Affirmed and Memorandum Opinion filed May 10, 2016.

In The

Fourteenth Court of Appeals

NO. 14-14-00905-CV

COLORADO COUNTY OIL COMPANY, INC., DAY & NIGHT, INC., AND 

SNP BUSINESS, INC., Appellants

V.

STAR TEX DISTRIBUTORS, INC., Appellee

On Appeal from the 281st District Court

Harris County, Texas

Trial Court Cause No. 2012-43621

M E M O R A N D U M O P I N I O N

Day & Night, Inc., SNP Business, Inc., and Colorado County Oil Company, 

Inc. appeal from a final judgment awarding damages to Star Tex Distributors, Inc. 

in connection with a commercial dispute involving gasoline sales to a convenience 

store. We affirm the trial court’s judgment.
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BACKGROUND

Star Tex and Colorado County are competing “jobbers” that distribute 

gasoline. Both purchase gasoline from refiners for sale to gas stations and 

convenience stores; these retailers resell the gasoline to motorists under various 

brand names including Shell, Citgo, Valero, and Chevron. Star Tex contends it 

had an exclusive contract in place to supply gasoline from April 2011 through 

April 2012 to a Houston convenience store located at 10103 Bammel North 

Houston Road. Colorado County contends it had the contractual right to supply 

gasoline at the same location after the convenience store voluntarily switched 

distributors.

I. The Star Tex Contract

Star Tex supplied gasoline to the convenience store from April 2001 until 

May 2011. Star Tex entered a Dealer Franchise Agreement for this location with 

Day & Night on November 20, 2000. Day & Night owned the convenience store 

and the real property on which the store was located.

Pursuant to the Dealer Franchise Agreement, Star Tex agreed to sell and Day 

& Night as “Dealer” agreed to buy 60,000 gallons of Citgo-branded gasoline per 

month for 10 years. The agreement became effective in April 2001 when Day & 

Night began retail sales of gasoline supplied by Star Tex. After the initial 10-year 

term, the contract automatically renewed on a year-to-year basis unless terminated.

Under “DUTIES AND OBLIGATIONS OF DEALER,” paragraph 3(H)(14) 

of the agreement states as follows: “Dealer agrees to purchase all gasoline and 

diesel fuel from Star Tex for the term of this Agreement.” Paragraph 18, entitled 

“AMENDMENT,” states as follows: “This Agreement can only be amended by an 

agreement in writing which is [signed] . . . by both parties.” Paragraph 21, entitled 
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“BINDING EFFECT,” states as follows: “This Agreement extend[s] to any party 

buying, purchasing, leasing, renting or otherwise having control of the branded 

outlet so long as this Agreement is in effect.”

Day & Night’s president, Nizar Ali, signed the agreement. The convenience 

store’s operations were managed from 2001 until 2009 by Nizar Ali’s cousin, 

Shokat Ali, who was a Day & Night employee.1 Shokat Ali created and became 

president of a separate entity, SNP, in 2009. According to Shokat Ali, Day & 

Night leased the convenience store to SNP on May 1, 2009, while continuing to 

own the real property.

Shokat Ali purchased Nizar Ali’s shares of Day & Night in 2011 and 

became that entity’s president, secretary, and director. Shokat Ali testified that he 

became responsible for Day & Night’s liabilities and contracts based on this 

transaction. Shokat Ali simultaneously served as SNP’s president. Both entities 

operated the convenience store under the d/b/a “Dee Best.” Star Tex Vice 

President Feroz Momin testified that Star Tex did not learn of SNP’s creation, the 

2009 SNP lease, or Shokat Ali’s 2011 purchase of Day & Night’s shares until after 

litigation began.

According to Momin, Star Tex dealt primarily with Shokat Ali; Momin 

thought Shokat Ali was Nizar Ali’s partner in the convenience store. Shokat Ali 

characterized his cousin Nizar Ali as an absentee landlord.

The Dealer Franchise Agreement specified that Star Tex would provide 

Citgo-branded gasoline to Day & Night, but Star Tex did not do so. A December 

8, 2000 letter from Momin to Nizar Ali states as follows: “As per our telephone 

conversation, we are going to brand your location to Phillips, instead of Citgo. 

 

1 His name appears in the record as both “Shokat” and “Shoukat.”
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Agreement we have [signed] dated November 20, 2000 will remain the same; 

however effective date of the agreement may change to somewhere March or April 

2001 or upon completion of Phillips Branding.” Nizar Ali testified that he never 

received this letter.

Momin testified that Nizar Ali asked to switch to Phillips-branded gasoline 

within two or three weeks after signing the Dealer Franchise Agreement, and Star 

Tex complied with his request. Nizar Ali testified that Star Tex initiated the brand 

change to Phillips without his request or agreement. According to Nizar Ali, he 

acquiesced only because the brand change was announced shortly before the 

convenience store was to begin operations and he wanted to avoid delay; 

furthermore, Nizar Ali testified that Star Tex said the brand would be changed to 

Citgo within two years. On direct examination, Nizar Ali testified that he preferred 

Citgo to Phillips because “Citgo is a better brand than Phillips.” Nizar Ali was 

asked this question during cross-examination: “So really at the end of the day, you 

know, 2004, 2005, 2006, you didn’t really care whether or not it was branded 

Phillips, Chevron, or Citgo so long as it was making money and sending it over to 

you; isn’t that right?” He answered: “Right.”

