AFFIRMED IN PART, REVERSED IN PART, and REMANDED; and 

Opinion Filed February 2, 2024

In the

Court of Appeals

Fifth District of Texas at Dallas

No. 05-22-01231-CV

HOUSE OF RAEFORD FARMS, INC., OZARK MOUNTAIN POULTRY, 

INC., AND FIELDALE FARMS CORPORATION, Appellants

V.

SOMMA FOOD GROUP, LLC, Appellee

On Appeal from the 14th Judicial District Court

Dallas County, Texas

Trial Court Cause Nos. DC-17-00698, DC-21-17119

MEMORANDUM OPINION

Before Justices Carlyle, Smith, and Kennedy

Opinion by Justice Carlyle

In this consolidated appeal, House of Raeford Farms, Inc., Ozark Mountain 

Poultry, Inc., Fieldale Farms Corporation, and SOMMA Food Group, LLC each 

challenge various aspects of the trial court’s final judgment entered after a jury trial. 

Raeford, Ozark, and Fieldale also challenge the trial court’s judgment dismissing 

their petition for a bill of review. We affirm and reverse the final judgment in part, 

affirm the trial court’s judgment dismissing the bill of review, and remand for further 

proceedings consistent with this memorandum opinion. See TEX. R. APP. P. 47.4.
–2–

This dispute stems from contaminated chicken tenders SOMMA sold to the 

New York City Department of Education (NYCDOE) for its school cafeterias. 

Raeford manufactured the tenders for SOMMA, using raw chicken provided by 

Ozark and Fieldale. Almost immediately after SOMMA began supplying the tenders 

to the NYCDOE in June 2016, consumers began finding bone shards and pieces of 

plastic in them.

After SOMMA told Raeford about the consumer complaints, Raeford sent 

SOMMA a September 23, 2016 letter promising to assess its suppliers’ x-ray 

capabilities for detecting objects in the raw materials. Raeford explained that if it 

had to start x-raying the product itself, SOMMA would have to agree to a price 

change to “cover the extra value added process step.” On September 29, 2016, 

SOMMA instructed Raeford to begin x-raying the product at an additional cost of 

8.8 cents per pound. Further, SOMMA instructed Raeford to “use the material from 

Fieldale that has been through the X ray” and use “up the load from” Ozark, who 

lacked x-raying capabilities, noting that it would “work on the issue before moving 

forward with [Ozark’s] product.”

After providing those instructions to Raeford, SOMMA placed nine more 

orders between October 13 and November 16, 2016. SOMMA did not pay for those 

orders, and it soon switched manufacturers from Raeford to non-party OK Foods.

But the switch did not solve SOMMA’s manufacturing problems. In fact, consumers

also found objects in the tenders manufactured by OK Foods, including pieces of 
–3–

metal, which ultimately led to a USDA recall in March 2017. The NYCDOE then 

pulled all of SOMMA’s products from its menus.

SOMMA sued Raeford in January 2017, alleging various causes of action

including breach of contract, negligence, and fraud. Raeford countersued for breach 

of contract and asserted cross-claims against Ozark and Fieldale. SOMMA amended 

its petition to add claims against Ozark and Fieldale.

The case went to trial, and the jury returned a verdict mostly in SOMMA’s 

favor. The jury found that Raeford breached its contract with SOMMA, causing 

$2,504,699 in damages. But the jury also found that SOMMA breached its contract 

with Raeford, causing $505,841.05 in damages. In addition, the jury found in 

SOMMA’s favor on its negligence claims, finding that SOMMA suffered 

$7,639,466.25 in damages and apportioning negligence 25% to SOMMA, 50% to 

Raeford, 10% to Fieldale, 10% to Ozark, and 5% to OK Foods. The jury rejected 

SOMMA’s gross negligence and fraud theories. With respect to Raeford’s crossclaims, the jury found Ozark and Fieldale breached their contracts with Raeford, 

with each responsible for $1,018,595.50 in damages.1

The trial court entered final judgment on the verdict, awarding SOMMA the 

$2,504,699 in contract damages the jury found against Raeford and awarding

 

