Peveto Companies, Ltd. D/B/A Brake Check v. FASA Friction Laboratories, Inc.
04-15-00570-CV
| Tex. App. | Nov 16, 2016Background
- Brake Check (Peveto Companies, Ltd.) bought Fasa brake parts for ~6 years; in 2009 they agreed Fasa would accept return of most Fasa inventory for credit after Brake Check changed inventory approach.
- The inventory return required a multi-step returns procedure (itemized list with weight/pallets, return authorization, attach RA# to pallets and follow shipping instructions).
- Dispute arose when the bulk return was never completed; emails showed conflicting evidence about whether Brake Check provided required list/weight/skid info and whether Fasa received it.
- Jury found Brake Check materially breached (failed to pay for delivered merchandise), found Fasa did not breach (did not fail to facilitate the return), and found Brake Check’s performance was not excused; damages awarded to Fasa (~$253,550.61 plus fees).
- Trial court denied Brake Check’s JNOV and new-trial motions; on appeal the Fourth Court of Appeals affirmed, holding the evidence legally and factually sufficient to support the jury’s findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Brake Check breached by failing to pay for goods | Brake Check says any unpaid balance was offset by credit for returned inventory it was entitled to return | Fasa says Brake Check failed to comply with return procedure and still owes for unpaid deliveries | Court: Evidence sufficient that Brake Check failed to pay; jury could find Fasa did not facilitate a return because Brake Check did not provide required info |
| Whether Fasa materially breached by not facilitating returns | Brake Check contends Fasa failed to follow its return policy and did not pick up/accept returns, excusing Brake Check’s performance | Fasa says it repeatedly requested itemized list, weight/skids, and offered assistance; any RA issued was blank because Brake Check failed to supply required data | Court: Evidence supports jury finding that Fasa did not breach — reasonable jurors could disbelieve Brake Check’s testimony and infer Brake Check failed to supply required information |
| Whether Brake Check’s performance was excused due to Fasa’s alleged prior breach | Brake Check argues its nonpayment was excused because Fasa breached first by not facilitating return | Fasa argues no prior breach; return process was not completed due to Brake Check’s failures | Court: Jury could reasonably conclude performance was not excused; evidence legally and factually sufficient to deny excuse defense |
| Whether trial court erred including interest in damages and whether complaint preserved | Brake Check asserts interest inclusion was unsupported by evidence | Fasa contends Brake Check failed to preserve that specific complaint and, alternatively, evidence supports interest | Court: Brake Check did not preserve challenge to interest (motions attacked liability, not damages); alternative sufficiency not reached on appeal |
Key Cases Cited
- Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194 (Tex. 2011) (legal-sufficiency standard when appellant did not bear burden)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standards for reviewing jury findings and credibility in sufficiency review)
- Dow Chemical Co. v. Francis, 46 S.W.3d 237 (Tex. 2001) (standard when appellant bore burden on challenged finding)
- Dunnagan v. Watson, 204 S.W.3d 30 (Tex. App.—Fort Worth 2006, pet. denied) (distinguishing preservation of liability vs. damages complaints)
- Wyler Industrial Works, Inc. v. Garcia, 999 S.W.2d 494 (Tex. App.—El Paso 1999, no pet.) (same)