Day & Night never signed a written amendment agreeing to accept Phillipsbranded gasoline from Star Tex. After the 2002 merger of Conoco Inc. and 

Phillips Petroleum Co., Star Tex paid the expenses necessary to change the 

convenience store’s signage to read “ConocoPhillips.” The convenience store 

never was branded as a Citgo retail outlet.

Momin testified that Day & Night accepted Star Tex’s gasoline deliveries 

under the Dealer Franchise Agreement for 10 years without complaint about the 

brand designation. Shokat Ali testified that Nizar Ali never complained to him 

about the Phillips branding. Shokat Ali also testified that he encountered repeated 
5

problems with Star Tex’s service including overcharges, shorted gasoline 

deliveries, and deliveries of other gasoline brands at higher prices. Momin 

testified that he received no complaints from Nizar Ali or Shokat Ali regarding the 

quality of Star Tex’s services.

Upon completion of the initial 10-year term in April 2011, Star Tex contends 

the Dealer Franchise Agreement automatically renewed for another year and 

continued in effect until April 2012. A dispute arose in May 2011 when gasoline 

purchases from Star Tex ceased and Colorado County began supplying Valerobranded gasoline to the same convenience store location under a different contract.

II. The Colorado County Contract

Colorado County began negotiating with Shokat Ali in December 2010 

about switching gasoline distributors and rebranding the convenience store. 

Colorado County and “SNP Business, Inc., Shoukat Najar Ali, President and d/b/a/ 

Dee Best Food Mart” entered into a 10-year Branded Supply Contract on January 

25, 2011.

The Branded Supply Contract identified Colorado County as “Seller” and 

SNP as “Buyer.” This contract obligated SNP to buy Valero-branded gasoline 

from Colorado County for the same convenience store Star Tex had supplied since 

2001. Colorado County agreed to pay a $50,000 “signing bonus” to SNP in 

connection with this contract.

According to Shokat Ali, in January 2011, Nizar Ali told him that no prior 

gasoline distribution contract was in place for the convenience store. In turn, 

Shokat Ali testified that he told Star Tex’s representative “this location has no 

contract.”

Momin visited the convenience story in February 2011 after hearing rumors 
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it was changing gasoline brands. According to Momin, Shokat Ali denied any 

plans to change brands. Shokat Ali testified that he did not recall such a visit or 

discussion with Momin.

Shokat Ali’s son, Sohail Ali, assisted his father in managing the convenience 

store on Bammel North Houston Road. According to Sohail Ali’s testimony, he 

called Star Tex in April or May 2011 to notify it that (1) the convenience store was 

switching to Valero-branded gas, and (2) Star Tex needed to take down the Phillips 

signage. Shokat Ali testified that he never provided a notice to Star Tex 

terminating the Dealer Franchise Agreement and, to his knowledge, no one else did 

either.

Star Tex’s last delivery occurred on May 4, 2011. Momin testified that he 

discovered the change when he visited the convenience store on May 5 or 6 and 

saw Valero signage in place. Colorado County began delivering Valero-branded 

gasoline to the convenience store on May 8, 2011.

Star Tex called Colorado County soon after discovering the change and left 

a message requesting a return call. After receiving no response, Star Tex sent an 

email to Colorado County on May 12 asserting that Colorado County was 

“interfer[ing with] . . . our agreement with” the convenience store. This email was 

followed by a May 13 letter signed by Momin and including a copy of the 

Franchise Dealer Agreement between Star Tex and Day & Night. Momin’s letter 

asserts that Colorado County’s actions in supplying gasoline to the convenience 

store constituted “interference of [c]ontractual and financial obligations.” The 

letter states: “We urge you to [s]top supplying products to [the] above-referenced 

location.” The letter continues: “[W]e are requesting you to transfer this facility 

over to Star Tex Distributors, Inc. and Star Tex will reimburse the cost involved in 

converting this facility to Valero.” Star Tex also distributes Valero-branded 
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gasoline.

Another letter to Colorado County from Star Tex’s attorney followed on 

May 18. Colorado County responded with a May 31 letter from its attorney 

denying any interference with the Dealer Franchise Agreement and stating: “Day 

& Night approached CCOC and requested that it convert the facility to Valero and 

supply it with Valero branded fuel.” Additional correspondence ensued.

III. Court Proceedings

Star Tex filed suit in 2012. In its First Amended Original Petition filed in 

2014, Star Tex asserted breach of contract claims against Day & Night and SNP; it 

also asserted claims for tortious interference with existing and prospective 

contractual relations against Colorado County and SNP. In addition to damages 

and other relief, Star Tex sought attorney’s fees under Chapter 38 of the Civil 

Practice & Remedies Code. Day & Night and SNP filed an answer and 

counterclaims against Star Tex for breach of the Dealer Franchise Agreement; the 

counterclaims were nonsuited during trial.

The case was tried to a jury resulting in a 10-2 verdict. The jury answered 

the submitted questions as follows.

