                                     NO. 07-07-0492-CV

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL B

                                    JUNE 8, 2009
                           ______________________________

                                    BURNWOOD, INC.,

                                                                  Appellant

                                               v.

             RUSTY CAGLE d/b/a RED BOTTOMS a/k/a FLATLANDER’S,

                                                       Appellee
                         _________________________________

             FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 2006-533,942; HON. RUBEN G. REYES, PRESIDING
                       _______________________________

                                Memorandum Opinion
                          _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Burnwood, Inc. (Burnwood) appeals from a judgment entered in favor of Rusty

Cagle d/b/a Red Bottoms a/k/a Flatlander’s (Cagle). Cagle sued it and Ravan Watson and

sought damages for breach of a lease agreement and tortious interference with a business

relationship. Burnwood challenges the judgment by contending that the evidence is either

or both legally and factually insufficient to support the jury’s finding that 1) it breached the

lease because the evidence established that Cagle failed to purchase liability insurance
as required by the lease, 2) Cagle did not breach the lease agreement for the same

reason, 3) Burnwood tortiously interfered with Cagle’s business relationship because

Burnwood acted in accordance with the lease and Cagle had no right to enter into the

agreement in question, and 4) Burnwood tortiously interfered with Cagle’s business

relationship because Cagle himself breached the lease and had no right to enter into the

agreement in question. We affirm the judgment of the trial court.

       Background

       On February 2, 2001, Cagle (the lessee) entered into a lease agreement with

Burnwood (the lessor) to operate a restaurant called Flatlander’s. At that time, Burnwood

was owned by Charley Ray. The relationship was uneventful until July 2005 when Ray

died and ownership of Burnwood passed to Ray’s daughter, Ravan Watson.

       In December 2005, Cagle began negotiations with Shane Byrd to create a

partnership to operate another restaurant named Mesquites at the same location.1

Flatlander’s had been closed for cleaning and/or renovations. In January of 2006, Cagle

notified Watson that he was renewing the lease and told her of his negotiations with Byrd.

Watson was displeased and decided to end the lease. She sent Cagle a notice of

termination on January 6, 2006, a notice of default five days later, locked Cagle from the

premises shortly thereafter, and leased the property to Byrd so he could open a restaurant

named Mesquites.

       Cagle then sued Burnwood and Watson for breach of contract, tortious interference

with a business relationship, and conversion among other things.                    Burnwood


       1
       “Mesquites” was a nam e that had been used in the past by Ray and apparently belonged to
Burnwood.

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counterclaimed, asserting similar causes of action. At trial, the jury determined that

Burnwood failed to comply with the lease and intentionally interfered with Cagle’s

partnership agreement with Byrd. While the jury awarded no damages for the breach, it

awarded $38,000 as damages for the tortious interference. The trial court entered

judgment upon the verdict.

       Issues 1, 2, 3 and 4 - Breach of Contract

       In its first four issues, Burnwood challenges the legal and factual sufficiency of the

evidence to support the jury’s findings that it breached the lease agreement while Cagle

did not. We overrule the issues for the following reasons.

       First, allegations regarding the legal and factual insufficiency of the evidence

supporting a jury’s verdict must be preserved. This can be done through a motion for new

trial, if the complaint is one of factual insufficiency, TEX . R. CIV. P. 324(b), or, if one of legal

sufficiency, through motions for an instructed verdict, a judgment n.o.v., a new trial, or to

disregard a jury’s answer to a question, and an objection to the submission of a jury issue.

Steves Sash & Door Co. v. Ceco Corp., 751 S.W.2d 473, 477 (Tex. 1988).                          Yet,

irrespective of the instrument through which they are raised, the verbiage used must be

specific enough to afford the trial court opportunity to correct it. See TEX . R. APP . P.