1 Raeford did make an indemnity claim, and the jury found Ozark and Fieldale each supplied defective 

products that Raeford in turn supplied to SOMMA causing injury. But the trial court did not enter an award 

on Raeford’s indemnity claim, no party appeals from the trial court’s decision not to award damages for 

indemnity, and thus we need not address Fieldale’s challenges to Raeford’s indemnity claim.
–4–

SOMMA its attorney’s fees for that claim. The trial court also awarded SOMMA 

$763,946.63 each from Fieldale and Ozark based on the jury’s findings that each 

was 10% responsible for SOMMA’s negligence damages. The trial court did not 

award negligence damages against Raeford. With respect to Raeford’s claims, the 

trial court awarded $1,018,595.50 in contract damages each from Fieldale and 

Ozark, but it disregarded the jury’s verdict on Raeford’s contract claim against 

SOMMA and did not award attorney’s fees on any of Raeford’s contract claims.

Each party appealed or cross-appealed from portions of the final judgment. 

And while those appeals were pending, federal officials filed criminal charges 

against SOMMA’s principals, alleging that they bribed a senior executive of the 

NYCDOE, Eric Goldstein, by providing him with equity and cash through a separate

entity—Range Meats Supply Company, LLC (RMSC)—in exchange for his 

assistance in getting and keeping SOMMA’s products on NYCDOE menus.

According to the criminal complaint and affidavit in support, Mr. Goldstein oversaw 

the management, budget, and operations for the NYCDOE’s Office of Food and 

Nutrition Services, which was responsible for procuring contracts with food 

manufacturers and distributors.

After learning about the criminal allegations and on Raeford’s motion, we 

abated the parties’ pending appeals from the final judgment so Raeford could pursue 

a bill of review in the trial court. Fieldale, Ozark, and Raeford filed a petition for bill 

of review asking the trial court to set aside the final judgment alleging that SOMMA 
–5–

fraudulently withheld information about its principals’ alleged bribery scheme, 

preventing the parties from asserting meritorious defenses to SOMMA’s claims.

The trial court summarily dismissed the petition for bill of review, and 

Fieldale, Ozark, and Raeford appealed. We reinstated the parties’ appeals and crossappeals from the final judgment and consolidated them into the appeal from the bill 

of review dismissal.

FIELDALE’S APPEAL FROM THE FINAL JUDGMENT

SOMMA’s Negligence Award against Fieldale

Fieldale first challenges the negligence award in favor of SOMMA, arguing 

that SOMMA’s negligence claim is barred by the economic loss rule. “In actions for 

unintentional torts, the common law has long restricted recovery of purely economic 

damages unaccompanied by injury to the plaintiff or his property—a 

doctrine . . . referred to as the economic loss rule.” LAN/STV v. Martin K. Eby Const. 

Co., Inc., 435 S.W.3d 234, 235 (Tex. 2014). Whether the rule applies to bar a tort 

claim is a question of law we review de novo. Eagle Oil & Gas C. v. Shale Expl., 

LLC, 549 S.W.3d 256, 268 (Tex. App.—Houston [1st Dist.] 2018, pet. dism’d).

The “rule was initially formulated to set perimeters in product liability cases.” 

Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 415 (Tex. 2011). It

applies in that context “when losses from an occurrence arise from failure of a 

product and the damage or loss is limited to the product itself.” Id. at 417–18 

(quoting Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 867 (Tex. 
–6–

2007)). In products cases, “when no physical injury has occurred to persons or other 

property,” “the parties’ economic losses [are] more appropriately addressed through 

statutory warranty actions or common law breach of contract suits than tort claims.” 

Id. at 418. And the rule applies to bar these tort claims “even [when] parties [are] not 

in privity (e.g. a remote manufacturer and a consumer).” Id.; see also Pugh v. Gen. 