 The jury answered “yes” to Question No. 1, which asked: “Did Day 

& Night violate the Dealer Franchise Agreement?”

 In response to Question No. 2, which was predicated on a “yes” 

answer to Question No. 1, the jury found that Day & Night’s failure to 

comply with the Dealer Franchise Agreement resulted in damages of 

$10,700 to Star Tex for “Reimbursements to Refiner.” 

 The jury answered “yes” to Question No. 3, which asked: “Did SNP 

Business Inc. violate the Dealer Franchise Agreement?” In response 
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to Question No. 4, the jury awarded zero damages for this breach.

 In response to Question No. 5, the jury awarded $25,699.59 as a 

reasonable fee for necessary services of Star Tex’s attorneys in the 

trial court, and $5,000 for representation in the court of appeals.

 The jury answered “yes” to Question No. 6, which asked: “Did 

CCOC intentionally interfere with the Dealer Franchise Agreement?” 

The jury was instructed: “Interference is intentional if committed 

with the desire to interfere with the contract or with the belief that 

interference is substantially certain to result.”

 In response to Question No. 7, which was predicated on a “yes” 

answer to Question No. 6, the jury found that Colorado County’s 

tortious interference with the Dealer Franchise Agreement 

proximately caused $28,880 in “Contractual damages” to Star Tex.

No questions were requested or submitted asking whether Star Tex breached the 

Dealer Franchise Agreement. The trial court signed a final judgment in conformity 

with the jury’s verdict awarding to Star Tex $10,700 in damages and $30,699.59 in 

attorney’s fees from Day & Night; the judgment also awarded to Star Tex $28,880 

in damages from Colorado County. The final judgment does not award damages 

against SNP; however, it provides that Star Tex shall recover costs of court jointly 

and severally from Day & Night, SNP, and Colorado County.

Day & Night, SNP, and Colorado County timely appealed after the trial 

court denied their respective motions to disregard certain jury findings and to sign 

a judgment notwithstanding the verdict.

ANALYSIS

Day & Night and SNP contend the trial court erred by (1) signing a 
9

judgment based on the jury’s finding that Day & Night breached the Dealer 

Franchise Agreement because that agreement already had terminated “due to Star 

Tex’s breach of a preceding dependent material obligation;” (2) “submitting a jury 

question which presupposes the existence of a[n] enforceable contract between 

Day & Night Inc. and Star Tex Inc. absent a predicate question or instruction 

seeking a determination whether an enforceable agreement existed;” and (3) 

submitting a jury question on attorney’s fees and signing a final judgment 

awarding fees “where there was no enforceable agreement . . . and no legally or 

factually sufficient evidence of timely presentment . . . .”

Colorado County contends that the jury’s (1) finding of tortious interference 

with the Dealer Franchise Agreement is supported by factually insufficient 

evidence and contrary to the great weight and preponderance of the evidence; and 

(2) damage award for tortious interference lacks a complete damage calculation, is 

supported by factually insufficient evidence, and is contrary to the great weight and 

preponderance of the evidence.

We address the appellants’ contentions in turn.

I. Issues Raised by Day & Night

Day & Night contends contractual liability is foreclosed because Star Tex 

previously and materially breached the Dealer Franchise Agreement by delivering 

Phillips-branded gasoline instead of the Citgo-branded gasoline specified in the 

contract. Although Day & Night’s legal argument is straightforward, the exact 

nature of its appellate complaint is not clear from its briefing.

2

 

2

 The final judgment contains no damage award against SNP; the jury awarded zero 

damages against SNP in response to Question No. 4, and Star Tex does not challenge this 

finding. The final judgment makes SNP jointly and severally liable for court costs, but SNP does 

not challenge the trial court’s cost award on appeal. Therefore, our analysis of appellate issues 

raised by Day & Night and SNP focuses solely on Day & Night’s liability under the final 
10

Day & Night’s brief contends at one point that the trial court erred by 

denying its motion for summary judgment predicated on the excuse-by-priorbreach argument. We cannot consider this complaint on appeal after trial on the

merits because the trial court’s earlier summary judgment denial is not appealable. 

See, e.g., Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966); 2001 

Trinity Fund, LLC v. Carrizo Oil & Gas, Inc., 393 S.W.3d 442, 463 n. 6 (Tex. 

App.—Houston [14th Dist.] 2012, pet. denied); Moore v. Jet Stream Invs., Ltd. 261 

S.W.3d 412, 427 (Tex. App.—Texarkana 2008, pet. denied).

Day & Night’s brief also argues that legally insufficient evidence supports 

the jury’s “yes” answer to Question No. 1; or, alternatively, that a “no” answer to 

Question No. 1 is established as a matter of law. These contentions comport with 

arguments raised in Day & Night’s post-trial motion to disregard certain jury 

answers under Texas Rule of Civil Procedure 301, and correspond to its first issue 

on appeal.

Day & Night argues elsewhere that charge error exists based on a contention 

that Question No. 1 impermissibly “presumed enforceability and validity of the 

Agreement” despite a material prior breach. This contention corresponds to its 

second issue on appeal.

We address Day & Night’s first two issues together because both are 

intertwined with its underlying legal argument advocating excuse by prior material 

breach.

