                                     NO. 07-04-0357-CV

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL E

                                   AUGUST 29, 2006
                            ______________________________

                      TRIDENT STEEL CORPORATION, APPELLANT

                                              V.

                          THE WISER OIL COMPANY, APPELLEE
                          _________________________________

                FROM THE 121ST DISTRICT COURT OF TERRY COUNTY;

                   NO. 16394; HONORABLE KELLY G. MOORE, JUDGE
                          _______________________________


Before REAVIS and CAMPBELL, JJ., and BOYD, S.J.1


                                           OPINION


      Trident Steel Corporation appeals a judgment in favor of Wiser Oil Company for

breach of contract and fraud in connection with the sale of oilfield tubing and casing that

failed during use. We modify the trial court’s judgment and affirm it as modified.




      1
          John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
                           Factual and Procedural Background


        In May 2001 Wiser ordered 890 joints of production tubing from Trident. The order

was based on a written quote from Trident for new 2 7/8-inch steel tubing that complied

with American Petroleum Institute specification J-55, was electrical resistance welded and

“full body normalized2 after upset.” The quote and subsequent invoice also reflected that

the tubing was manufactured by the C.A. Conduven steel mill in Venezuela. Wiser ordered

an additional 660 joints of tubing meeting the same requirements in July 2001. Trident,

located in St. Louis, Missouri, purchased the tubing from Fremak Industries, Inc. and

Tradearbed, Inc. It then contracted with Tubular Services, L.P., of Houston, to receive the

tubing, upset and thread the ends and perform the normalizing process. On performance

of its tasks, Tubular certified the tubing met the API J-55 specification. After delivery in

Odessa, Wiser hired ICO Worldwide Inc., also of Odessa, to coat the inside of the tubing.


        During the summer of 2001 Wiser installed tubing from Trident and other sources

in several wells in its Wellman unit in Terry County. Failure of a submersible pump in one

well, the no. 2-1 well, in early October required pulling the tubing and pump. During that

operation some of the joints obtained from Trident became crimped. When the entire string

was removed Wiser found some 76 of 220 joints from Trident had suffered crimping or

were bent. None of the 35 joints in the string manufactured by Hyundai were crimped or

bent.




        2
         Normalizing is a heat-treating process used to strengthen the steel by making its
internal structure more uniform.

                                             2
       In November 2001, Wiser experienced similar problems on another well where it had

used Trident tubing, the Wellman 5-5. Testimony indicated that 67 of approximately 250

joints of tubing later pulled from the 5-5 well were visibly bent.


       When Wiser later pulled the tubing from a third Wellman well, it found 64 joints of

bent tubing. Wiser’s production foreman on the Wellman unit testified that during the

previous two-and-a-half years the company had pulled some twenty thousand joints of

tubing acquired from parties other than Trident and none suffered crimping or bending.

Wiser notified Trident of the problems on the Wellman 2-1 the day after pulling the tubing

and submitted two samples to Tubular for testing.


       In December 2001, Wiser ordered 1500 feet of 9 5/8-inch casing from Trident. The

contract required the casing to comply with the J-55 specification and be manufactured by

Conduven. The casing was delivered to a Wiser well then being drilled in Lavaca County,

where all but a few feet shortly was installed as surface casing. Wiser resumed drilling, but

within three days after installation of the surface casing, the drill string became hung in the

casing at a depth of 300 feet. After the crew managed to remove the drill string, downhole

measurements were performed, revealing that four joints of the casing had partially

collapsed and were no longer round. Wiser abandoned the well, moved the drilling rig to

the side and drilled a new well. Wiser did not pay the invoice for the casing.




                                              3
       An analysis of the damaged Wellman 2-1 tubing performed by Wiser’s expert

revealed yield strength significantly below that required by the API specification.3 In May

2002 Wiser filed suit against Trident and Tubular, asserting claims for breach of contract,

breach of warranties, strict liability, negligence and negligent misrepresentation. Trident

joined Fremak Industries, Inc., Tradearbed, Inc., and Conduven as third party defendants.4

Trident’s pleadings alleged it purchased the tubing and casing from Fremak and

Tradearbed, who had purchased it from Conduven. It also asserted a counterclaim against

Wiser for payment for the casing.