Terrazzo Supplies, Inc., 242 S.W.3d 84, 92 (Tex. App.—Houston [1st Dist.] 2007, 

pet. denied) (The “economic loss doctrine has been . . . applied to preclude tort 

claims for economic losses made directly against a manufacturer or supplier of a 

defective component part that causes damage to the ‘finished product’ into which 

the component is incorporated.”).

The rule has two primary rationales: (1) because purely economic harm is not 

self-limiting like physical injury is, allowing its recovery in tort could lead to 

indeterminate and disproportionate liability that discourages economic activity; and 

(2) the risks of economic losses are well suited to allocation by contract, where 

parties familiar with their own economic needs may protect themselves through 

insurance or indemnity agreements and price their transactions accordingly. See 

LAN/STV, 435 S.W.3d at 241 (citing RESTATEMENT (THIRD) OF TORTS § 1 cmt. c.)

(Am. L. Inst. 2012)); see also Equistar Chems., L.P., 123 S.W.3d at 590 (“The rule 

is based on the proposition that commercial parties may negotiate for whatever 

warranty or liability limits they choose, and adjust their price accordingly.”).
–7–

Here, SOMMA sought to recover negligence damages for purely economic 

losses caused by a defective product. Indeed, SOMMA’s damages expert testified 

that he calculated economic damages, and the jury awarded only economic “lost 

profits” damages on SOMMA’s negligence claim. See Nobility Homes of Tex., Inc. 

v. Shivers, 557 S.W.2d 77, 78 n.1 (Tex. 1977) (explaining that “loss of profits 

resulting from inability to make use of the defective product” is a “consequential 

economic loss”). SOMMA’s negligence award is the sort of tort recovery prohibited 

by the economic loss rule.

SOMMA points to the supreme court’s instruction in LAN/STV that there is 

no “bright-line rule” applicable in all situations and that determining whether the 

economic loss rule applies in a “particular kind of situation” requires an analysis of 

whether the rationales behind the rule justify its application. See 435 S.W.3d at 235–

36, 241. Precedent governs the outcome in the situation at issue, where a commercial 

entity seeks to recover economic losses resulting from a defective product: Texas 

courts have concluded that the rationales behind the economic loss rule favor its 

application. See Mid Continent Aircraft Corp. v. Curry Cnty. Spraying Service, Inc., 

572 S.W.2d 308, 312–13 (Tex. 1978); Equistar Chems., L.P. v. Dresser-Rand Co.,

123 S.W.3d 584, 587, (Tex. App.—Houston [14th Dist.] 2003) (“In transactions 

between commercial buyers and sellers, if damage occurs only to the product that 

passed between them, the claim is one for economic loss and must be brought on the 

parties’ contract; conversely, if there is physical injury to persons or ‘other property’ 
–8–

(that is, property other than the product itself), those claims may be brought in tort.”), 

overruled on other grounds, 240 S.W.3d at 867.

We disagree with SOMMA that the rationales underlying the economic loss

rule do not support its application here. Allowing SOMMA to reach up the supply 

chain to recover purely economic losses against other parties involved in 

manufacturing its product risks imposing the sort of indeterminate and 

disproportionate liability the rule is intended to protect against. If SOMMA wished 

to insulate itself against economic loss beyond the remedies provided by the Uniform 

Commercial Code, it could have contracted to do so, and the parties could have 

priced their transactions accordingly. See LAN/STV, 435 S.W.3d at 241; Equistar 

Chems., L.P., 123 S.W.3d at 590.

We cannot agree with SOMMA’s argument that the economic loss rule does 

not apply because Fieldale breached an independent duty it owed SOMMA. See 

Chapman Custom Homes, Inc. v. Dallas Plumbing Co., 445 S.W.3d 716, 718 (Tex. 

2014) (the economic loss rule does not bar a tort claim if “the duty allegedly 

breached is independent of the contractual undertaking and the harm suffered is not 

merely the economic loss of a contractual benefit”); see also Dixie Carpet 

Installations, Inc. v. Residences at Riverdale, LP, 599 S.W.3d 618, 634 n.10 (Tex. 

