Filed: Jan. 30, 2001
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 99-11179 _ PERFORMANCE PRINTING CORP., Plaintiff - Appellant, vs. UPPER DECK COMPANY, Defendant - Appellee. _ No. 99-11247 _ PERFORMANCE PRINTING CORP., Plaintiff - Appellee, vs. UPPER DECK COMPANY, Defendant - Appellant. - Appeal from the United States District Court for the Northern District of Texas, Dallas (3:98-CV-35-R) January 30, 2001 Before BARKSDALE, EMILIO M. GARZA, and BENAVIDES, Circuit Judges. BENAVIDES, Circuit Judge
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 99-11179 _ PERFORMANCE PRINTING CORP., Plaintiff - Appellant, vs. UPPER DECK COMPANY, Defendant - Appellee. _ No. 99-11247 _ PERFORMANCE PRINTING CORP., Plaintiff - Appellee, vs. UPPER DECK COMPANY, Defendant - Appellant. - Appeal from the United States District Court for the Northern District of Texas, Dallas (3:98-CV-35-R) January 30, 2001 Before BARKSDALE, EMILIO M. GARZA, and BENAVIDES, Circuit Judges. BENAVIDES, Circuit Judge:..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________
No. 99-11179
_____________
PERFORMANCE PRINTING CORP.,
Plaintiff - Appellant,
vs.
UPPER DECK COMPANY,
Defendant - Appellee.
_____________
No. 99-11247
______________
PERFORMANCE PRINTING CORP.,
Plaintiff - Appellee,
vs.
UPPER DECK COMPANY,
Defendant - Appellant.
---------------------------------
Appeal from the United States District Court
for the Northern District of Texas, Dallas
(3:98-CV-35-R)
January 30, 2001
Before BARKSDALE, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:*
This case involves a contract dispute arising out of an
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R. 47.5.4.
agreement pursuant to which Performance Printing Corporation
(“Performance”) was to provide The Upper Deck Company (“Upper
Deck”) with printed plastic sports trading cards. After careful
consideration of the arguments and evidence before us, we affirm
in part and reverse in part the judgment of the district court.
Because we find sufficient evidence in the record to support the
jury’s award and that such award was not inconsistent with the
jury’s other special verdict answers, we conclude that the
district court erred in reducing the amount of damages awarded to
Performance. We affirm the district court’s grant of attorneys’
fees to Performance.
FACTS
Performance is a printer located in Dallas, Texas where it
operates several high-speed, multi-color printing presses. Upper
Deck creates sports cards, either for sale or in conjunction with
a promotion offered by another company. In 1997, Upper Deck
received a contract to produce collectible hockey cards for a
promotional sweepstakes conducted by McDonalds of Canada. Upper
Deck then contracted with Performance to print the cards. Their
agreement called for Performance to purchase the supplies
necessary to produce the cards and for Upper Deck to reimburse
Performance for the supplies and labor in three payments totaling
$810,000. Instead of making the first scheduled payment of
$250,000 on November 3, Upper Deck sent a check for $200,000.
2
The parties agreed that Upper Deck’s underpayment would be
corrected by increasing the payment due on December 8 from
$250,000 to $300,000. Upper Deck failed to make this next
payment and its January 5 payment of $310,000.
On January 7, 1998, Performance filed suit against Upper
Deck claiming breach of contract and fraud. Upper Deck
counterclaimed and raised affirmative defenses. After a seven
day trial, the jury found in favor of Performance on its breach
of contract claim and awarded Performance $500,000. The jury
denied Performance recovery on its fraud claim against Upper
Deck. The jury also found that Upper Deck had failed to prove
its counterclaims/affirmative defenses of waiver, estoppel,
breach of contract, negligent misrepresentation, and negligence.
Upon entering judgment, the district court reduced the amount of
the award to $300,000. After a subsequent hearing, the district
court also awarded Performance’s attorneys $124,400.67 in fees.
Performance appeals the district court’s reduction of the jury
award. Upper Deck appeals the award of attorneys’ fees to
Performance.
ANALYSIS
The district court, ruling orally from the bench, reduced
the jury award finding that “with respect to the damage figure of
$500,000 . . . the evidence does not support that figure.”1 We
1
In their briefs and at oral argument, the parties disputed the
basis of the district court’s ruling. Upon ordering the transcript of
3
review the district court’s decision de novo, "applying the same
legal standard as did the trial court." Omnitech Int'l, Inc. v.
Clorox Co., 11 F.3d 1316, 1322-23 (5th Cir. 1994). Accordingly,
judgment as a matter of law is proper after “a party has been
fully heard on an issue, and there is no legally sufficient
evidentiary basis for a reasonable jury to find for that party on
that issue." Fed. R. Civ. P. 50(a). Under this standard, we
view all of the evidence in the light most favorable to the
verdict and reverse only if the evidence points "so strongly and
overwhelmingly in favor of one party that the court believes that
reasonable [jurors] could not arrive at any contrary conclusion."
Boeing v. Shipman,
411 F.2d 365, 374 (5th Cir. 1969) (en banc).
We find that the jury was not unreasonable in concluding
that Upper Deck (1) breached the contract by not making the
agreed upon payment; and (2) still owed Performance $500,000
under the contract. From the evidence presented by the parties,
it is clear that each side experienced unforeseen difficulties in
performing the contract. At trial, Performance alleged that
Upper Deck continually made significant changes to the design of
the cards, including the addition of a separate form.