       The trial court granted summary judgment in favor of Fremak and Tradearbed.

Through discovery, Wiser learned some of the tubing Trident supplied was manufactured

by steel mills in Romania (Silcotube) and Argentina (Acindar) rather than Conduven. By

amended petitions Wiser added a claim for fraud and sought exemplary damages, and

added a claim for conspiracy between Trident and Tubular.


       At the nine-day jury trial, Wiser’s experts attributed the crimps and bends in the

tubing and the collapse of the casing to defects in the steel and to improper performance

of the normalizing process. At the trial’s conclusion, the jury charge first presented



      3
        Tests performed by other consultants reached different conclusions. An early letter
from Tubular to Trident stated the tubing met the J-55 requirements and the crimping was
the result of “a material handling problem.”
       4
        An affidavit from one of Trident’s attorneys recites it never obtained service of
process on Conduven. The failure to obtain service of process on a defendant is treated
as a nonsuit as to that party for purposes of determining whether the challenged judgment
disposed of all parties and issues. Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d
230, 232 (Tex. 1962).

                                            4
questions on each of Wiser’s claims concerning the tubing–breach of contract, fraud,

conspiracy, breach of warranty and strict liability. A second group of questions addressed

Wiser’s casing claims–breach of contract, breach of warranty, strict liability and negligence.

The jury found there was no conspiracy between Trident and Tubular. The jury’s answers

supported all of Wiser’s other claims against Trident, but none against Tubular. It found

Wiser’s reasonable attorney’s fees through trial were $357,322 and awarded exemplary

damages on the fraud claim of one dollar.


       Wiser elected to recover on its breach of contract and fraud claims. The trial court

rendered judgment that Wiser recover from Trident damages of $1,046,199, together with

pre and post judgment interest. It ordered Wiser take nothing against Tubular Services,

L.P.5 and Trident take nothing against Wiser. A judgment nunc pro tunc added the dates

for calculation of prejudgment interest.


                                     Issues on Appeal


       Trident now presents sixteen issues on appeal. Those issues fall into six areas:

whether the law and facts support Wiser’s claims for breach of contract (issues 2, 3, 10);

if not, did the election to recover for breach of contract estop Wiser from recovery on other

theories (issue 1); whether the evidence supports claims for breach of warranty (issues 4,

5, 6, 7); and whether Wiser can recover on its fraud claim and recover exemplary damages

(issues 8, 9, 11, 12). The final issue in Trident’s original brief concerns the trial court’s



       5
        Tubular Services, L.P., and Fremak Industries, Inc. filed briefs generally urging
affirmance of the trial court’s judgment.

                                              5
failure to render judgment for Trident on its counterclaim for payment on the casing

contract. Three issues raised in a supplemental brief challenge the judgment nunc pro

tunc. We address Trident’s issues in these groupings.


                                     Breach of Contract


       By its second and third issues, Trident contends that Wiser’s claims based on

defects in the tubing and casing lay in breach of warranty rather than breach of contract.


       The parties agree the transactions at issue are governed by articles one and two of

the Texas version of the Uniform Commercial Code. Tex. Bus. & Com. Code Ann. §§

1.101 - 2.725 (Vernon 1994 & Supp. 2005).6 The code displaces common law rules

regarding breach of contracts within its scope. Glenn Thurman, Inc. v. Moore Const., Inc.,

942 S.W.2d 768, 771 (Tex.App.–Tyler 1997, no writ).


       Trident first argues that undisputed evidence it delivered goods under the contracts

precludes Wiser’s breach of contract claims as a matter of law. Trident contends the facts

of this case fit squarely within a holding it finds in Southwestern Bell Tel. Co. v. FDP Corp.,

811 S.W.2d 572 (Tex. 1991), that there can be no breach of contract when a seller delivers




       6
         We note the invoices from Trident recite the agreements are governed by the law
of Missouri. The parties do not address this choice of law provision. Without evidence of
Missouri law we are permitted to assume it is the same as Texas law. Fraud-Tech, Inc. v.
Choicepoint, Inc., 102 S.W.3d 366, 378 (Tex.App.–Fort Worth 2003, pet. denied). Missouri,
of course, like Texas, has adopted the Uniform Commercial Code. See Mo. Rev. Stat. §§
400.1-101 - 400.10-102 (2006). Unless otherwise noted, subsequent section references
in this opinion are to the Business and Commerce Code.