App.—Dallas 2020, no pet.) (the key to tort claims falling outside the economic loss 

rule “is whether the defendant owes the plaintiff a duty independent from the 

contractual duty”). SOMMA cites Jacob E. Decker & Sons v. Capps, 164 S.W.2d 
–9–

828, 829 (Tex. 1942), as establishing a “special duty” owed by food manufacturers 

to ensure that their products are safe for human consumption. To the extent Decker

established a duty, that duty is owed only to the “ultimate consumer” whose 

consumption of contaminated food could be “disastrous to human health and life.” 

Id. Regardless, the supreme court later explained that Decker is not “authority for 

allowing the recovery of economic loss.” Nobility Homes, 557 S.W.2d at 78.

SOMMA’s reliance on duties Fieldale may have owed under federal safety

regulations is similarly misplaced. Fieldale’s duty to comply with federal safety 

regulations is a duty owed to the United States for the benefit of consumers, and

commercial parties like SOMMA cannot assert private causes of action for violations

of those regulations. See 21 U.S.C. § 467c (“All proceedings for the enforcement or 

to restrain violations of this chapter shall be by and in the name of the United 

States.”). Fieldale owes SOMMA no actionable, independent duties under those 

regulations.

We agree with Fieldale that the economic loss rule precludes SOMMA’s 

negligence award, need not address Fieldale’s other arguments challenging 

SOMMA’s negligence award, and reverse and render judgment that SOMMA take 

nothing on its negligence claim against Fieldale.

Raeford’s Contract Award against Fieldale

Evidence is legally insufficient when: “(1) the record discloses a complete 

absence of evidence of a vital fact”; “(2) the court is barred by rules of law or
–10–

evidence from giving weight to the only evidence offered to prove a vital fact”; 

“(3) the evidence offered to prove a vital fact is no more than a mere scintilla”; or 

“(4) the evidence conclusively establishes the opposite of a vital fact.” Hill v. 

Shamoun & Norman, LLP, 544 S.W.3d 724, 736 (Tex. 2018). In reviewing legal 

sufficiency, we must consider all record evidence in the light most favorable to the 

verdict. Id. And “the final test for legal sufficiency must always be whether the 

evidence at trial would enable reasonable and fair-minded people to reach the verdict 

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

To prove its claim for breach of contract, Raeford had to establish: (1) a valid 

contract; (2) its performance or tendered performance; (3) Fieldale’s breach; and 

(4) damages resulting from that breach. See Dixie Carpet, 599 S.W.3d at 625. We 

agree with Fieldale that the evidence does not support the jury’s conclusion that it 

breached its contract with Raeford by failing to provide “boneless” raw chicken

according to the parties’ agreement.

The evidence at trial established Raeford understood the term “boneless”—as 

it applied to the raw materials Fieldale provided for further processing—did not 

mean 100% bone-free. Rather, Raeford understood that as long as bone content was 

kept below certain thresholds, the product would qualify as “boneless” even if it 

contained small amounts of bone. Indeed, Raeford expert Dr. Kevin Keener testified 

that Raeford knew or should have known the “boneless” raw materials it received 

from suppliers would contain some bones. He added that federal labeling regulations 
–11–

required only that “boneless” poultry products not “have a bone solids content of 

more than 1 percent calculated on a weight basis,” noting that such regulation was 

the only federal regulation addressing bone content in “boneless poultry products.” 

Dr. Keener testified that Raeford’s internal “boneless” standard allowed for “no 

more than two bones of a half-inch in size per 10 pounds or no more than one large 

bone per 10 pounds.” According to Dr. Keener, “every piece of raw material that 

Fieldale submitted” satisfied Raeford’s “boneless” standards. And Raeford corporate 

representative Marty Gautreau testified that Raeford “got exactly what [it] ordered 

from Fieldale.”

