## In The Court of Appeals Seventh District of Texas at Amarillo

No s . 07

- 18

- 00030

- CV

L & S MEATS , LLC & MPK , LLC , APPELLANT S
V. USA FEEDYARD , LP , APPELLEE On Appeal from the 84 th District Court Hansford County , Texas Trial Court No s . CV05402 , Honorable Curt W. Brancheau , Presiding



### January 22 , 20 20 MEMORANDUM OPINION
Before QUINN , C.J. , and PIRTLE and PARKER , JJ. This appeal arises from a cattle speculation plan gone awry. The spe culation involved the purchase of one or more lots of cattle at about 325 pounds per head , leaving them in a feedlot to be fed , and selling the lots in about a year and after each head gained in weight to about 1 , 325 poun ds . It was hoped that the state of the cattle market and the price at which cattle was being bought would result in a sales price sufficient to cover the cost of feeding and caring for the cattle and leave the speculators with a profit. L & S Meats , LLC and MPK , LLC (collectively referred to as Meat) were the speculators . The2

feedlot with which it arranged to feed the cattle was USA Feedyard , LP (USA)

. And , the entities began a business relationship that would last about two years. As part of that relationship , USA agreed to assist Meat in finding particular lots of cattle to buy. That assistance included USA developing break

- even projections for Meat regarding the lots under consideration. An incremental component of those projectio ns was the estimated cost of feeding the cattle betwe en time of purchase and sale

. Apparently , USA estimated that cost by inputting a wrong factor into the equation. T hat the factor was wrong was uncontested ; the representative of USA acknowledged as muc h. Yet , the mistake was not discovered until after M eat encountered a downturn in the cattle market and began losing money on its cattle purchases. That resulted in Meat 1) refusing to recompense USA for its services related to feeding and caring for the cattle it bought and committed to buy and 2) suing U SA for negligence , negligent misrepresentation , and fraud

. USA counterclaimed for breach of contract. Trial was to a jury , which found th at USA did utter negligent misrepresentations upon which Meat ju stifiably relied. Yet , it awarded Meat no damages. In turn , it found that Meat breached its “ obligations ” to USA and awarded USA damages against Meat . The trial court entered judgment upon the verdict , and Meat appealed. We modify the judgment and af firm the judgment as modified

. The issues asserted by Meat are rather numerous. It attack s both the recovery denied it and that granted USA. We begin our analysis by addressing the former. Negligent Misrepresentation The first issue concerns J ury Question 6. Through it , the trial court asked the jury
to m easure the damages recoverable by Mea t due to the misrepresentations upon which3

Meat relied. 1 Meat contend s that the question posed should have been submitted in broad form and improperly narrowed the damages recoverable

. We overrule the issue. Econo mic Loss Rule Among other things , US A argued that any defect in Question 6 was harmless because the damages Meat sought were precluded under the economic loss rule

. That rule generally bars recovery in tort for economic losses resulting from a party ’ s fai lure to perform under a contract when the harm consists only of the economic loss of a contractual expectancy

. Chapman Custom Homes , Inc. v. Dallas Plumbing Co. , 445 S.W.3d 716 , 718 (Tex. 2 014) (per curiam). As noted in Chapman , a party states a viable tort claim under the rule when the duty allegedly breached is independent of the contractual undertaking and the harm suffered is not merely the economic loss of a contractual benefit. Id

. Meat ’ s underlying complaint concerns the provision of defective break

- even projections by USA. Meat would use those projections to determine whether to buy particular lots of cattle for feeding and care by USA. The la t ter had no contract with Meat to provide the projections. Thus , it cannot be said that any duty to provide the projections and use care in compiling them arose from contract. In other words , the duty at issue here , i.e. , to use care in compiling the projections , did not arise from contract. So , the first prong of Chapman does not preclude Meat ’ s claim

. The same cannot be said of the second Chapman prong. Again , it requires that the harm suffered cannot be merely the economic loss of a contractual benefit. Chapman

1 Through Question 5 , the court asked the jury if USA made “ a negligent misrepresentation regarding any of the lots of cattle identified below on which [Meat] justifiably r elied. ” The jury answered affirmatively with regard to 52 lots.4

described that type of harm contemplated as “ economic losses resulting from a party ’ s failure to perform under a contract when the harm consists only of the economic loss of
a contractua l expectancy. ” Id. While there may not have been a contract between Meat and USA regarding the development of break