Performance also showed that it fronted the entire cost of the
supplies necessary for the printing. The crux of Upper Deck’s
the hearing, we are convinced that the district court based its ruling
on the sufficiency of the evidence.
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counterclaims is that Performance delivered an inadequate number
of “good,” or conforming, cards. The jury’s verdict reasonably
reconciled the conflicting evidence and competing claims
presented by the parties. Accordingly, we find the district
court erred in reducing the award of damages.2
Because they raised the issue before the district court and
raise it again here, we must address Upper Deck’s assertion that
the jury’s response to Question 3 was inconsistent with its
answers to Questions 1 and 2.3 Its argument assumes Question 3
is merely cumulative, directing the jury to tabulate the totals
discerned from its answers to Questions 1 and 2.4 The district
2
For the same reason, we reject Performance’s argument urging
us to upset the jury’s award and find as a matter of law it is
entitled to $623,900.
3
Upper Deck also contends that the district court’s question
to the jury on the issue of damages (Question #3) was not correctly
worded. Our Court has firmly recognized that the failure to object
to the wording of a special issue prevents a party from objecting
to such wording on appeal. McDaniel v. Anheiser-Busch, Inc., 987
F.2d 298, 306 (5th Cir. 1993); see Fed. R. Civ. P. 51 (“No party
may assign as error the giving . . . [of] an instruction unless
that party objects thereto before the jury retires to consider its
verdict . . .”). Upper Deck did not object to Question 3 during
the charge conference, prior to its submission to the jury, and is
therefore prevented from raising the issue for the first time
before this Court.
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ALLEGED BREACH OF CONTRACT BY UPPER DECK
Question 1
Did Performance prove that Upper Deck breached its contract to
pay $300,000 to Performance no later than December 8, 1997?
Answer: Performance did prove.
Question 2
Did Performance prove that Upper Deck breached its contract to
pay $310,000 to Performance in January 1998?
5
court’s intent in framing Question 3 as it did is unclear.
However, consistent with long standing principles of
interpretation, special verdict questions should not be read as
irrelevant, superfluous, or cumulative when, as here, there is a
reasonable interpretation of the questions which gives each
independent effect. See Mackey v. Lanier Collection Agency &
Service, Inc., 486 U.S. 825, 837,
108 S. Ct. 2182, 2189
(1988)(statute should not be construed to render other provisions
superfluous); Transitional Learning Community, Inc. v. United
States Office of Personnel Management,
220 F.3d 427, 431 (5th
Cir.2000) ("[A] contract should be interpreted as to give meaning
to all of its terms -- presuming that every provision was
intended to accomplish some purpose, and that none are deemed
superfluous.").
With this admonition in mind, Question 3 should be construed
as a distinct question allowing the jury to fashion the
appropriate damages based on all of the evidence. Under this
construction, Questions 1 and 2 were designed only to establish
Answer: Performance did not prove.
If you answered “Performance did prove” to Question 1, and/or
answered “Performance did prove” to Question 2, then answer this
question. Otherwise, do not answer this question.
Question 3
What amount of money, if any, do you find to be due and unpaid
by the Defendant to the Plaintiff pursuant to the contract?
Answer: $500,000.
6
liability for breach, i.e., did Upper Deck breach the contract by
not making a required payment. Thus, the dollar amounts
contained therein are simply descriptive of the payment and
irrelevant to the damages calculation. Such a construction gives
operative effect to each question and avoids rendering any
question redundant or superfluous. We, therefore, conclude that
Question 3 was properly read and answered by the jury as asking
for the total measure of damages that would compensate
Performance for Upper Deck’s breach; as such, there was no
inconsistency in the jury’s special verdict answers.
Texas law allows a party to “recover reasonable attorney’s
fees from an individual or corporation, in addition to the amount
of a valid claim and costs, if the claim is for . . . an oral or
written contract.” TEX. CIV. PRAC. & REM. CODE ANN. § 38.001 (West
1997). In its Memorandum Opinion and Order of August 23, 1999,
the district court ordered Performance’s attorneys to segregate
their fees for the breach of contract and fraud claims, limiting
Performance’s recovery to fees relating to the contract claim.
Upper Deck now argues that the district court should have further
segregated Performance’s attorneys’ fees. We review the district
court’s award of attorneys’ fees authorized by statute for abuse
of discretion. Riley v. City of Jackson, Mississippi, 99 F.3d
757, 759 (5th Cir.1996). Upper Deck’s argument relies on the
premise that Performance brought two separate contract claims and
7
prevailed on one of them. This argument is wholly without merit.
There was only one contract between Upper Deck and Performance.
Upper Deck cannot manufacture a second contract claim because
Performance alleged separate instances in which Upper Deck’s
conduct breached the original contract. The jury’s affirmative
answer to Question 1 means Performance proved its breach of
contract claim and is entitled to recover attorneys’ fees
thereupon.
CONCLUSION
We hold that the district court erred in reducing the amount
of the jury award. We find sufficient evidence in the record to
support the jury’s verdict on damages. Further, the jury’s
special verdicts answers were not inconsistent. Regarding the
disputed attorneys’ fees, Performance proved its breach of
contract claim and is entitled to recovery under the statute.
We, therefore, affirm the district court’s award of attorneys’
fees and reverse the district court’s judgment reducing the
amount of the jury award. The case is remanded to the district
court for entry of judgment consistent with this opinion.
8