                                              6
a product, even if the product is defective. We do not agree the court made the holding

asserted by Trident.


       In Southwestern Bell, FDP contracted with Southwestern Bell for two listings and an

advertisement panel in its telephone directory. Southwestern Bell expressly warranted the

advertisement would be published correctly. Id. at 573. When the panel was not printed,

FDP sued for negligence and violation of the Deceptive Trade Practices Act based on

breach of the warranty against errors. Id. at 574. Southwestern Bell argued FDP’s

exclusive remedy was for breach of contract, not breach of warranty. The supreme court

noted the UCC did not strictly apply to the service contract at issue, but because the UCC

was based on common law principles, reference to the code was “instructive.” Id. at 575.


       En route to its holding there was some evidence supporting the jury finding the

defective performance was a breach of the warranty to publish the advertising correctly, the

court made the following statement:


       The UCC recognizes that breach of contract and breach of warranty are not
       the same cause of action. The remedies for breach of contract are set forth
       in section 2.711, and are available to a buyer “[w]here the seller fails to make
       delivery.” Tex. Bus. & Com. Code § 2.711(a). The remedies for breach of
       warranty, however, are set forth in section 2.714, and are available to a buyer
       who has finally accepted goods, but discovers that the goods are defective
       in some manner.


811 S.W.2d at 576. In its reference to section 2.711(a), the court quoted only a portion of

the section. The full clause of the statute provides that remedies under section 2.711 are

available, “Where the seller fails to make delivery or repudiates or the buyer rightfully

rejects or justifiably revokes acceptance[.]” Tex. Bus. & Com. Code Ann. § 2.711(a)

                                              7
(Vernon 1994). The court apparently omitted the reference to rejection or revocation of

acceptance because it found FDP did not have the option to accept or reject Southwestern

Bell’s performance of the contract for services when the annual directory had already been

published. Id. at 576. Unlike the buyer in Southwestern Bell, the nature of the transaction

in this case did not preclude Wiser from rejecting the goods or revoking acceptance of

them.


        Trident’s reading of Southwestern Bell is contrary to the manner in which it has been

applied in subsequent cases governed by the UCC.              In Paul Mueller Co. v. Alcon

Laboratories Inc., 993 S.W.2d 851 (Tex.App.–Fort Worth 1999, no pet.), the buyer of

stainless steel tanks sued the seller for breach of contract and breach of warranty when the

tanks rusted after installation. Id. at 853. It was undisputed the seller delivered tanks. The

court held the buyer could assert a cause of action for breach of contract where acceptance

had been revoked in accordance with section 2.608 of the Business and Commerce Code.

Id. at 855. In Toshiba Machine Co. v. SPM Flow Control, 180 S.W.3d 761 (Tex.App.–Fort

Worth 2005, pet. granted, judgm’t vacated w.r.m.),7 the court rejected the same argument

Trident makes here, that delivery of a product precludes a breach of contract claim, even

if the product is defective. Id. at 776. As these cases illustrate, it is the buyer’s acceptance

or rejection of goods which determines the remedies available to the buyer, not the seller’s

mere delivery of something. See Id. at 771, 776. This view is compelled by the plain


        7
         In accordance with Rule of Appellate Procedure 56.3 the supreme court vacated
the court of appeals judgment without regard to the merits and remanded for
implementation of a settlement agreement. This disposition did not vacate or disapprove
of the court of appeals opinion. Houston Cable TV, Inc. v. Inwood West Civic Ass'n, 860
S.W.2d 72, 73 (Tex. 1993); Tex. R. App. P. 56.3.