- even projections , those projections we re nonetheless used as a basis for entering into a contract with USA. That contract consisted , amon g other things , of feeding the acquired cattle until their weight achieved a particular point. 2 Meat expected the cost would be x dollars per head , given t he projections. Yet , achieving that requisite weight point cost more than USA represented , and Meat soug ht to recover the excess

. 3 Recovering the excess would give Meat the expectancy it thought it was going to get under the contract , i.e. , expending onl y x dollars to fatten the cattle to the requisite weight for the requisite per iod. So , it was seeking the economic loss of a contractual expectanc y , which , in turn , means that the second prong of Chapman was and is not satisfied. The situation before us is akin to Meat being induced to enter into a contract with USA via misr epresentation s and ultimately suing to recover the contractual benefit it would have had if the representations were accurate. The contractual benefit or expectancy when entering t he contract consisted of feeding the cattle to the target weigh t for the amo unt reflected in the projections. But , the cost projection was wrong and the expected benefit based on the projection was lost

. Had the misrepresentation been

2 For a more th o rough discussion of the nature of the implied contract serving as the basis for the expectancy , refer to later portions of this opinion addressing issues raised concerning oth er jury questions , more specifically Questions 7 , 8 , and 9

. See infra pp. 8

– 9 , 12

– 13.

3 In essence , Meat attempted to supplement the profit , if any , it lost in having to incur additional expense. The additional expense arose due to its reliance on USA ’ s misrepresentation s . The additional expense and its impact on the ultimate price received once the cattle were sold result ed in a reduction of profit , and that is little more than an economic loss. See Bass v. City of Dallas , 34 S.W.3d 1 , 9 (Tex. App.

— Amarillo 2000 , no pet. ) (describing “ economic loss ” as , among other things , the “ consequent loss of profits ” ).5

intentional , then t he economic loss rule would not have barred recovery. Meat could have pursued recovery of the lost contractual benefit. But because it was negligently made , the intended benefit of its bargain with USA cannot be recovered. See D.S.A. , Inc. v. Hillsboro Indep. Sch. Dist. , 973 S.W.2d 662 , 663

– 64 (Tex. 1998 ) (per curiam) (stating that “ [u]nlike fraudulent inducement , the benefit of the bargain measure of damages is not available for a claim of negligent misrepresentation ” ) ; Sterling Chems. , Inc. v. Texaco Inc. , 259 S.W.3d 793 , 798 (Tex. App.

— Houston [1st Dis t.] 2007 , pet. denied) (noting D.S.A. and reiterating that the benefit of the bargain measure of damages i s unavailable for a claim of negligent misrepresentation) . Instead , Meat is limited to collectin g damages for injury apart from the benefit of the ba rgain it expected when contract ing with USA to feed its cattle , and no such damages were sought by it. So , even if we were to assume arguendo that J ury Question 6 was defective , the defect resulted in n o harm to Meat ; and

we ultimately overrule its issue. Questions 7

, 8 , 9 , 10 , 11 , and 12 Next , we address Meat ’ s complaints regarding J ury Question s 7 and 8 and the answers thereto

. Via Question 7 , the jury was asked the following : “ Did [Meat] fail to compl y with their obligations to [ USA ] arising out of the cattle transactions described below? ” Under the question appear ed a diagram comprised of two columns of boxes. At the top of the left column was the word “ lot ” with various numbers written in each box thereunder. The directive to answer “ yes ” or “ no ” appeared atop the column on the right. Prefacing the diagram was the following phrase: “ Cattle specifically described in signed promissory notes

. ” Each box corre sponding to a particu lar “ lot ” number was answered

“ yes ” by the jury

.6

Through Question 8 , the jury was asked: “ Wha t sum of money , if any , if paid now in c ash , would fairly and reasonably compensate [ USA ] for its damages , if any , that resulted from such fai lure to comply

. ” Fol lowing that passage was the following directive:

“ C onsider the following elements of damages , if any , and none other. The di fference , if
any , between the sales proceeds received by [ USA ] when the cattle were sold and USA ’ s purchase , feeding and care costs , and USA ’ s cost to finance these items. ” The sum of $426 , 717. 41 was entered in a blank referring to L&S Meats , while $229 , 578.60 was written in the blank refer ring to MPK. The initial contention we address is that wherein Meat argued that “ Question 7 , al ong with its accompanying instruction , fails to submit a proper theory of recovery , and cannot support a judgment for recovery und er a promissory note. ” It believe s this is so because 1) “ Question 7 has nothing to do with whether [Meat] failed to comply w ith their obligations under the notes ” ; 2) it “ does not even mention the notes or their terms ” ; and 3) it “ inquires of whether [Meat] failed to comply with their unspecified obligations arising from cattle transactions

. ” We overrule the issue.
In addressi ng the contention , some well

- settled principles co me to mind. They regard the viewpoint from which we view jury questions. The relevant viewpoint is that of a juror untrained in the law , see Galveston , H arrisburg & S an A ntonio R y . Co. v. Washington , 94 T ex. 510 , 517 ( 1 901) ; N. Tex. Traction Co. v. Thetford , 28 S.W.2d 906 , 913 (Tex. Civ. App.

— Fort Worth 1930) (op. on reh ’ g) , rev ’ d in part on other grounds , 44 S.W.2d 902 (Tex. Comm ’ n App. 1932 , holding approved) , who is exercising common

sense. See Brought

on v. Humble Oil & Ref

. Co

. , 105 S.W.2d 480 , 485 (Tex. Civ. App.

— El Paso 1937 , writ ref ’ d ) . Additionally , the questions and instructions are afforded a reasonable , as opposed to technical , construction. See DoAll Dallas Co. v. Trinity Nat ’ l7

Bank of Dalla s , 498 S.W.2d 396 , 400 (Tex. Civ. App.

— Texarkana 1973 , writ ref ’ d n.r.e. ) ( sub. op. ) ; Tex

. Emp ’ rs Ins. Ass ’ n v. McDowell , 278 S.W.2d 444 , 446 (Tex. Civ. App.

— A marillo 1955 , writ ref ’ d n.r.e. ) ; accord Broughton , 105 S.W.2d at 485 (observing that a natural , unstrained construction should prevail)

. To that we ad d the duty to interpret them as of the time they were prepared , see A tchison , T opeka & S anta F

e Ry

. Co. v. Acosta , 435 S.W.2d 539 , 545 (Tex. Civ. App.

— Houston [1st Dist.] 1968 , writ ref ’ d n.r.e. ) , and in the context of the whole situation before the jury. See Broughton , 105 S.W.2d at 48 5

– 8 6

. Included in the situation before the jury are such things as the nature of the dispute and claims between the parties and the evidence relevant to t hem. Id. at 4 85. That said , we turn to the contention at bar and immediately recognize the somewhat narrow focus upon which it is based. As previously mentioned , USA ’ s concerns with Meat arose from a continuing mode of transacting business between each o ther. That mo de involved representatives of Meat ask ing USA to buy cattle on its behalf , arrange for its delivery if necessary , and provide for its care and feeding until sold. Promissory notes naming USA as payee were executed by Meat in conjunction wit h the various lots of cattle being purchased. Apparently , though , their execution did not necessarily occur prior to USA ’ s acquisition of the bovine. Moreover , the relationship between Meat and USA began to deteriorate in late 2015 and early 2016. Coinc identally , the deterioration occurred in conjunction with the drop in cattle prices. Meat began losing large sums of money. As a result , it decided to end the busin ess relationship with USA. It also refused to 1) execute additional promissory notes refle cting cattle p urchases that had been made at its request but which cattle had yet to be delivered to the feedlot and 2) pay for corn it asked USA to acquire in the future , which corn would8

be fed to its cattle . This resulted in USA suing to recover not on ly the cost of the cattle it acquired but also for expenses related to its acquisition , feeding , and care , as alleged in the third amended counterclaim of USA

. Interestingly , though , it mentioned nothing in its counterclaim of suing upon the promissory notes themselves and recovering a respective deficiency allegedly due under each . Nor did it refer to any deficiency related to the nonpayment of any particular note when presenting evidence of the damages recoverable. Inste ad , USA asked its witness , “ A nd what was

– wha t is the total amount that USA [was] owed through the day before trial , this past Sunday , on cattle on which [Meat]