But the jury found Fieldale breached its agreement to provide Raeford with 

“boneless” raw materials because bones were found in the chicken tenders Raeford 

produced using raw materials supplied by Fieldale and Ozark. Raeford argues the 

jury was free to disregard its own representatives’ testimony and adopt the 

understanding espoused by SOMMA expert Dr. William James, who opined that

“‘boneless’ means ‘without bones.’” From that premise, Raeford argues the jury was 

free to conclude Fieldale breached its contract with Raeford because the raw 

materials Fieldale provided were not “without bones.”

Although Raeford is correct that a jury is generally free to resolve conflicts in 

the evidence, there is no material conflict as to what Raeford and Fieldale—the only 

parties to the contract at issue—understood “boneless” to require. Direct, 

uncontroverted evidence established that Raeford understood and agreed that the 
–12–

“boneless” chicken Fieldale provided did not have to be 100% bone-free and that 

Fieldale gave Raeford “exactly what [it] ordered.” The jury was not free to disregard

the evidence of Raeford’s understanding of what “boneless” required in its contract 

with Fieldale, to find a breach based on a third party’s understanding of what 

“boneless” might require outside the context of Raeford’s contract with Fieldale.

The evidence conclusively establishes the opposite of a vital fact—the 

meaning of “boneless” between Raeford and Fieldale—and therefore is legally 

insufficient to support the jury’s verdict that Fieldale breached its agreement with 

Raeford by failing to provide “boneless” raw materials. Accordingly, we need not 

address Fieldale’s arguments concerning whether Raeford sufficiently proved it 

suffered damages on that claim. We reverse and render judgment that Raeford take 

nothing on its breach of contract claim against Fieldale.

OZARK’S APPEAL FROM THE FINAL JUDGMENT

SOMMA’s Negligence Award against Ozark

Ozark also argues SOMMA’s negligence award is barred by the economic 

loss rule. The legal questions and material facts governing this issue are identical to 

those regarding SOMMA’s negligence award against Fieldale. For the same reasons 

we explained above, we conclude that SOMMA’s negligence claim against Ozark is 

barred by the economic loss rule. Accordingly, we need not reach Ozark’s other 

arguments challenging SOMMA’s negligence award. We reverse and render

judgment that SOMMA take nothing on its negligence claim against Ozark.
–13–

Raeford’s Contract Award against Ozark

Ozark also appeals Raeford’s award for breach of contract. The legal 

questions governing this issue are identical to those we addressed regarding 

Raeford’s contract award against Fieldale, and the facts are nearly identical. As we

noted above, Raeford’s representatives testified directly that Raeford was aware 

there could be bones in the raw materials it received, and its expert testified that 

Raeford’s own internal standard for “boneless” did not require that a product be 

100% bone-free. Raeford’s corporate representative further testified that with 

respect to its orders from Ozark, Ozark gave Raeford what it asked for.

For the same reasons we outlined regarding Fieldale, we reject Raeford’s 

argument that the jury was free to disregard its own representatives’ testimony as to 

Raeford’s understanding of what its contract with Ozark required in favor of 

applying SOMMA’s expert’s understanding of what “boneless” required outside the 

context of the contract between Raeford and Ozark. The evidence does not 

sufficiently support the jury’s conclusion that Ozark breached its contract by failing 

to provide “boneless” raw materials as the parties at issue understood that term. We 

reverse and render judgment that Raeford take nothing on its breach of contract claim 

against Fieldale.

2

 

2 Because of our disposition, we need not reach Ozark’s arguments concerning whether Raeford 

sufficiently proved it suffered damages or whether the trial court erred in its charge to the jury concerning 

Raeford’s contract damages. We also need not address Raeford’s conditional cross issue concerning error 

in rejecting Raeford’s proposed question on its contract damages.
–14–

RAEFORD’S CROSS-APPEAL FROM THE FINAL JUDGMENT

Raeford’s Breach of Contract Claim against SOMMA

Raeford contends the trial court erred by disregarding the jury’s findings that 

SOMMA breached its contract with Raeford and caused Raeford $505,841.05 in 

damages. A trial court may disregard a jury finding only if it has no support in the 

evidence or if it is immaterial. Se. Pipe Line Co., Inc. v. Tichacek, 997 S.W.2d 166, 

172 (Tex. 1999). “A question is immaterial when it should not have been submitted, 

it calls for a finding beyond the province of the jury, such as a question of law, or 

when it was properly submitted but has been rendered immaterial by other findings.”