                                               8
language of section 2.711(a). See also Brooks, Tarlton, Gilbert, Douglas & Kressler v. U.S.

Fire Ins. Co., 832 F.2d 1358, 1374 (5th Cir. 1987) (noting under UCC remedies

distinguished based on “delivery and acceptance” of goods); Gary D. Spivey, Annotation,

Measure and Elements of Buyer’s Recovery Upon Revocation of Acceptance of Goods

Under UCC § 2-608(1), 65 A.L.R.3rd 388 (1975).8


       Trident also contends Wiser’s conduct in paying for the tubing and installing both the

tubing and casing was a final acceptance of the goods. It asserts the judgment on Wiser’s

breach of contract claim should be reversed and rendered “because the goods were

delivered, accepted, paid for and not rejected.”9


       We cannot agree that Wiser accepted the tubing merely by paying for it. Payment

is one circumstance tending to signify acceptance of tendered goods but it neither

conclusively establishes acceptance nor precludes revocation of acceptance. Tex. Bus.

& Com. Code Ann. § 2.606 cmt. 3 (Vernon 1994); see Toshiba Machine, 180 S.W.3d at

774-75 (jury finding of revocation of acceptance affirmed despite payment).




       8
         Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894 (Tex.App.–Houston [1st
Dist.] 2002, no pet.), contains language that may be read as supportive of Trident’s
position, but, as the opinion makes clear, no issue of rejection of the rebuilt engine or
revocation of its acceptance was raised in that case. Id. at 897.
       9
          Trident sometimes states this argument in terms of sufficiency of the evidence
supporting the jury’s finding. A legal sufficiency challenge is to be sustained when, inter
alia, the evidence conclusively establishes the opposite of a fact vital to a plaintiff’s case.
Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

                                              9
       Relying on section 2.606(a)(3),10 Trident also argues Wiser’s use of the goods was

an act inconsistent with Trident’s ownership and precluded their rejection. We first consider

the tubing. Wiser contends that even if it accepted the tubing, the evidence supports a

conclusion it revoked its acceptance.11 We agree. Revocation of acceptance is governed

by section 2.608, which Trident does not address. Under (a) of that section a buyer may

revoke acceptance of goods whose non-conformity with the contract substantially impairs

its value to him if the buyer accepted “(1) on the reasonable assumption that its non-

conformity would be cured and it has not been seasonably cured; or (2) without discovery

of such non-conformity if his acceptance was reasonably induced either by the difficulty of

discovery before acceptance or by the seller’s assurance.” Section 2.608 recognizes that

a buyer may revoke acceptance when use of goods reveals a latent defect. Paul Mueller

Co., 993 S.W.2d at 855-56.12



       10
            Section 2.606(a) provides acceptance of goods occurs when the buyer:

       (1) after a reasonable opportunity to inspect the goods signifies to the seller
       that the goods are conforming or that he will take or retain them in spite of
       their non-conformity; or
       (2) fails to make an effective rejection (Subsection (a) of Section 2.602), but
       such acceptance does not occur until the buyer has had a reasonable
       opportunity to inspect them; or
       (3) does any act inconsistent with the seller’s ownership[.]
       11
       Revocation of its acceptance of nonconforming goods entitles the buyer to the
same remedies as for rejected goods. § 2.608(c).
       12
         A buyer’s continued use of goods even after notice of nonconformity may not
prevent revocation of acceptance if the use was reasonable. See Toshiba Machine, 180
S.W.3d at 772-73 (jury finding of revocation upheld where buyer used machines for 17,000
hours over four years while seller made assurances it would cure nonconformity). See also
Deere & Co. v. Johnson, 271 F.3d 613, 620 (5th Cir. 2001) (applying Mississippi version
of UCC).

                                             10
       Wiser contended the tubing did not conform to the contract because it did not meet

the API J-55 specification and because some tubing (3/7ths of the total purchased) did not

originate at the Conduven steel mill. These defects alleged by Wiser were latent defects.