. . . signed notes to the feed yard , and on those lots , how much did they owe? ” The response was “ $670 , 974.29. ” So , what the jury had befor e it was a scenario wherein Meat entered into what one

cou ld compare to as an oral umbrella agreement. Under the accord , Meat would direct USA to purchase certain lots of cattle. USA would finance the purchas e , save for a small
amount which Meat w ould pa y as “ equity ” for each lot. 4 Per the umbrella agreem ent , Meat would then execute a promissory note referencing the particular lot being purchased and financed. The overall oral agreement also obligated USA to care for and feed the cattle until sold. Whe n the cattle were sold , USA would then recoup its expense s ( e.g. , the purc hase price and cost of caring for and feeding the bovine) and forward Meat the excess or profit , if any

. Eventually , Meat opted to forgo paying the expense s incurred by USA

. Some of the lots consisted of cattle for which Meat had executed a promissory n ote per the oral umbrella agreement. The other lots were not referenced within a n eventual promissory note , the reason being the deterioration of the business relationship and the

4 Th e sum was $125 per head.9

r efusal of Meat to execute such notes once the cattle within those lots wer e received by USA. But , whether reflected within a corresponding promissory note or not , each lot was acquired under the oral umbrella agreement , and under that same umbrella agreem ent , Meat obligated itself to pay USA for the cattle and its care. Gi ven the foregoing factual scenario , the trial court submitted to the jury Question s 7 and 9. Again , t hrough the former , it asked: “ Did [ Meat ] fail to comply with their obligations t o [ USA ] arising out of the cattle transactions described below? ” The “ cattle transactions described below ” were those “ Cattle specifically described in signed promissory notes [.] ” Through Question 9 , the jury was asked a like question , that being whether “ [ Meat ] fail [ed] to comply w ith their obligations to [ USA ] aris ing out of the cattle transactions described below

. ” This time , though , the “ cattle transactions described below ” were the “ Cattle not specifically described in signed promissory notes [.] ” To reiterate , we must afford a jury question a reasonable , as opposed to technical , interpretation from the viewpoint of a juror untrained in the law but exercising common

sense . And , the reasonable , commonsens ical jury having seen the nature of the busines s relationship between USA and Meat and the issues being tried would lead us to construe both Questions 7 and 9 as encompassing what we call the oral umbrella agreement and the “ obligations ” of Meat under it. Those “ obligations ” consisted of the general , nonspecific , overall promise to pay USA for the expense s of acquiring and rearing the cattle. Indeed , the jury instruction accompanying Question 8 indicates as much. Question 8 directed the jury to calculate the damage s recoverable when Meat failed to abi de by its “ obligations. ” Those dama ges were limited to the “ difference , if any , between the sales proceeds received by [ USA ] when the cattle were sold and USA ’ s purchase , feeding and care costs , and USA ’ s cost to finance these items

. ”10

Moreover , Meat did n ot object to Question 9 before the trial court su bmitted it to the jury. Though t he same is not true regarding Question 7 , the objections uttered were limited. Meat simply asserted that the question 1) “ should be submitted in broad form ” ; 2) “ constitutes a comment on the wei ght of the evidence in connection with Defendant ’ s theory that Plaintiffs could not rely on the projections provided to them by Defendant for the purchase of the individual lo ts of cattle ” ; and , 3 ) “ it will nudge the jury in the direct ion of the Defendant ’ s theory. ” As can be seen , nothing was said about the question being nonspecific , omitting elements , being immaterial , referring to an agreement other than one founded on the promissory notes , referring to a nonexistent agreement , or the like. So , its cur rent objections about the questions ’ wording and their failure to specify the

“ obligations ” at issue were waived. See T EX

. R. C IV

. P. 274 (stating that a party objecting to a charge must specify the objectionable matter and the grou nds of the objection and that any complaint concerning any defect , omission , or fault in the pleading is waived unless specifically included in the objection) ; B urbage v. Burbage , 447 S.W.3d 249 , 256 (Tex. 2014) (stating the same)

. And , because each ques tion apparently related to the obligations imposed via the general , nonspecific oral umbrella agreement as opposed to the individual promissory
notes , it matters not that Question 7 sa id nothing about the elements underlying a cause of action to recover up on a note. See TrueStar Petrol. Corp. v. Eagle Oil & Gas Co. , 32 3 S.W.3d 316 , 319 (Tex. App.

