellee who is
satisfied with the trial court's judgment need not file a
cross-appeal in order to urge us to affirm the judgment, but
an appellee that seeks to alter the judgment and obtain
relief beyond that which was authorized in the trial court
must file a notice of appeal in the appellate court. City
of Brownsville ex rel. Pub. Util. Bd. v. AEP Tex. Cent.
Co., 348 S.W.3d 348, 358 (Tex.App.--Dallas 2011, pet.
initial opinion interpreting the trial judgment's
decretal clauses, we noted that the trial court's
judgment inclusion of certain terms from the verdict and not
others was a deliberate result of post-judgment litigation
"and not simply a clerical error amenable to correct via
a judgment nun pro tunc." Nelson, 2018 WL
2440773, at *10. To the extent the trial court erred by
granting Vernco less than all the relief to which it was
entitled against Nelson, Vernco as Appellee was required to
file a cross-appeal if it sought to increase its recovery
beyond what was authorized by the trial court's judgment.
While this Court retains the ability to grant relief on an
appellee's request for alteration of the trial
court's judgment in the absence of a notice of
cross-appeal if just cause is shown, Tex.R.App.P. 25.1(c), we
find no just cause here, given ...