The evidence showed Wiser was not aware of any non-conformity before the tubing was

run into the wells. Visual inspection revealed no defects. The evidence also showed that

compliance with the J-55 specification is determined through destructive testing,13 and that

only some of the tubing bore any indication of its origin.14 This evidence established the

difficulty of discovering non-conformity. See § 2.608(a)(2). Moreover, both the invoices

from Trident and attached certificates from Tubular Services were assurances the goods

were in conformity with the contracts. The requirements of section 2.608(a) were satisfied.


       Section 2.608(b) requires revocation to occur “within a reasonable time after the

buyer discovers or should have discovered the ground for it and before any substantial

change in condition of the goods which is not caused by their own defects. [Revocation] is

not effective until the buyer notifies the seller of it.” Trident argues that Wiser’s use of

tubing in the 2-1 well for more than 100 days before it notified Trident of any defect was not

notification within a reasonable time. But we find no evidence Wiser discovered, or should

have discovered, defects in the tubing before it was pulled from the 2-1 well. It is

undisputed that Wiser contacted Trident promptly after it discovered the failure of the tubing



       13
          In A.O. Smith Corp v. Elbi S.p.A., 56 UCC Rep. Serv. 2d 360, 2005 WL 408145,
slip op. at 5 (5th Cir. 2005), the court affirmed a judgment based on a jury finding that post-
failure revocation was timely over seller’s argument buyer should have performed
destructive testing.
       14
            Some of the tubing was stamped Venezuela, where the Conduven mill is located.

                                              11
in that well. Trident set up a claim file within a few days of the failure and requested Wiser

to send samples of the tubing to Tubular for testing.


       With respect to the casing, Wiser contends the evidence supports a finding it

rejected the casing. Trident acknowledges that Wiser did not pay Trident’s invoice for the

casing.


       As with the tubing, evidence showed that visual inspection of the casing revealed

no defects, and Trident does not contend Wiser had any knowledge of problems with the

casing before it was run into the well. Under these circumstances, we cannot agree with

Trident’s contention that Wiser’s placing the casing in the wellbore was an act inconsistent

with Trident’s ownership that precluded Wiser’s rejection of the casing when it learned, a

few days later, that it had collapsed. The Texas cases in which a buyer’s use of purchased

goods has been held to preclude their rejection involve the buyer’s use of the goods with

knowledge of their nonconforming nature. See Bacchus Indus. Inc., v. Frontier Mechanical

Contractors, 36 S.W.3d 579 (Tex.App.–El Paso 2000, no pet.); Explorers Motor Home

Corp. v. Aldridge, 541 S.W.2d 851 (Tex.Civ.App.–Beaumont, 1976, writ ref’d n.r.e.); Bowen

v. Young, 507 S.W.2d 600 (Tex.Civ.App.–El Paso 1974, no writ); see also Toshiba, 180

S.W.3d at 772; Kuiper v. Wright, No. 05-99-0689-CV, 2001 WL 923367 (Tex.App.–Dallas,

Aug. 16 2001, no pet.) (not designated for publication).15




       15
        One treatise on the Uniform Commercial Code goes so far as to argue that “acts
done in ignorance of defects which [the] buyer could not have discovered are never
covered by 2-606(1)(c)” (the UCC equivalent of Tex. Bus. & Com. Code § 2.606(a)(3)). J.
White & R. Summers, Uniform Commercial Code, § 8-2 (4th ed.).

                                             12
       Trident’s other argument in support of its second and third issues is that jury

questions 1 and 14 do not support recovery for breach of contract but breach of warranty.

Question 1 asked:


       Did Trident Steel Corporation fail to provide the Wiser Oil Company 2-7/8 in
       diameter, API grade J55, electrical resistance welded (ERW) tubing that had
       been heat treated to achieve full body normalization and, if so was such
       failure a producing cause of damages.