— Dallas 2010 , no pet.) (stating that , to prevail , a plaintiff must
p rove the note in question , that the defendant signed it , that the plaintiff is the legal owner and holder of the note , and that a certain balance is due and owing)

. So , the contention about the omission of those elements is inconsequential.11

As for the c ontention that the answer to Question 7 wa s immaterial because it posed a question of law , we n ote the followin g. Meat said nothing of that when given the opportunity to object during the charge conference . Thus , it too was waived. See Mitchell

v. Bank of Am. , N.A. , 156 S.W.3d 622 , 627

– 28 (Tex. App.

— Dallas 2004 , pet. denied) (wherein the appellan t argued that “ the trial court erred in submitting the question to the jury because whether a contract has been breached is a question of law ” and holding t he Mitchells waived the complaint by failing to assert it before the charge was read to the jury) ; a ccord Ibarra v. City of Laredo , No. 04

- 10

- 00665

- CV , 2012 Tex. App. LEXIS 5741 , at *5

– 6 (Tex. App.

— San Antonio July 18 , 2012 , no pet.) (mem. op.) (holding th e same)

. We further note that both the existence of a contract and its breach are questions of fac t , unless undispute d

. See Grohman v. Kahlig , 318 S.W.3d 882 , 887 (Tex. 2010) (per curiam) ; Austin Tapas , L.P. v. Performance Food Grp. , Inc. , No. 03

- 18

- 006 80

- CV , 2019 Tex. App. LEXIS 6589 , at *5 (Tex. App.

— Austin Aug. 1 , 2019 , no pet.) (mem. op.) ; Berg v. Wilson , 353 S.W.3d 166 , 174 (Tex. App.

— Texarkana 2011 , pet. denied)

. Meat did not concede the existence of the umbrella agreement and the “ obligations ” ar ising under it t o pay for the lots of cattle and expenses related to caring for them

. Nor did it

co ncede that it breached those obligations. Thus , such topics were questions of fact for the jury to decide , not questions of law for the court. Regarding J ury Question 9 , Meat believed it also to be immaterial and defective for reasons similar to the purported immateriality and defectiveness of Question 7. Yet , th os e complaints too should be overruled for the very same reasons the complaints about Question 7 were. Meat also complained here that Question 9 was immaterial because there was “ no

rec ord evidence of any specific terms of any alleged oral contract. ” Admittedly , our12

perusal of the record uncovered no express contract be tween it and USA delineating the specific terms of an agreement. Yet , contracts arise in various ways , one of which is through a course of conduct. See Preston Farm & Ranch Supply , Inc. v. Bio

-

Zyme Enters. , 62 5 S.W.2d 295 , 298 (Tex. 1981) (stating that “ [e]ven prior to the enactment of the [Uniform Commercial] Code it was recognized in Texas that a contract could be form ed by conduct ” and “ [s]uch a contract is one implied in fact ” )

. An implied contract arises when the parties ’ acts indicate , according to the ordinary course of dealing and common understanding , that there is a mutual intention to contract

. Id. ; Stewart & Stevenson , LLC v. Galveston Party Boats , Inc. , No . 01

- 09

- 00030

- CV , 2009 Tex. App. LEXIS 8582 , at *28 (Tex. App.

— Houston [ 1st Dist.] Nov

. 5 , 2009 , no pet. ) (mem. op

. ). The record at bar contain s evidence of 1) Meat repeatedly approaching USA to buy cattle for it ; 2) USA buying and raising the cattle ; 3) the cattle later being sold ; and , 4) USA forwarding the p roceeds of the sale to Meat after deducting the costs it incurred in buying and raising the cattle. If nothing else , that is some evidence of an ord inary course of dealing evincing a common understanding and mutual intention to contract. That is , it is

s ome evidence of a contract between the parties arising by implication. It is also some evidence of an agreement by Meat to repay USA for buying , rai sing , feeding , and selling the lots of cattle it sought. And , not unti l the cattle market dropped many mon ths after the parties began their business relationship did Meat deign to question the arrangement

. So , Meat is mistaken in arguing that Question 9 was immaterial because there was no record evidence of a contract

. As for Meat ’ s current complaint s about Question 10 , we start with the one about it being immaterial because there was no evidence of a contract betwee n the parties. Question 10 tra cked the language of Question 8 ; through it , the jury was asked to13

determine the sum of money , if any , pay able which “ would fairly and reasonably compensate [ USA ] for its damages , if any , that resulted from ” Meat ’ s failure to comply with the “ obligations ” encompas sed within Question 9. And , because there was evidence of a contract between Meat and USA , as we concluded in the immediately preceding paragraph , Question 10 is not immaterial for the reason Meat proffered

