*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this

opinion should not be published and is not precedent except under the

limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________

No. 99-11179

_____________

PERFORMANCE PRINTING CORP.,

Plaintiff - Appellant,

vs.

UPPER DECK COMPANY,

Defendant - Appellee.

_____________

No. 99-11247

______________

PERFORMANCE PRINTING CORP.,

Plaintiff - Appellee,

vs.

UPPER DECK COMPANY,

Defendant - Appellant.

---------------------------------

Appeal from the United States District Court

for the Northern District of Texas, Dallas

(3:98-CV-35-R)

January 30, 2001

Before BARKSDALE, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:*

This case involves a contract dispute arising out of an
2

agreement pursuant to which Performance Printing Corporation

(“Performance”) was to provide The Upper Deck Company (“Upper

Deck”) with printed plastic sports trading cards. After careful

consideration of the arguments and evidence before us, we affirm

in part and reverse in part the judgment of the district court. 

Because we find sufficient evidence in the record to support the

jury’s award and that such award was not inconsistent with the

jury’s other special verdict answers, we conclude that the

district court erred in reducing the amount of damages awarded to

Performance. We affirm the district court’s grant of attorneys’

fees to Performance.

FACTS

Performance is a printer located in Dallas, Texas where it

operates several high-speed, multi-color printing presses. Upper

Deck creates sports cards, either for sale or in conjunction with

a promotion offered by another company. In 1997, Upper Deck

received a contract to produce collectible hockey cards for a

promotional sweepstakes conducted by McDonalds of Canada. Upper

Deck then contracted with Performance to print the cards. Their

agreement called for Performance to purchase the supplies

necessary to produce the cards and for Upper Deck to reimburse

Performance for the supplies and labor in three payments totaling

$810,000. Instead of making the first scheduled payment of

$250,000 on November 3, Upper Deck sent a check for $200,000. 
1 In their briefs and at oral argument, the parties disputed the

basis of the district court’s ruling. Upon ordering the transcript of

3

The parties agreed that Upper Deck’s underpayment would be

corrected by increasing the payment due on December 8 from

$250,000 to $300,000. Upper Deck failed to make this next

payment and its January 5 payment of $310,000.

On January 7, 1998, Performance filed suit against Upper

Deck claiming breach of contract and fraud. Upper Deck

counterclaimed and raised affirmative defenses. After a seven

day trial, the jury found in favor of Performance on its breach

of contract claim and awarded Performance $500,000. The jury

denied Performance recovery on its fraud claim against Upper

Deck. The jury also found that Upper Deck had failed to prove

its counterclaims/affirmative defenses of waiver, estoppel,

breach of contract, negligent misrepresentation, and negligence. 

Upon entering judgment, the district court reduced the amount of

the award to $300,000. After a subsequent hearing, the district

court also awarded Performance’s attorneys $124,400.67 in fees. 

Performance appeals the district court’s reduction of the jury

award. Upper Deck appeals the award of attorneys’ fees to

Performance.

ANALYSIS

The district court, ruling orally from the bench, reduced

the jury award finding that “with respect to the damage figure of

$500,000 . . . the evidence does not support that figure.”1 We
the hearing, we are convinced that the district court based its ruling

on the sufficiency of the evidence.

4

review the district court’s decision de novo, "applying the same

legal standard as did the trial court." Omnitech Int'l, Inc. v.

Clorox Co., 11 F.3d 1316, 1322-23 (5th Cir. 1994). Accordingly,

judgment as a matter of law is proper after “a party has been

fully heard on an issue, and there is no legally sufficient

evidentiary basis for a reasonable jury to find for that party on

that issue." Fed. R. Civ. P. 50(a). Under this standard, we

view all of the evidence in the light most favorable to the

verdict and reverse only if the evidence points "so strongly and

overwhelmingly in favor of one party that the court believes that

reasonable [jurors] could not arrive at any contrary conclusion."

Boeing v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc). 

We find that the jury was not unreasonable in concluding

that Upper Deck (1) breached the contract by not making the

agreed upon payment; and (2) still owed Performance $500,000

under the contract. From the evidence presented by the parties,

it is clear that each side experienced unforeseen difficulties in

performing the contract. At trial, Performance alleged that

Upper Deck continually made significant changes to the design of

the cards, including the addition of a separate form. 

Performance also showed that it fronted the entire cost of the

supplies necessary for the printing. The crux of Upper Deck’s
2 For the same reason, we reject Performance’s argument urging

us to upset the jury’s award and find as a matter of law it is

entitled to $623,900.