Question 14 was substantially similar but addressed the casing. Wiser argues Trident did

not preserve the complaint it raises about the questions on appeal. Trident’s complaint in

its brief focuses on use of the term “producing cause” in the questions. Citing the pattern

jury charges, it contends the term “producing cause” may be appropriate in jury questions

concerning breach of implied warranty but has no place in a breach of contract question.

An objection to a jury charge must point out distinctly the objectionable matter and the

grounds of the objection. Tex. R. Civ. P. 274; Iron Mountain Bison Ranch, Inc. v. Easley

Trailer Mfg., Inc., 42 S.W.3d 149, 156 (Tex.App.–Amarillo 2000, no pet.). At trial, Trident

objected that no evidence supported the submission of a breach of contract question.16 We

agree the objection did not preserve an appellate contention that the questions were

defectively worded.




       16
          Trident’s objection stated: “And the other objection, your Honor, would be to the
. . . submission of an issue on breach of contract since it’s the issue we believe is one of
breach of warranty, which there’d be no evidence to support Question Number 14.” In its
context, and reading it liberally, we construe the objection as addressing Question 1 also.

                                            13
       We overrule Trident’s second and third issues. This disposition also disposes of

Trident’s tenth issue contending the award of attorney’s fees was improper because Wiser

had no cause of action for breach of contract. That issue is likewise overruled.


                             Fraud and Exemplary Damages


       We next address Trident’s group of issues challenging the findings and judgment

on Wiser’s fraud claim. Its eighth and ninth issues challenge the sufficiency of the evidence

supporting the fraud claim; its eleventh issue challenges the award of exemplary damages

and the twelfth issue contends the damages awarded for fraud constituted an impermissible

double recovery. We begin with the twelfth issue.


       The elements of fraud set out in the jury charge were (1) a material

misrepresentation, (2) made with knowledge of its falsity or made recklessly without

knowledge of its truth and as a positive assertion, (3) made with the intention it should be

acted on by the other party, and (4) the party acted in reliance on the representation and

thereby suffered injury. See Green Int’l. Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997)

(subdividing elements).


       The primary misrepresentation Wiser identified concerned Trident’s representations

the tubing would be manufactured by Conduven.            As noted, the evidence showed

approximately 3/7ths of the tubing delivered was from steel mills other than Conduven.

Trident’s president admitted he substituted tubing from the other manufacturers when he

did not have sufficient Conduven tubing available. He also admitted Tubular was instructed

not to show the source of the tubing on records that would be provided to Wiser. Trident’s

                                             14
invoices for the tubing reflected it was manufactured by Conduven.             Wiser’s brief

characterizes the misrepresentations as “in effect, a fraudulent inducement to accept

delivery” of the non-conforming tubing.


       The damages question for those caused by fraud listed the same damage elements

as were listed in the damages question for the breach of contract claim. Those elements

were the costs to replace the tubing, new internal coating costs, transportation costs, and

installation and other labor costs. Wiser does not contend that the $341,514 damages

found by the jury in response to the breach of contract damages question constituted a

lesser amount than the total costs it incurred. The $146,682 the jury awarded for fraud

damages clearly compensated Wiser for replacing a portion of the tubing for which it was

compensated by the breach of contract award. Wiser appears to argue that Formosa

Plastics Corp. v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41 (Tex. 1998),

authorizes such a duplication of damages. The court in Formosa Plastics held that a

plaintiff may recover tort damages for fraudulent inducement to enter a contract even when

the plaintiff has suffered only an economic loss recoverable under a breach of contract

claim. Id. at 47. In that case the plaintiff had elected to recover for the tort claim rather

than the breach of contract. Id. at 44. The court did not hold the plaintiff could recover the

same damages under both theories. Foley v. Parlier, 68 S.W.3d 870, 885 (Tex.App.–Fort

Worth 2002, no pet.). We sustain Trident’s twelfth issue. Our disposition of the twelfth

issue requires that we sustain Trident’s eleventh issue also, and makes consideration of

its eighth and ninth issues unnecessary.