. As for the complaint that Question 10 was imm aterial because it incorporated the wrong measure of damages , Meat did not complain about the meas ure used at trial. 5
Thus , it waived the complaint here. Moreover , this complaint , too , is premised on the notion of there being no evidence of a contract be tween Meat and USA ; yet , as previously discussed , the record contains such evidence. As for the complaint about Question 10 being immaterial because of the supposed

“ absence of any vali d predicate finding that [Meat] breached the terms of [an] alleged

con tract with USA , ” it is unaccompanied by substantive analysis and , therefore , waived

. Anderson v. Safeway Tom Thumb , No. 02

- 18

- 00113

- CV , 2019 Tex. App. LEXIS 4284 , at *7 (Tex. App.

— Fort Worth May 23 , 2019 , pet. denied) (mem. op.) (stating that “ [i]n the ab sence of appropriate record citations or a substantive analysis , a brief does not present an adequate appellate issue ” ) . Furthermore , the question actually is predicated upon an

5 Indeed , Meat sought to apply the measure of damages relating to a sale of goods under th e Uniform Commercial Code. Yet , that Code applies to “ transactions in goods. ” T EX

. B US

. & C OM

. C ODE A NN

. § 2.102 (West 2009 ) . No one refer red us to anything in the record indicating that USA was merely selling goods to Meat. USA was obviously supplying services , too. And , most importantly , Meat does not argue here that the sale of goods was the dominant factor or the essence of the transac tion in its business relationship with USA. See Summit Glob. Contractors , Inc. v. Enbridge Energy , L.P. , __S.W.3d_

_ ,
__ , 2019 Tex. App. LEXIS 10657 , at *11 (Tex. App.

— Houston [14th Dist.] Dec. 10 , 2019 , no pet.) (stating that

“ Texas ’ s version of the Unifo rm Commercial Code applies to the sale of goods ” and “ [w]hen a contract contains a mix of sales and services , the U CC applies if the sale of goods is the ‘ dominant factor ’ or

‘ essence ’ of the transaction ” )

. Incidentally , Meat also tried to invoke those provisions of the Texas Business and Commerce Code relating to transactions in goods to negate the validity of J ury Q uestion 9. But , again , it did not urge the applicability of the UCC during the charge confer ence or attempt to illustrate that its business relationship with USA was dominated by the sale of goods. So , we overrule that contention as well.14

affirma tive answer to Question 9 , and the latter encompassed whether Meat fai led to perform its “ obligations ” to USA arising from the cattle transactions. The jury answering Question 9 affirmatively means that the predicate to Question 10 is present. So , we

ove rrule this complaint , too. As for the contention that no evidence sup ports the jury ’ s answer to Question 10 , we disagree. A witness for USA testified that $221 , 823 and change was owed to it ; the jury happened to award that exact amount . Furthermore , the multiple components of that sum were explained in USA ’ s E xhibit 500. As for the contention that no evidence appears of record indicating that the damages awarded in Question 10 were reasonable and necessary , the complaint is premised on the conclusory argument that , “ by its submission of Question 10 , USA is seeking recove ry in the nature of ‘ remedial damages. ’ ” Why the damages sought were remedial and only remedial went unexplained. Again , Meat merely concluded as much. Thus , the is sue was inadequately briefed , and we overrule it. See i d. Regarding the complaints about Q uestion 11 , we note the following. 6 They too concern allegations about “ compositional problem [s] ” akin to Question s 7 and 9 and about which Meat failed to object during the charge conference. Consequently , those

“ compositional problem[s] ” were waived , too. As for the complaint that Question 11 said nothing about the terms of the agreement underlying the corn purcha ses encompassed by the question , the record contains evidence of Meat simply asking USA , via email , to buy the corn. Other evidence indicat es that the corn was to be fed to Meat ’ s cattle. The

6 The questio n read as follows: “ Did [Meat] fail to comply with their obligations to [ USA ] arising out of the corn transactions described below? ” The jury answered “ yes ” regarding all the listed transactions.15

rather loose nature of the transactions comports with the over all loose nature of the business relationship ( i.e. , the buying , feeding , and selling of cattle) in which Meat an d USA engaged for some time . Simply put , their continuing course of conduct supplied the evidence Meat now claim s was missing

