Houston Poly Bag I, Ltd v. Ken Kujanek
370 S.W.3d 82
Tex. App.2012Background
- Poly Bag sues Kujanek for breach of fiduciary duty, breach of contract, and tortious interference; Kujanek counterclaims breach of contract.
- Kujanek allegedly engaged in Outside Transactions (brokering deals for non-Poly Bag products) during 1990–2007; commissions earned in 2000–2005.
- Wailes and Oden were Poly Bag sales managers; evidence suggests they knew or should have known of Outside Transactions.
- Poly Bag discovers Outside Transactions in 2007; sues September 2007, seeking fiduciary-duty, contract, and tort damages.
- Jury finds no breach of employment agreement, breach of fiduciary duty existed but discovered late; damages awarded to Poly Bag were modest and ultimately the trial court entered a take-nothing judgment.
- Trial court denied Poly Bag’s motion for new trial; appellate court affirms, holding discovery rule satisfied and continuing-tort doctrine waived.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legal sufficiency of discovery-rule finding | Poly Bag argues insufficiency to support discovery date. | Kujanek argues evidence supports discovery date. | Sufficient evidence supports September 1, 1996 discovery date. |
| Factually sufficient support for discovery-rule finding | Poly Bag asserts record not overwhelming. | Kujanek contends record supports finding. | Findings not against the weight of the evidence; upheld. |
| Trial court denial of new trial based on many breaches within four years | Poly Bag contends breaches within period warrant new trial. | Kujanek argues no reversible error; damages misalignment. | No abuse of discretion; new trial denial affirmed. |
| Continuing-tort doctrine applicability | Poly Bag argues continuing-tort theory tolls limitations. | Kujanek contends doctrine not argued; waived. | Waived; continuing-tort not preserved; no reversal on this ground. |
| Imputation of knowledge of sales managers to Poly Bag | Knowledge of Wailes and Oden imputable to Poly Bag. | Asserted managers were not agents; burden on proof. | Evidence supports imputing knowledge to Poly Bag; not error. |
Key Cases Cited
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standard for reviewing factual sufficiency with deference to juries)
- Osterberg v. Peca, 12 S.W.3d 31 (Tex. 2000) (unobjected-to instruction not grounds to reweigh evidence)
- Hirschfeld Steel Co. v. Kellogg Brown & Root, Inc., 201 S.W.3d 272 (Tex. App.—Houston [14th Dist.] 2006) (reviewing unobjected jury instructions; standard remains)
- Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (Tex. 1998) (weighing evidence in sufficiency review; when to defer to jury)
- Kroger Co. v. Brown, 267 S.W.3d 320 (Tex. App.—Houston [14th Dist.] 2008) (common meaning of terms in jury questions; sufficiency measure)
- El Paso Elec. Co. v. Raynolds, Holding Co., 100 S.W.2d 97 (Tex. 1937) (early case on discovery and limitations principles)
- Markwardt v. Texas Indus., Inc., 325 S.W.3d 876 (Tex. App.—Houston [14th Dist.] 2010) (continuing tort considerations in Texas)
- Dickson Construction, Inc. v. Fidelity and Deposit Co. of Maryland, 960 S.W.2d 845 (Tex. App.—Texarkana 1997) (continuing-tort concept contrasted with discovery rule)
- Creditwatch, Inc. v. Jackson, 157 S.W.3d 814 (Tex. 2005) (continuing-tort doctrine and limitations interplay)
- Woods v. William M. Mercer, Inc., 769 S.W.2d 515 (Tex. 1988) (waiver principle; need for affirmative pleading/raising)