A. Day & Night’s Breach of the Dealer Franchise Agreement

Question No. 1 asked: “Did Day & Night violate the Dealer Franchise 

 

judgment based on the jury’s verdict.
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Agreement?” The jury answered, “Yes.” Other than a damages submission in 

Question No. 2, no additional questions were submitted relating to Day & Night’s 

breach of the Dealer Franchise Agreement. Day & Night nonsuited its own breach 

of contract claim against Star Tex during trial; therefore, the jury was not asked to 

decide whether Star Tex breached the Dealer Franchise Agreement.

In challenging the jury’s finding in response to Question No. 1, Day & Night 

does not dispute that (1) if the Dealer Franchise Agreement was in effect when the 

initial 10-year term ended in 2011, then it automatically renewed for another year; 

(2) the agreement obligated Day & Night to purchase gasoline only from Star Tex; 

and (3) Day & Night ceased purchasing gasoline from Star Tex in May 2011, after 

which Colorado County began supplying gasoline to the same convenience store.

Day & Night argues instead that the Dealer Franchise Agreement ceased to 

be in effect before 2011 because Star Tex previously had delivered Phillipsbranded gasoline instead of the contractually specified Citgo-branded gasoline. 

According to Day & Night, Star Tex’s undisputed failure to deliver Citgo gasoline

means “the terms of the Agreement were not complied with in order to render the 

Agreement applicable to the delivery of Phillips gasoline.” Day & Night 

emphasizes that the Dealer Franchise Agreement was not amended in a writing 

signed by both parties as required under paragraph 18 to allow substitution of 

Phillips-branded gasoline.

We construe Day & Night’s legal argument as a contention that a prior 

material breach of the Dealer Franchise Agreement excused Day & Night’s 

subsequent breach. This contention tracks Day & Night’s affirmative defense 

pleaded in its Fifth Amended Answer, which asserted: “Plaintiff’s claims are 

barred in whole or in part under the theory of excuse of breach due to prior 

material breach.” See, e.g., Mustang Pipeline Co. v. Driver Pipeline Co., 134 
12

S.W.3d 195, 196 (Tex. 2004) (per curiam) (“It is a fundamental principle of 

contract law that when one party to a contract commits a material breach of that 

contract, the other party is discharged or excused from further performance.”); see 

also Hudson v. Wakefield, 645 S.W.2d 427, 430 (Tex. 1983) (materiality of prior 

breach relied upon to excuse performance is a fact question). This construction 

also tracks Day & Night’s closing argument to the jury, during which its counsel

stated: “And this contract is very clear. It was written by the Plaintiff and it was 

signed by Nizar Ali for Day & Night, and it only refers to Citgo. He wanted a 

Citgo and he never got it.”

Day & Night’s excuse-by-prior-material-breach argument does not fit as a 

no-evidence challenge aimed at the jury’s “yes” response to Question No. 1. This 

is so because the jury answered “yes” to a question that correctly placed the burden 

of proof on Star Tex for its own breach of contract claim against Day & Night. In 

response to Star Tex’s claim, Day & Night invokes an affirmative defense for 

which Day & Night bore the burden of proof. See Tony Gullo Motors I, L.P. v. 

Chapa, 212 S.W.3d 299, 314 (Tex. 2006); Mustang Pipeline Co., 134 S.W.3d at 

197. “When a party attacks the legal sufficiency of an adverse finding on an issue 

on which she has the burden of proof, she must demonstrate on appeal that the 

evidence establishes, as a matter of law, all vital facts in support of the issue.” 

Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).

No jury charge question or instruction addressed whether Day & Night’s 

violation of the Dealer Franchise Agreement was excused by a prior material 

breach. See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury 

Charges: Business PJC 101.21 (2014) (suggesting form of question asking, “Was 

Don Davis’s failure to comply excused?”); see also id. 101.22 (2014) (suggesting

form of instruction stating, “Failure to comply by Don Davis is excused by Paul 
13

Payne’s previous failure to comply with a material obligation of the same 

agreement.”).

During the charge conference, Day & Night objected to Question No. 1 “. . . 

as making assumptions that are not included in the evidence or our responses and it 

presupposes there was a dealer franchise agreement, and we have an objection to 

the way it is worded.” The objection continued: “We think there should be a 

limiting instruction or a preceding instruction which says ‘if you find there was a 

dealer franchise agreement, then did Day & Night violate the franchise 

agreement.’” The trial court overruled this objection. Day & Night tendered no 

requested questions or instructions. See Tex. R. Civ. P. 278. It contends on appeal 

that the trial court erred in overruling its objection to Question No. 1.

We reject Day & Night’s charge error complaint regarding Question No. 1 

because its objection in the trial court was not “specific enough to call the court’s 

attention to the asserted error in the charge” and did not make “the trial court aware 

of the complaint, timely and plainly . . . .” State Dept. of Highways & Pub. 

Transp. v. Payne, 838 S.W.2d 235, 240-41 (Tex. 1992); see also Tex. R. Civ. P. 

274. An objection asking to add the phrase “if you find there was a dealer 

franchise agreement” to Question No. 1 did not give the trial judge fair notice that 

Day & Night really was requesting a question and instruction on its affirmative 

defense of excuse by prior material breach.

