Summary
refusing to award attorneys' fees on claims of breach of unspecified implied warranties under Texas Civil Practice and Remedies Code § 38.001 because doing so would controvert "a substantial body of Texas caselaw"
Summary of this case from 7979 Airport v. DollarOpinion
Nos. 05-11364, 06-10583.
March 16, 2007.
Richard Whitney Ward, Dallas, TX, for Plaintiff-Counter Defendant-Appellee.
Russell Howard Daniels, Sr., Bush Motes, Arlington, TX, for Defendant-Counter Claimant-Third Party Plaintiff-Appellant
Appeals from the United States District Court for the Northern District of Texas, Dallas Division, Docket No. 3:02-CV-2613.
Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges.
The court, having heard oral argument and having reviewed the briefs and pertinent portion of the record, finds no reversible error of law or fact.
Rockland challenges the sufficiency of Momax's evidence as to lost profits. However, at trial, Rockland failed to renew its motion for judgment as a matter of law and thus did not comply with Federal Rule of Civil Procedure 50(b). See McCann v. Tex. City Refining, Inc., 984 F.2d 667, 671 (5th Cir. 1993). Therefore, we review for plain error and determine "only whether the plaintiff has presented any evidence in support of his claim." Polanco v. City of Austin, Tex., 78 F.3d 968, 974 (5th Cir. 1996). Under this standard of review, the evidence was plainly sufficient to sustain the jury's award of lost profits.
As to the testimony of Dick Abram, Rockland withdrew its objection at trial, and Abram therefore testified without objection. Regardless, there was no abuse of discretion in admitting his testimony. See DUO, Inc. v. Hilton Hotels Corp., 351 F.3d 679, 685-87 (5th Cir. 2003).
Rockland argues that Momax negated its breach of implied warranty claims because the product was safe to consume. Momax's customers, however, were the stores that would carry the product, not the ultimate consumers. Rockland stipulated to the unsuitability of swollen bottles for sale to Momax's grocery store customers. It is therefore irrelevant whether the product would have caused harm to human beings upon consumption. Momax did not negate its implied warranty claims.
Finally, Momax has moved for recovery of attorneys' fees under Texas Civil Practice and Remedies Code § 38.001. Bound as we are by Texas law, and unpersuaded that a substantial body of Texas caselaw is incorrect, we may not award attorneys' fees in a breach of warranty case such as this one. See JCW Elecs., Inc. v. Garza, 176 S.W.3d 618, 633-34 (Tex.App. 2005); JHC Ventures, L.P. v. Fast Trucking, Inc., 94 S.W.3d 762, 769 (Tex.App. 2002); Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 896-97 (Tex.App. 2002); Harris Packaging Corp. v. Baker Concrete Constr. Co., 982 S.W.2d 62, 69 (Tex.App. 1998); see also Southwestern Bell Tel. Co. v. FDP Corp., 811 S.W.2d 572 (Tex. 1991) (distinguishing between breach of contract and breach of warranty actions).
AFFIRMED.