. As for the co mplaints about Question 12 , we say the following. 7 Meat mistakenly argues that the damages awarded therein were not predicated on a finding of breached
contract . Th e requisite predicate appeared through the answer to Question 11. And , because Meat failed to object to the “ compositional problem[s ] ” in Question 11 , it cannot

now argue that the answer was insufficient to be the predicate to Qu estion 12. So too do we find evidence of record indicating damages of $284 , 742 , i.e. , the amount awarded. USA ’ s bookkeeper testified to same. Thus , the finding has evidentiary support. Furthermore , USA ’ s E xhibit 501 itemized the sums comprising the $28 4 , 742 soug ht by and awarded to it , and the itemization included amounts attributable to interest. As for the allegation that there was no evidence of Meat agreeing to pay the 4.5 % interest rate included in the award given under Question 12 , statute entit led USA to charge a rate of 6%. See T EX

. F IN

. C ODE A NN

. § 302.002 (We s t 2016 ) (stating that , “ [i] f a creditor has not agreed with an obligor to charge the obligor any interest , the creditor may charge and receive from the obligor legal interest at the ra te of six percent a year on the principal amount of the credit extended beginning on the 30th day after the date on which the amount is due ” ). Having the authority to charge a rate of 6% , USA was free to charge less. And , we cannot accept Meat ’ s supposit ion th at USA failed to prove the rate was

7 The question read as follows: “ What sum of money , if any , if paid now in cash , would fairly and reasonably compensate [ USA ] for its damages , if any , that resulted from such failure to comply? ” The jury answered “ $284 , 742.27. ”16

reasonable when the rate levied was less than that permitted by statute. Consequently , Meat ’ s complaint about Question 12 and the jury ’ s answer to it are overruled as well. Attorney ’ s F

ees Meat finally complains a bout the award of attorney ’ s fees to USA. The jury initially denied such fees to USA. The trial court subsequently awarded them via judgment notwithstanding the verdict. Among other things , Meat now contends that the fees should be disallowed because ne ith er statute nor contract provided for same. In response , USA conceded that its attorney ’ s fees were not recoverable under section 38 of the Civil Practice and Remedies Code and “ agree [d] that attorneys ’ fees must be based on the agreement in the promiss ory no tes

. ” We sustain the issue. The clause in the promissory note concerning attorney ’ s fees stated that the

“ undersigned agrees that if

. . . this Note is [p] laced in the hands of an y attorney for collec tion or to defend or enforce any of the holder ’ s right s hereunder or any instrument securing payment of th is Note , the undersigned will pay to such hold er its reasonabl e attorney ’ s fees ” as well as “ all court costs and other expenses incurred in connection therewith. ” This provision contemplates effort to co llect upon , defend , or enforce the promissory note. Yet , USA did not sue upon the promissory note. Indeed , in addressing Meat ’ s contentions about Question 7 lacking the elements of a suit on a promissory note , it argued that Meat ’ s position was “ ba sed on the faulty premise that USA was seeking relief as a secured creditor trying to recover a balance on a promissory note after a foreclosure on collateral. ” Rather , “ USA alleged in its pleadings and the undisputed evidence showed that the parties made a series of agreements by which [Meat] acquired cattle from third parties and from USA for feeding and care , [and] USA provided feed and care for their cattle , a nd USA financed that program. ” Furthermore , the “ [p] romissory17

notes were used as a means to k eep track of the transactions until [Meat] breached its agreements and stopped signing notes , but the overall claim was one for breach of
contract , ” and the trial court “ properl y submitted the case on a breach of contract basis. ” In other words , USA sued Meat for breaching what we earl ier labelled the umbrella agreement , not for breaching the promissory notes. Thus , the attorney ’ s fee s provision s within the note s were inapplicable. Simply put , USA was not suing to collect , defend , or enforce the notes , a nd , consequently , an award of fees cannot be founded upon those
notes. In sum , we overrule all issues asserted by Meat save for that related to the award of attorney ’ s fees. Consequently , we modify the final judgment to redact therefrom the award of att orney ’ s fees granted USA and then affirm said judgment as modified.

Brian Quinn Chief Justice