Even if the objection hinted at such a request, the objection was not effective 

to preserve such a complaint for appeal; Day & Night’s stated objection suggests at 

most a threshold dispute about contract formation rather than a dispute about a 

separate affirmative defense focusing on Day & Night’s excuse by Star Tex’s prior 

material breach. See Comm. on Pattern Jury Charges, State Bar of Tex., Texas 

Pattern Jury Charges: Business PJC 101.3 (2014) (suggesting form of instruction 
14

on formation of agreement stating, “In deciding whether the parties reached an 

agreement, you may consider what they said and did in light of the surrounding 

circumstances, including any earlier course of dealing. You may not consider the 

parties’ unexpressed thoughts or intentions.”).

It follows that Day & Night’s legal argument must be assessed in light of the 

charge as submitted. Under Rule 279, “Upon appeal all independent grounds of 

recovery or of defense not conclusively established under the evidence and no 

element of which is submitted or requested are waived.”

We reject Day & Night’s suggestion that excuse by prior material breach 

was established conclusively on this record so as to make the jury’s “yes” answer 

to Question No. 1 immaterial. Day & Night did not conclusively establish excuse 

because, at a minimum, a fact issue exists as to whether Star Tex’s delivery of 

Phillips-branded gasoline was a material breach of the Dealer Franchise 

Agreement.

“In determining the materiality of a breach, courts will consider, among 

other things, the extent to which the nonbreaching party will be deprived of the 

benefit that it could have reasonably anticipated from full performance.” 

Hernandez v. Gulf Grp. Lloyds, 875 S.W.2d 691, 693 (Tex. 1994) (citations 

omitted). “The less the non-breaching party is deprived of the expected benefit, 

the less material the breach.” Id. Day & Night says it was deprived of the 

expected benefit of its chosen gasoline brand.

According to Day & Night, “Star Tex failed to perform [its] . . . obligation 

resulting in the annulment of the Agreement and excusing the reciprocal 

anticipated performance by Day & Night.” Day & Night also argues: “Star Tex’s 

failure to perform nullified the Agreement and released Day & Night from any 

obligations it had to Star Tex as related to the Agreement. All purchases of 
15

Phillips gasoline were voluntary.” Day & Night points to Nizar Ali’s testimony 

that he preferred Citgo because it is a “better brand;” had expected to receive Citgo 

gasoline; acquiesced to Phillips branding and signage only to avoid delays in 

opening the convenience store; and was told the brand would be switched to Citgo 

within two years.

Star Tex points to evidence that (1) Nizar Ali requested the change to 

Phillips branding; (2) Day & Night accepted Star Tex’s gasoline deliveries under 

the Dealer Franchise Agreement for 10 years without complaint to Star Tex about 

the brand designation; and (3) Nizar Ali never complained to Shokat Ali about the 

Phillips branding. Additionally, during cross-examination, Nizar Ali agreed with 

an assertion that “you didn’t really care whether or not it was branded Phillips, 

Chevron, or Citgo so long as it was making money and sending it over to you.”

This record confirms that prior material breach was not conclusively 

established based on Star Tex’s delivery of Phillips-branded gasoline. The parties 

disputed materiality of the brand designation and introduced conflicting evidence 

on this point at trial. Substantial evidence demonstrated that the Citgo-versusPhillips brand designation was not material. Even assuming for argument’s sake 

that Question No. 1 as submitted encompassed at least some elements of Day & 

Night’s affirmative defense, the evidence nonetheless supports an implied fact 

finding in conformity with the jury’s verdict and the trial court’s judgment. See 

Tex. R. Civ. P. 279.3

 

3 Day & Night also contends that the Dealer Franchise Agreement already had been 

breached before 2011 because Day & Night did not buy the required minimum monthly 

quantities of gasoline. We reject Day & Night’s attempted reliance on its own claimed breach of 

the Dealer Franchise Agreement to establish a prior material breach by Star Tex. We also reject 

Day & Night’s contention that (1) Star Tex’s prior material breach resulted in a 10-year oral 

contract for the purchase of Phillips gasoline; and (2) this oral contract violated the statute of 

frauds. As discussed above, the record does not conclusively establish a prior material breach 
16

We overrule Day & Night’s first and second issues.

B. Attorney’s Fees

In connection with its third issue, Day & Night argues that the attorney’s fee 

award is improper because (1) the Dealer Franchise Agreement is not enforceable 

based on Star Tex’s prior material breach; and (2) “there is no evidence to support 

an implied finding that Star Tex presented [its] . . . claim to Day & Night.” See 

Tex. Civ. Prac. & Rem. Code Ann. § 38.002(2) (Vernon 2015) (“[T]he claimant 

must present the claim to the opposing party or to a duly authorized agent of the 

opposing party”).4

Having already rejected Day & Night’s prior material breach contention, we 

likewise reject Day & Night’s contention that a conclusively proven prior material 

breach precludes both an enforceable contract and an award of attorney’s fees in 

connection with that contract under Chapter 38.

