Appellate Blog

I recently won an appellate case that involved an issue that I had not encountered before, so I thought it was worthwhile sharing.

In K Griff Investigations, Inc. v. Cronin, No. 14-19-01020-CV, 2021 WL 3629214 (Tex. App.—Houston [14th Dist.] 2021, no pet.), negotiations for the purchase of the plaintiff’s business fell apart. The plaintiff sued various parties involved in the discussions and negotiations, including the parties interested in the purchase and the lender, for, among other things, negligent misrepresentation.

Against the lender, the jury found in favor of the plaintiff, but only awarded a nominal amount of damages that was less than a settlement credit claimed by the defendants, resulting in a take-nothing judgment against the plaintiff. The final take-nothing judgment adopted the jury’s finding against the lender. The plaintiff decided to appeal, but before doing so, the lender asked for an award of costs as the prevailing party. The trial court denied the request, noting that the plaintiff secured a liability finding against that party.

On appeal, the lender raised a cross-point of error that the jury’s liability finding was not supported by legally sufficient evidence. During the oral argument, one of the justices asked whether the court of appeals has the ability to strike out the final judgement’s adoption of the finding against the lender in light of the fact that the lender has a take-nothing judgment in his favor.

I submitted a post-argument brief, explaining that the Texas Rule of Appellate Procedure 43.1(b) gives the court of appeals the power to modify any aspect of a trial court’s judgment that legally sufficient evidence does not support. See Tex. R. App. P. 43.1(b) (“The court of appeals may … modify the trial court’s judgment and affirm it as modified”); see also Mobley v. State of Texas, No. 07-05-0072-CR, 2006 WL 908603 (Tex. App.—Amarillo April 10, 2006); and Morgan v. State of Texas, No. 05-96-00580-CR, 1997 WL 797001, *2 (Tex. App.—Dallas Dec. 30, 1997). 

The court of appeals agreed, and, in its memorandum, it found that no legally sufficient evidence supported the jury’s liability finding against the lender. This not only confirmed that the lender did nothing wrong in connection with the sale that feel through, but it also paved the way for him to recover his taxable costs of court.