3 Upper Deck also contends that the district court’s question

to the jury on the issue of damages (Question #3) was not correctly

worded. Our Court has firmly recognized that the failure to object

to the wording of a special issue prevents a party from objecting

to such wording on appeal. McDaniel v. Anheiser-Busch, Inc., 987

F.2d 298, 306 (5th Cir. 1993); see Fed. R. Civ. P. 51 (“No party

may assign as error the giving . . . [of] an instruction unless

that party objects thereto before the jury retires to consider its

verdict . . .”). Upper Deck did not object to Question 3 during

the charge conference, prior to its submission to the jury, and is

therefore prevented from raising the issue for the first time

before this Court.

4 ALLEGED BREACH OF CONTRACT BY UPPER DECK

Question 1

Did Performance prove that Upper Deck breached its contract to

pay $300,000 to Performance no later than December 8, 1997?

Answer: Performance did prove.

Question 2

Did Performance prove that Upper Deck breached its contract to

pay $310,000 to Performance in January 1998?

5

counterclaims is that Performance delivered an inadequate number

of “good,” or conforming, cards. The jury’s verdict reasonably

reconciled the conflicting evidence and competing claims

presented by the parties. Accordingly, we find the district

court erred in reducing the award of damages.2

Because they raised the issue before the district court and

raise it again here, we must address Upper Deck’s assertion that

the jury’s response to Question 3 was inconsistent with its

answers to Questions 1 and 2.3 Its argument assumes Question 3

is merely cumulative, directing the jury to tabulate the totals

discerned from its answers to Questions 1 and 2.4 The district
Answer: Performance did not prove.

If you answered “Performance did prove” to Question 1, and/or

answered “Performance did prove” to Question 2, then answer this

question. Otherwise, do not answer this question.

Question 3

What amount of money, if any, do you find to be due and unpaid

by the Defendant to the Plaintiff pursuant to the contract?

Answer: $500,000.

6

court’s intent in framing Question 3 as it did is unclear. 

However, consistent with long standing principles of

interpretation, special verdict questions should not be read as

irrelevant, superfluous, or cumulative when, as here, there is a

reasonable interpretation of the questions which gives each

independent effect. See Mackey v. Lanier Collection Agency &

Service, Inc., 486 U.S. 825, 837, 108 S.Ct. 2182, 2189

(1988)(statute should not be construed to render other provisions

superfluous); Transitional Learning Community, Inc. v. United

States Office of Personnel Management, 220 F.3d 427, 431 (5th

Cir.2000) ("[A] contract should be interpreted as to give meaning

to all of its terms -- presuming that every provision was

intended to accomplish some purpose, and that none are deemed

superfluous.").

With this admonition in mind, Question 3 should be construed

as a distinct question allowing the jury to fashion the

appropriate damages based on all of the evidence. Under this

construction, Questions 1 and 2 were designed only to establish
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liability for breach, i.e., did Upper Deck breach the contract by

not making a required payment. Thus, the dollar amounts

contained therein are simply descriptive of the payment and

irrelevant to the damages calculation. Such a construction gives

operative effect to each question and avoids rendering any

question redundant or superfluous. We, therefore, conclude that

Question 3 was properly read and answered by the jury as asking

for the total measure of damages that would compensate

Performance for Upper Deck’s breach; as such, there was no

inconsistency in the jury’s special verdict answers.

Texas law allows a party to “recover reasonable attorney’s

fees from an individual or corporation, in addition to the amount

of a valid claim and costs, if the claim is for . . . an oral or

written contract.” TEX. CIV. PRAC. & REM. CODE ANN. § 38.001 (West

1997). In its Memorandum Opinion and Order of August 23, 1999,

the district court ordered Performance’s attorneys to segregate

their fees for the breach of contract and fraud claims, limiting

Performance’s recovery to fees relating to the contract claim. 

Upper Deck now argues that the district court should have further

segregated Performance’s attorneys’ fees. We review the district

court’s award of attorneys’ fees authorized by statute for abuse

of discretion. Riley v. City of Jackson, Mississippi, 99 F.3d

757, 759 (5th Cir.1996). Upper Deck’s argument relies on the

premise that Performance brought two separate contract claims and
8

prevailed on one of them. This argument is wholly without merit. 

There was only one contract between Upper Deck and Performance. 

Upper Deck cannot manufacture a second contract claim because

Performance alleged separate instances in which Upper Deck’s

conduct breached the original contract. The jury’s affirmative

answer to Question 1 means Performance proved its breach of

contract claim and is entitled to recover attorneys’ fees

thereupon.

CONCLUSION

We hold that the district court erred in reducing the amount

of the jury award. We find sufficient evidence in the record to

support the jury’s verdict on damages. Further, the jury’s

special verdicts answers were not inconsistent. Regarding the

disputed attorneys’ fees, Performance proved its breach of

contract claim and is entitled to recovery under the statute. 

We, therefore, affirm the district court’s award of attorneys’

fees and reverse the district court’s judgment reducing the

amount of the jury award. The case is remanded to the district

court for entry of judgment consistent with this opinion.