With respect to presentment, Day & Night contends that “[t]he flurry of 

notices, demands and responses commencing May 2011 were between Star Tex 

and Colorado County. . . . No evidence was presented at trial of any notice being 

addressed to or received by Day & Night.” Day & Night points to testimony that 

Star Tex never wrote a demand letter to Day & Night asserting that the Dealer 

Franchise Agreement had been terminated improperly. Star Tex’s Feroz Momin 

was asked during cross-examination: “You never made a demand on Day & 

Night?” He answered: “No.”

 

that terminated the written Dealer Franchise Agreement.

4 Day & Night objected to Question No. 5 on attorney’s fees during the charge 

conference on these grounds: “The evidence has shown there was no notice provided to anybody 

at Day & Night in this matter prior to this lawsuit being filed or even after the lawsuit was filed, 

and we don’t believe that question should be submitted to the jury.” The trial court overruled 

this objection.
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The presentment requirement allows the party against whom the claim is 

asserted an opportunity to tender performance without incurring an obligation for 

attorney’s fees. Gibson v. Cuellar, 440 S.W.3d 150, 157 (Tex. App.—Houston 

[14th Dist.] 2013, no pet.) (citing Jones v. Kelly, 614 S.W.2d 95, 100 (Tex. 1981)). 

No particular form of presentment is required. Id. “[O]ur supreme court has 

construed the word to mean simply a demand or request for payment or 

performance, whether written or oral.” Id. (citing Jones, 614 S.W.2d at 100).

Despite the existing Dealer Franchise Agreement designating Star Tex as the 

exclusive gasoline supplier for the convenience store located at 10103 Bammel 

North Houston Road, Shokat Ali signed a Branded Supply Contract with Colorado 

County for the same location on January 25, 2011. Rumors of a pending change 

prompted Star Tex’s Feroz Momin to visit Shokat Ali at the convenience store in 

February 2011, where he found Shokat Ali remodeling the facilities.

Momin testified as follows: “. . . I said, well, we heard some rumor you’re 

changing brand. I told Shokat, I said, look, there is some obligation there that you 

need to fulfill.” Momin further testified that he told Shokat Ali: “Fulfill that 

obligation. Before [you] do anything, if I can help you, I’m willing to help you.”

Day & Night contends the reference to an “obligation” is “vague” and was 

not “explained or clarified.” We reject this contention because this testimony 

would enable a reasonable and fair-minded fact finder to conclude that Star Tex 

met the presentment requirement. See Criton Corp. v. Highlands Ins. Co., 809 

S.W.2d 355, 358 (Tex. App.—Houston [14th Dist.] 1991, writ denied)

(presentment established based on testimony of general contractor’s president who 

said he telephoned subcontractor’s president and requested full performance); see 

also City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

We overrule Day & Night’s third issue.
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II. Issues Raised by Colorado County

In two issues, Colorado County challenges the factual sufficiency of the 

evidence supporting the jury’s “yes” answer to Question No. 6 addressing tortious 

interference with an existing contract and the $28,800 damage award for 

interference in response to Question No. 7.

We pause at this juncture to address terminology confusion in the briefing.

Although Colorado County’s brief frames the issues presented as factual 

sufficiency challenges to adverse jury findings, Colorado County did not file a 

motion for new trial to preserve a factual sufficiency challenge as required under 

Texas Rule of Civil Procedure 324(b)(2).

Instead, Colorado County filed a motion to disregard jury findings and for 

judgment notwithstanding the verdict under Texas Rule of Civil Procedure 301 in 

which it argued legal sufficiency points. Elsewhere in its brief, Colorado County 

attacks the legal sufficiency of the evidence supporting these adverse jury findings.

A legal sufficiency challenge corresponds to the relief Colorado County 

requests on appeal — rendition of a take-nothing judgment in its favor on Star 

Tex’s tortious interference claim. Accordingly, we construe Colorado County’s 

appellate issues as legal sufficiency challenges aimed at the jury’s answers to 

Question No. 6 and Question No. 7.

The test for legal sufficiency is whether the evidence at trial would enable 

reasonable and fair-minding people to reach the verdict under review. City of 

Keller, 168 S.W.3d at 827. When reviewing legal sufficiency of the evidence, we 

consider the evidence in the light most favorable to the verdict and indulge every 

reasonable inference to support it. Id. at 822. We credit favorable evidence if a 

reasonable juror could do so and disregard contrary evidence if a reasonable juror 
19

could not credit it. Id. at 827.

Colorado County did not object to Question No. 6 or Question No. 7 at the 

charge conference. When the parties have not objected at trial to the substance of 

the law set forth in the jury charge, we review sufficiency of the evidence in light 

of legal standards contained in the unobjected-to charge. See, e.g., Osterberg v. 

Peca, 12 S.W.3d 31, 55 (Tex. 2000) (“[I]t is the court’s charge, not some other 

unidentified law, that measures the sufficiency of the evidence when the opposing 

party fails to object to the charge.”). For this reason, we do not consider Colorado 

County’s appellate contention that “Star Tex failed to submit the proper measure of 

damages” in Question No. 7.

With these clarifications, we turn to Colorado County’s sufficiency 

challenges.