Id.

SOMMA concedes that the evidence shows it did not pay for a portion of the 

chicken tenders it received from Raeford, which sufficiently supports the jury’s 

findings on breach and damages. But SOMMA claims the trial court correctly 

disregarded the jury’s findings because they are immaterial in light of the jury’s 

finding that Raeford breached its contract with SOMMA. According to SOMMA, 

the evidence conclusively established that Raeford materially breached the contract 

first by providing SOMMA with “boneless” chicken tenders containing bone,

rendering those tenders dangerous and unfit for human consumption. SOMMA 

argues Raeford’s prior material breach excused its refusal to pay Raeford.

When a party materially breaches a contract, the other party is excused from 

any further obligation to perform under the contract and the non-breaching party 
–15–

may terminate the agreement and sue for breach. See Hernandez v. Gulf Grp. Lloyds, 

875 S.W.2d 61, 692 (Tex. 1994); Long Trusts v. Griffin, 222 S.W.3d 412, 415 (Tex. 

2006). But if the non-breaching party treats the contract as continuing after the

material breach, it deprives itself of any excuse for ceasing its own performance and

“the contract continues in force for the benefit of both parties.” Rescue Concepts Inc. 

v. HouReal Corp., --- S.W.3d ---, No. 01-20-00553-CV, 2022 WL 2976299, at *7 

(Tex. App.—Houston [1st Dist.] July 28, 2022, pet. denied) (quoting Gupta v. E. 

Idaho Tumor Inst., Inc., 140 S.W.3d 747, 756 (Tex. App.—Houston [14th Dist.] 

2004, pet. denied)).

Here, even if the evidence conclusively established that Raeford materially 

breached the parties’ contract first by failing to remove all bones from the chicken 

tenders it sold SOMMA, the evidence also established that SOMMA was aware of 

that material breach by September 2016. Yet, instead of terminating the agreement

and suing Raeford for damages, SOMMA elected to treat the agreement as 

continuing. Indeed, it notified Raeford of the bone complaints in September 2016 

and instructed Raeford to begin x-raying the product at an additional cost of 8.8 cents 

per pound in an effort to avoid further bone contamination. SOMMA also instructed 

Raeford at that time to “use the material from Fieldale that ha[d] been through the X 

ray” and use up “the load from” Ozark, noting that it would “work on the issue before 

moving forward with [Ozark’s] product.” SOMMA then placed—but refused to pay 

for—nine more orders between October 13 and November 16, 2016.
–16–

By treating the contract as continuing after learning that Raeford had 

materially breached the agreement, SOMMA deprived itself of any excuse for 

refusing to pay for the additional product it ordered after that breach. At a minimum, 

the evidence raised a fact issue as to whether SOMMA treated the contract as 

continuing after it knew Raeford was not providing a bone-free product. And fact 

issues existed with respect to the timing and materiality of any other breaches 

SOMMA alleges may have justified its refusal to pay for the orders it placed after 

learning about the bone complaints. On this record, SOMMA did not conclusively 

establish its prior material breach defense, and the trial court could not rely on that 

defense as grounds to disregard the jury’s finding that SOMMA breached its contract 

with Raeford.

