Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 366th Judicial District Court Collin County,
Texas Trial Court Cause No. 366-05061-2015
Justices Myers, Osborne, and Nowell
A. NOWELL JUSTICE
appeal concerns the denial of a motion for judgment
notwithstanding the verdict and the award of attorney's
fees to the parties under separate contracts. OIC Holdings,
LLC purchased Oregon Ice Cream, LLC from Thomas and Julie
Gleason. As part of the purchase, the Gleasons entered into
employment agreements with Oregon Ice Cream. After the sale,
OIC sued the Gleasons for breach of the Purchase Agreement.
The Gleasons filed a third-party claim against Oregon Ice
Cream for breach of their employment agreements. The jury
failed to find that either the Gleasons or Oregon Ice Cream
breached the respective contracts.
the Purchase Agreement and the employment contracts provided
that the prevailing party in any dispute would be entitled to
recover attorney's fees. By agreement, the attorney's
fees issues were submitted to the trial court after trial.
The trial court determined that the Gleasons were the
prevailing parties under the contract with OIC and that
Oregon Ice Cream was the prevailing party under the
employment agreements with the Gleasons. The trial court
overruled OIC's motion for judgment notwithstanding the
verdict, rendered judgment that all parties take nothing on
their claims, awarded the Gleasons over $2.2 million in
attorney's fees from OIC, and awarded Oregon Ice Cream
$200, 000 in attorney's fees from the Gleasons.
appeals the denial of its motion for judgment notwithstanding
the verdict and the award of attorney's fees to the
Gleasons. The Gleasons cross-appeal the award of
attorney's fees to Oregon Ice Cream. We conclude that
some evidence supports the jury's verdict and the trial
court did not abuse its discretion by awarding attorney's
fees to the Gleasons. We overrule OIC's issues on appeal.
We also conclude that Oregon Ice Cream failed to timely
designate an expert witness on attorney's fees pursuant
to the trial court's scheduling order. We sustain the
Gleasons' issue in their cross-appeal. Accordingly, we
reverse that portion of the trial court's judgment
awarding attorney's fees to Oregon Ice Cream and render
judgment that Oregon Ice Cream take nothing. In all other
respects, the trial court's judgment is affirmed.
entered into a Purchase Agreement with Thomas and Julie
Gleason to purchase Oregon Ice Cream, LLC for approximately
$33 million with adjustments to be determined after closing.
As part of the transaction, Oregon Ice Cream entered into
employment agreements to retain the Gleasons. Several
disputes arose after the closing of the transaction regarding
the adjustments under the Purchase Agreement. Eventually, OIC
filed this lawsuit against the Gleasons for breach of the
purchase agreement and other causes of action. The Gleasons,
who had been fired by this time, filed counterclaims against
OIC and a third-party claim against Oregon Ice Cream for
breach of their employment agreements.
competing breach of contract claims were submitted to the
jury and the jury determined that the Gleasons did not breach
the Purchase Agreement and that Oregon Ice Cream did not
breach the employment agreements. OIC moved for judgment
notwithstanding the verdict arguing it conclusively proved
the Gleasons breached one section of the purchase agreement.
The trial court denied the motion.
to a stipulation entered into after trial began, the parties
moved for awards of attorney's fees and submitted
evidence of their fees to the trial court after the jury
verdict. The trial court concluded that the Gleasons were the
prevailing parties under the purchase agreement and awarded
them over $2.2 million in attorney's fees. The court also
determined that Oregon Ice Cream was the prevailing party
under the employment agreements and awarded it $200, 000 in
attorney's fees. The trial court rendered final judgment
that OIC and the Gleasons take nothing on their claims and
that the Gleasons and Oregon Ice Cream recover their
attorney's fees as found by the court.
appeal, OIC contends the trial court erred by denying its
motion for judgment notwithstanding the verdict (JNOV), by
determining that the Gleasons were the prevailing parties
under the Purchase Agreement, and by improperly conditioning
the award of appellate fees for presentation of a response to
a petition for review. The Gleasons cross-appeal complaining
the trial court erred by awarding attorney's fees to
Oregon Ice Cream because it did not timely disclose an expert
witness as required by the trial court's scheduling
review a trial court's decision to grant or deny a motion
for JNOV under the legal sufficiency standard of review.
Helping Hands Home Care, Inc. v. Home Health of Tarrant
Cty., Inc., 393 S.W.3d 492, 515 (Tex. App.-Dallas 2013,
pets. denied); see also City of Keller v. Wilson,
168 S.W.3d 802, 823 (Tex. 2005) (test for legal sufficiency
is same for directed verdict, JNOV, and appellate no-evidence
review). We credit evidence favoring the jury verdict if
reasonable jurors could and disregard contrary evidence
unless reasonable jurors could not. Tanner v. Nationwide
Mut. Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 2009). We
will uphold the jury's finding if it is supported by more
than a scintilla of competent evidence. Id.
challenging the legal sufficiency of an adverse finding on an
issue on which that party had the burden of proof at trial
must demonstrate that the evidence conclusively established
all vital facts in support of the issue as a matter of law.
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.
2001). The appellant must show there is no evidence to
support the jury's finding and that the evidence
conclusively establishes the opposite finding. Id.
The ultimate test for legal sufficiency is whether the
evidence would enable a reasonable and fair-minded fact
finder to reach the verdict under review. City of
Keller, 168 S.W.3d at 827.
jury refused to find that the Gleasons "fail[ed] to
comply with Section 2.2 of the Purchase Agreement." OIC
argues there is no evidence to support this adverse finding
and that the evidence conclusively establishes that the
Gleasons breached Section 2.2(a). In particular, OIC claims
the Gleasons issued approximately $507, 000 in company checks
prior to closing, but did not include those outstanding
checks in the calculations for the purchase price.
2.2 of the Purchase Agreement provides:
2.2 Purchase Price and Pre-Closing Transactions.
(a) Purchase Price. The purchase price for the
Transferred Equity Interests is $33, 000, 000, less
the outstanding amount of the Permitted Indebtedness at the
Closing Date, less the Excess JG Separation
Obligation, plus or minus the Adjustment Amount (the
"Purchase Price"). At the
Closing, Buyer shall deliver as payment on account of the
Purchase Price an amount (the "Closing
Payment") equal to (i) the Purchase Price
plus (ii) Cash (after taking into account the
payments to be made pursuant to Section 2.2(b)(i)
below) less (iii) Indebtedness, if any, excluding
Permitted Indebtedness and the Indebtedness satisfied
pursuant to Section 2.2(b)(i) below. The Adjustment Amount
shall be paid by Sellers or Buyer, as the case may be, in
accordance with Section 2.5.
Cash is defined in the Purchase Agreement as:
"Cash" means the sum of all cash and cash
equivalents of the Acquired Companies, less the
aggregate amount of all checks issued by any Acquired Company
to a third party that have not yet cleared, plus the
aggregate amount of all checks issued to any Acquired Company
that have been deposited in an ...