A. Tortious Interference

The jury answered “yes” to Question No. 6, which asked: “Did CCOC 

intentionally interfere with the Dealer Franchise Agreement?” The jury was 

instructed as follows: “Interference is intentional if committed with the desire to 

interfere with the contract or with the belief that interference is substantially 

certain to result.” This submission tracks the Pattern Jury Charge for intentional 

interference with an existing contract. See Comm. on Pattern Jury Charges, State 

Bar of Tex., Texas Pattern Jury Charges: Business PJC 106.1 (2014). Colorado 

County assails the evidence supporting this answer on multiple grounds.

In an argument that echoes Day & Night’s position, Colorado County 

initially contends that the Dealer Franchise Agreement no longer was in existence 

by 2011 and could not be interfered with because the agreement previously had 

lapsed due to Star Tex’s delivery of Phillips-branded gas instead of Citgo-branded 
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gas. We rejected this argument earlier, and we reject it again now for the same 

reasons.

Colorado County argues that no interference with the Dealer Franchise 

Agreement occurred because “at no time did Star Tex have a contract with SNP, 

the party with whom Colorado County contracted. Star Tex only had a contract 

with Day & Night.” This argument is unavailing. Shokat Ali owned and was 

president of SNP; after January 1, 2011, he also owned and was president of Day 

& Night. SNP leased the convenience store from Day & Night in May 2009 for a 

term that ran until May 31, 2014. The lease was in effect when Colorado County 

entered into the Branded Supply Contract with SNP on January 25, 2011, and 

when Colorado County began delivering Valero-branded gasoline to the 

convenience store on May 4, 2011. Paragraph 21 of the Dealer Franchise 

Agreement extends the contract’s binding effect to reach “any party buying, 

purchasing, leasing, renting or otherwise having control of the branded outlet so 

long as this Agreement is in effect.” In light of this evidence, Colorado County 

cannot plausibly contend that SNP was a stranger to the preexisting gasoline 

supply agreement for the Bammel North Houston Road location.

Colorado County next argues that the record lacks evidence of intent, 

interfering acts, and proximate cause because Shokat Ali told its representative that 

no gasoline supply contract was in place for this location; “SNP/Day & Night 

decided on its own accord to change suppliers . . . and brand due to 

complaints/dissatisfaction with Star Tex;” SNP requested payment of the $50,000 

signing bonus “as an up-front advance;” and “[p]ayments of incentives are a 

common practice in the motor fuel supply industry.”

We reject these contentions because the jury reasonably could have 

concluded that the requisite intent, interference, and causal link were established 
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based on evidence that Colorado County (1) committed to pay a $50,000 signing 

bonus to switch an already-branded convenience store location from Phillips to 

Valero, and then (2) moved forward with the change to supply Valero gasoline to 

the exclusion of Star Tex even after receiving a copy of Star Tex’s unterminated 

Dealer Franchise Agreement for the same location and declining Star Tex’s offer 

to reimburse conversion costs.

When asked whether Colorado County could have pulled out of the Branded 

Supply Contract without expense once it received a copy of the prior Dealer 

Franchise Agreement in May 2011, Colorado County’s president answered: “I 

sure could have.” The jury was free to reject testimony that Colorado County’s 

president believed the Dealer Franchise Agreement already had terminated after 10 

years.

A reasonable jury could conclude that testimony about the absence of 

complaints and the lack of a termination notice to Star Tex indicated there was no 

dissatisfaction with its service; that the presence of branding at the location 

indicated the existence of a contract with a distributor; that the existing contractual 

relationship with Star Tex would have continued for at least another year; and that 

the signing bonus played an active role in causing the change in distributors. See 

Graham v. Mary Kay Inc., 25 S.W.3d 749, 753 (Tex. App.—Houston [14th Dist.] 

2000, pet. denied) (“The summary judgment evidence showed that Graham cajoled 

these beauty consultants into continuing to sell to her, even after they knew that 

dealing with Graham was in breach of their agreements.”); see also Anderson, 

Greenwood & Co. v. Martin, 44 S.W.3d 200, 218 (Tex. App.—Houston [14th 

Dist.] 2001, pet. denied).

A reasonable jury also could conclude from these circumstances that 

Colorado County “‘desire[d] . . . to cause the consequences of’” its acts or 
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“‘believe[d] . . . that the consequences [were] . . . substantially certain to result . . . 

.’” Sw. Bell Tel. Co. v. John Carlo Texas, Inc., 843 S.W.2d 470, 472 (Tex. 1992) 

(quoting Restatement (Second) of Torts § 8A (1965)). The consequence here was 

cessation of the Dealer Franchise Agreement that had governed gasoline supplies 

at this location since 2001.

We overrule Colorado County’s first issue.

B. Damages

In response to Question No. 7, the jury awarded $28,800 as “[c]ontractual 

damages” that “would fairly and reasonably compensate Star Tex for its damages, 

if any, proximately caused by” Colorado County’s interference with the Dealer 

Franchise Agreement. The jury charge does not define the term “[c]ontractual 

damages.”

Colorado County contends the evidence is legally insufficient to support the 

awarded amount because “there was no complete damage calculation submitted by 

Star Tex as required by law.” It also contends the evidence does not support 

“[c]ontractual damages” based on gasoline deliveries Star Tex would have made to 

the Bammel North Houston Road location after the Dealer Franchise Agreement 

automatically renewed in April 2011.