SOMMA also argues that the trial court could have properly disregarded the 

jury’s findings because the jury question addressing SOMMA’s breach “improperly 

submitted U.C.C. issues regarding a claim Raeford pleaded as breach of a contract 

for services.” This argument lacks merit. SOMMA seizes on a few statements in 

Raeford’s counterclaim suggesting it provided “services” in connection with 

producing the chicken tenders for SOMMA. Based on those statements, SOMMA 

argues that Raeford pleaded its claim as one for breach of a “service” contract that 

falls outside the UCC. This ignores Raeford’s statements specifically describing the 

contract at issue as one for “products.” Indeed, Raeford stated that it “and SOMMA 

are parties to a valid and enforceable contract in the form of accepted purchase 
–17–

orders, invoices, bills of lading, and other documents and agreements by which 

[Raeford] promised to supply certain chicken products to SOMMA and SOMMA 

agreed to pay [Raeford] for those products.” Raeford further stated that it performed 

under the contract by “producing the chicken” and “tendering that chicken to 

SOMMA for delivery.” Contrary to SOMMA’s assertions, Raeford did not judicially 

admit that the “contract at issue was one for services” to which the UCC does not 

apply.

That said, when “a contract contains a mix of sales and services, the UCC 

applies if the sale of goods is the ‘dominant factor’ or ‘essence’ of the transaction.”

See Summit Glob. Contractors, Inc. v. Enbridge Energy, L.P., 594 S.W.3d 693, 700 

(Tex. App.—Houston [14th Dist.] 2019, no pet.). The “dominant factor” or “essence” 

of the Raeford-SOMMA agreement was the sale of goods—processed chicken

tenders—not services, and we conclude the UCC applies. The trial court could not 

disregard the jury’s breach and damages findings on the basis that the jury charge 

erroneously referred to UCC issues.

SOMMA next argues the trial court could have properly disregarded the jury’s 

breach and damages findings even if the UCC applies because the charge did not 

instruct the jury on revocation of acceptance. Under the UCC, a buyer may revoke 

his acceptance of non-conforming goods if certain conditions are satisfied. See TEX.

BUS. & COM. CODE § 2.608. According to SOMMA, Raeford was required to prove 

SOMMA did not timely revoke its acceptance of the chicken tenders as an element 
–18–

of its claim for breach of contract. From that premise, SOMMA arguesthat Raeford’s 

failure to submit that “element” in the jury charge entitled SOMMA to a judgment 

in its favor.

SOMMA’s argument is based on an incorrect premise. Revocation of 

acceptance is not an element of a seller’s claim for breach of contract; it is a defense, 

and the buyer bears the burden to plead, prove, and request the court submit it as a 

jury issue. See Carrow v. Bayliner Marine Corp., 781 S.W.2d 691, 695 (Tex. App.—

Austin 1989, no pet.) (“Having accepted the boat, the [buyers] had the burden to 

plead and prove proper revocation of acceptance under section 2.608 of the UCC.

The [buyers] failed to plead revocation, request the submission of a jury issue on 

revocation, or prove revocation as a matter of law. Accordingly, the [buyers] are not 

entitled to revocation as a matter of law under the UCC.”); see also Cooper v. Lyon 

Fin. Servs., 65 S.W.3d 197, 205–06 (Tex. App.—Houston [14th Dist.] 2001, no pet.)

(revocation of acceptance is a defense to a breach of contract claim; when buyer 

failed to submit a substantially correct instruction on the issue, the trial court 

properly declined to give the instruction). As the seller, Raeford had no burden to 

seek an instruction on revocation of acceptance. SOMMA failed to plead revocation 

or submit a substantially correct jury instruction on that issue,

3 was not entitled to a 

 

3 The parties dispute whether SOMMA produced evidence that could support a revocation submission. 

We need not decide that issue because, assuming the evidence was sufficient, SOMMA did not (a) plead 

revocation or (b) submit a substantially correct instruction that would entitle it to a submission on the issue.
–19–

revocation instruction, and the trial court could not disregard the jury’s verdict in 

Raeford’s favor on this basis. See TEX. R. CIV. P. 278; Carrow, 781 S.W.2d at 695.

We agree with Raeford that there was no permissible basis for the trial court 

to disregard the jury’s findings on its breach of contract claim against SOMMA. We 

reverse and render judgment awarding Raeford the contract damages the jury found 

against SOMMA.