33.1(a)(1) (stating that to preserve error the complaint must be made to the trial court via

a request, objection or motion that states “the grounds” for the ruling sought by the

complainant); TEX . R. CIV. P. 321 (stating that each point in a motion for new trial must refer

to the complaint “in such a way that the objection can be clearly identified and understood

by the court”); TEX . R. CIV. P. 322 (prohibiting the consideration of grounds for objection



                                                 3
“couched in general terms” in a motion for new trial); Arroyo Shrimp Farm, Inc. v. Hung

Shrimp Farm, Inc., 927 S.W.2d 146, 150-51 (Tex. App.–Corpus Christi 1996, no writ);

accord, Arkoma Basin Exploration Co., Inc. v. FMF Associates 1990-A, Ltd., 249 S.W.3d

380, 387 (Tex. 2008) (stating that the “cardinal rule for preserving error is that an objection

must be clear enough to give the trial court an opportunity to correct it”). Although

Burnwood filed such a motion for new trial, only one of the multiple grounds raised here

was mentioned in it. The ground pertained to the finding that Cagle did not breach the

lease. By withholding mention of the other grounds we conclude that Burnwood failed to

abide by the “cardinal rule” mentioned in Arkoma and, therefore, waived them.2

        Next, in reviewing the sufficiency of the evidence as to an issue upon which an

appellant has the burden of proof, we examine the record for evidence that supports the

jury’s actual finding while ignoring all contrary evidence. Dow Chemical Co. v. Francis, 46

S.W.3d 237, 241 (Tex. 2001); Moser v. Davis, 79 S.W.3d 162, 166 (Tex. App.–Amarillo

2002, no pet.). If no such evidence exists, we then determine whether the contrary

proposition was established as a matter of law. Dow Chemical Co. v. Francis, 46 S.W.3d

at 241. In turn, allegations of factual insufficiency require us to consider all of the

evidence; however, we cannot nullify the verdict unless it was so weak or so against the

great weight and preponderance of the evidence as to be clearly wrong and unjust. Id. at

242.




        2
          Indeed, specifying lim ited grounds could have m islead the trial court to believe that there were no
other com plaints about the verdict and judgm ent. Yet, even if all grounds were preserved, we would have
overruled them for our review of the record disclosed that they were supported by som e evidence and not
clearly wrong or unjust.

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       According to Burnwood, the jury should have found that Cagle breached that portion

of the lease requiring him to have liability insurance on the property. This is so because

the evidence was purportedly undisputed that he did not maintain such insurance. Yet,

perusal of the record shows otherwise. While Cagle stated, at one time, that he had no

such insurance, he also stated that he actually did. So too did he attempt to explain why

he initially indicated he had none. Other evidence illustrated that Burnwood uttered no

objection to the type of insurance he kept nor asserted that he was in breach until Watson

came to own Burnwood.

       Additionally, Greg Thornton, a friend of Ray’s who sometimes assisted Ray with his

business, also testified not only that Cagle always maintained insurance but also that they

had no problem about it. Thornton also stated that Ray did not maintain insurance on the

building as required by the lease and that Ray had difficulty obtaining insurance because

of the condition of the roof. See Case Corp. v. Hi-Class Business Systems of America,

Inc., 184 S.W.3d 760, 770 (Tex. App.–Dallas 2005, pet. denied) (holding that one party to

a contract cannot interfere with another party’s ability to perform).

       The foregoing constitutes some evidence supporting the determination that Cagle

did not breach the lease by failing to maintain insurance. And while that evidence was

contradicted by other evidence, the situation merely created a credibility dispute for the jury

to resolve as fact finder. Given the manner in which it did, we cannot say that weak

evidence supported the decision or that the latter was so against the great weight of the

entire evidence as to be clearly wrong.




                                              5
       Issues 5, 6, 7, and 8 - Tortious Interference with Contract

       In its next four issues, Burnwood argues that the evidence is legally and factually

insufficient to support the jury finding that it tortiously interfered with Cagle’s agreement

with Byrd. We overrule them as well.

       Again, Burnwood mentioned only one ground in its motion for new trial. That ground

consisted of the allegation that Cagle could not prosecute a cause of action sounding in

tortious interference because he himself breached the lease. Moreover, the only alleged

breach alluded to concerned his purported failure to maintain liability insurance on the

premises. Thus, the other grounds now asserted were not preserved, though evidence of

record would nonetheless lead us to conclude that they too were meritless.

       As for the ground that we can address, its viability depended upon Burnwood

successfully attacking that part of the verdict wherein Cagle was found not to have

breached the lease.       Since Burnwood was unsuccessful in that matter, the current

allegation lacks basis.

       Accordingly, we overrule all Burnwood’s issues and affirm the judgment.



                                                 Brian Quinn
                                                 Chief Justice




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