Under the Dealer Franchise Agreement, Star Tex received one cent per

gallon above the “posted terminal price” that Star Tex paid to purchase gasoline 

from the refiner. Momin testified that Star Tex also received a discount from 

Phillips for prompt payment of its invoices “which comes out [to] 2.75, three 

cents” per gallon. Momin also testified: “We [were] collecting one cent a gallon 

from [Day & Night], plus we receive some benefit from refineries, okay, and some 

of the fuel tax discount, our average comes to four cents.” Momin later repeated 
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this figure: “Four cents is [Star Tex’s] loss because we get some other discount.”

Star Tex’s “[c]ontractual damages” calculation is based on multiplying the 60,000 

gallon monthly minimum by four cents per gallon.

Colorado County attacks this computation on grounds that the 60,000-

gallon-per-month-figure is inflated because Day & Night frequently fell below the 

required monthly minimum while the Dealer Franchise Agreement was in effect. 

Colorado County also attacks the three-cent-per-gallon discount as being unduly 

speculative because it depends on “(1) the amount charged by Phillips on each 

invoice and (2) Star Tex paying that invoice on time.” Colorado County contends 

that these damages “are subject to many variables, principally the economy and 

fluctuation of the cost of gasoline.” Colorado County further argues Star Tex is 

entitled only to 11 months of “[c]ontractual damages” because Sohail Ali 

“effectively terminated the agreement at the end of that additional year” by giving 

oral notice of termination in April or May 2011.5

We reject Colorado County’s no evidence challenge in light of the 

admonition that “[r]ecovery for lost profits does not require that the loss be 

susceptible of exact calculation.” Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 

 

5 Colorado County contends that Sohail Ali “effectively terminated” the Dealer Franchise 

Agreement when, according to his testimony, he called Star Tex in April or May 2011 to notify it 

that “my father had received a call from Colorado County Oil saying that the Valero signs are in 

so if they could let the gas partner know that they can take down their Phillips sign so they can 

come in and install their Valero signage.” Sohail Ali testified he told Star Tex “[t]hat we would 

need those signs to be removed because we’re changing over to Valero so you guys have 30, 45 

days before the appointment from the sign company to come out and install the Valero signage.” 

The jury was entitled to rely on Shokat Ali’s testimony that he never provided a notice to Star 

Tex terminating the Dealer Franchise Agreement and, to his knowledge, no one else did either. 

In any event, Star Tex’s status as a Valero distributor (among multiple brands) would allow a 

reasonable jury to conclude that Sohail Ali’s statements to Star Tex about switching to Valero

signage were not necessarily equivalent to saying that Star Tex was being terminated as the 

convenience store’s supplier. The jury also was entitled to conclude that Sohail Ali’s oral 

termination notice, if made, resulted from Colorado County’s interference with the Dealer 

Franchise Agreement.
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80, 84 (Tex. 1992) (citing White v. Sw. Bell Tel. Co., 651 S.W.2d 260, 262 (Tex. 

1983), and Sw. Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097, 1098 

(1938)). “[T]he injured party must do more than show that they suffered some lost 

profits.” Holt Atherton Indus., Inc., 835 S.W.2d at 84. “The amount of the loss 

must be shown by competent evidence with reasonable certainty.” Id. “As a 

minimum, opinions or estimates of lost profits must be based on objective facts, 

figures, or data from which the amount of lost profits can be ascertained.” Id.

Momin’s testimony meets this threshold. He relied on a ten-year history of 

gasoline sales to this specific convenience store and discounts received for prompt 

payment in computing Star Tex’s “[c]ontractual damages” going forward. 

Although Day & Night’s purchases had met the 60,000-gallon minimum in some 

months and not in others, Star Tex was contractually entitled to that minimum. 

Colorado County’s monthly sales to the convenience store exceeded 60,000 

gallons in some months following the switch.

Momin permissibly offered computations for damages from Colorado 

County ranging from $26,400 on the low end for 11 months of continued gasoline 

purchases after May 2011 to $288,000 for another decade of gasoline purchases.6

The jury permissibly decided upon a damage figure within the range set out in the 

testimony that equates to 12 months of continued gasoline purchases at 60,000 

gallons per month multiplied by four cents per gallon. See, e.g., City of Houston v. 

Harris Cty. Outdoor Advert. Ass’n, 879 S.W.2d 322, 334 (Tex. App.—Houston 

[14th Dist.] 1994, writ denied).

 

6 Momin computed Star Tex’s “[c]ontractual damages” to be $26,400 for the first 11 months after 

Star Tex’s deliveries ceased in May 2011, and $28,800 for the next 12 months from April 2012 until 

April 2013. He testified at one point that the Dealer Franchise Agreement automatically renewed in oneyear increments after the initial 10-year term. Momin then testified that no provision in the Dealer 

Franchise Agreement required Day & Night to give a one-year notice of termination.
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We overrule Colorado County’s second issue.

CONCLUSION

We affirm the trial court’s judgment.

/s/ William J. Boyce

Justice

Panel consists of Justices Boyce, Busby and Brown.