                                             15
                                    Trident’s Counterclaim


       Trident’s thirteenth issue complains of the trial court’s failure to render judgment for

the unpaid amount on the casing contract and failure to render judgment non-obstante

veredicto for its attorney’s fees on that contract. It contends the trial court directed a verdict

in its favor on its casing contract claim. The reporter’s record is not a model of clarity on

this question but indicates the trial court denied Trident’s motion for directed verdict. The

jury charge included a question on Trident’s attorney’s fees for its contract claim, but no

other issues on that claim were submitted or requested.


       In a motion for judgment n.o.v. Trident’s challenge to the denial of its attorney’s fees

recited the trial court had granted its motion for directed verdict on its counterclaim. Wiser’s

response challenged that claim, attaching the relevant portion of the reporter’s record, and

argued denial of Trident’s counterclaim was consistent with the jury’s finding that Trident

breached the casing contract and its failure to award Trident attorney’s fees. The final

judgment denied any recovery on Trident’s counterclaim.


       Trident reasserted its claim the judge had granted a directed verdict in a post-trial

motion to modify the judgment and in a separate letter to the trial judge. The court again

rejected Trident’s argument and denied its motion to modify the judgment. The parties’

differing interpretations of the judge’s ruling was developed before the trial court. Trident

continues on appeal to insist the trial court granted its motion for directed verdict, but does

so without citation to the record or discussion of the trial court’s repeated rejection of that

position. Because the record does not reflect Trident was a prevailing party on its


                                               16
counterclaim for breach of contract, it was not entitled to recovery of attorney’s fees. Green

Int’l, 951 S.W.2d at 390. We overrule Trident’s thirteenth issue.


                                 Judgment Nunc Pro Tunc


       Trident presents three additional issues in a supplemental brief that challenge the

trial court’s rendition of a judgment nunc pro tunc. The original judgment provided Wiser

was to recover prejudgment interest at the rate of 5 percent per annum but did not state the

starting or ending dates for that interest. Wiser filed a motion for judgment nunc pro tunc

eight months later noting the omission and requesting the judgment be corrected to reflect

the party’s agreement that May 17, 2002, the date Wiser filed suit, was the correct date for

accrual of prejudgment interest. The trial court granted the motion and signed a judgment

that included the beginning and ending dates for accrual of prejudgment interest.


       Relying on Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56 (Tex. 1970) (orig.

proceeding), Trident argues the omission of prejudgment interest is a judicial error rather

than a clerical error subject to correction by judgment nunc pro tunc. In Comet Aluminum

the supreme court held the removal of prejudgment interest previously awarded was not

a clerical error. Id. at 59. Here, the trial court’s original judgment included, in a paragraph

totaling the recovery awarded Wiser against Trident, the language, “Plaintiff recover from

Defendant, pre-judgment interest at the rate of five percent (5%) per annum ($134.27 per

day) on the sum of [the total judgment].” In the face of that language, we must reject

Trident’s position the trial court’s original judgment did not include prejudgment interest.

The judgment nunc pro tunc did not alter the original judgment, but clarified it. See Mathes


                                              17
v. Kelton, 569 S.W.2d 876, 878 (Tex. 1978); cf. In re D.D.M., 116 S.W.3d 224, 231

(Tex.App.–Tyler 2003, no pet.) (judgment nunc pro tunc could not be used to change date

in original judgment). We overrule Trident’s supplemental issues.


                                         Conclusion


       Our disposition of the issues discussed makes unnecessary our consideration of

Trident’s first, fourth, fifth, sixth and seventh issues. Sustention of Trident’s eleventh and

twelfth issues requires modification of the trial court’s judgment to delete Wiser’s recovery

for fraud and related exemplary damages ($146,683). Accordingly, we modify the trial

court’s judgment to provide Wiser shall recover the sum of $899,516, and prejudgment

interest of $79,583.65 calculated at five percent per annum ($114.18 per day) on the sum

of $833,516 from May 17, 2002, through April 13, 2004. The judgment of the trial court, as

modified herein, is affirmed.




                                           James T. Campbell
                                               Justice




                                             18