Raeford’s Request for Attorney’s Fees against SOMMA

Raeford next contends that because the trial court erred by disregarding the 

jury’s findings in its favor on its breach of contract claim against SOMMA, the trial 

court also erred by denying its request for attorney’s fees incurred pursuing that

claim. To recover attorney’s fees from an opponent, the prevailing party must prove 

both that such recovery is legally authorized and that the requested fees are 

reasonable and necessary. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 

S.W.3d 469, 487 (Tex. 2019). Fee-shifting is not legally authorized “unless there is 

specific statutory or contractual authority allowing it.” Id.

Raeford contends it is entitled to recover its attorney’s fees under an 

agreement SOMMA signed as part of an application for credit. As relevant to the 

issues on appeal, the credit agreement states:

I/We, the undersigned, in consideration of House of Raeford, Inc. 

extending credit to the above named applicant, do hereby 

unconditionally guarantee payment of all indebtedness, liabilities, or 

obligations applicant shall at any time owe to House of Raeford Farms, 

Inc. . . . This guarantee extends to and includes any and all interest due 
–20–

or becom[ing] due together with . . . all costs and expenses including 

but not limited to collection agency fees, attorney fees and court costs 

incurred by House of Raeford Farms, Inc. in connection with any matter 

covered by this agreement.

SOMMA contends Raeford cannot recover its attorney’s fees under that 

agreement because Raeford did not plead the agreement as a basis for recovering 

those fees. But SOMMA did not object to Raeford’s fee request on that basis. 

Instead, SOMMA offered its own arguments and evidence attacking Raeford’s fee 

request as unreasonable. Indeed, SOMMA’s attorney expert testified:

House of Raeford claims that its fees derive from a purported credit 

agreement that was never discussed or published to the jury at trial, and 

about which no one asked a single question throughout the case. In my 

opinion, no evidence supports House of Raeford’s request for 

$2,051,935.86 based on 11 lines of testimony and an alleged credit 

agreement that was partially executed, never discussed during any 

deposition, and never shown to the jury.

“When issues not raised by the pleadings are tried by express or implied 

consent of the parties, they shall be treated in all respects as if they had been raised 

by the pleadings.” TEX. R. CIV. P. 67. Here, the record demonstrates that SOMMA 

tried the issue of Raeford’s fee request under the credit agreement by consent, and 

thus Raeford’s pleadings provide no grounds for denying Raeford’s fee request 

under that agreement.

We disagree with SOMMA’s assertion that the agreement does not apply to 

Raeford’s breach of contract claim. The jury found that SOMMA breached its 

contract with Raeford by refusing to pay for products it ordered and accepted from 
–21–

Raeford. One of the matters “covered by” the credit agreement was SOMMA’s 

unconditional guarantee to pay “all indebtedness, liabilities, or obligations 

[SOMMA] shall at any time owe to” Raeford. Thus, any attorney’s fees Raeford 

incurred to collect the balance owed by SOMMA for the products it accepted but did 

not pay for were incurred “in connection with [a] matter covered by” the credit 

agreement.

SOMMA also contends Raeford cannot recover its fees because it failed to

prove those fees were reasonable and necessary. Although a trial court has discretion 

to determine what attorney’s fees are reasonable and necessary, it lacks discretion to 

deny those fees entirely when an award is required under the parties’ contract. VSDH 

Vaquero Venture, Ltd. v. Gross, No. 05-16-01041-CV, 2017 WL 3405312, at *5 (Tex. 

App.—Dallas Aug. 9, 2017, no pet.) (mem. op.). Here, the trial court did not 

determine the amount of Raeford’s reasonable and necessary fees because it 

erroneously disregarded the jury’s verdict on Raeford’s contract claim against 

SOMMA. Under these circumstances, remand is appropriate to allow the trial court 

to determine the amount of Raeford’s reasonable and necessary fees in the first 

instance. We reverse the judgment denying Raeford’s attorney’s fees on its contract 

claim against SOMMA and remand for the trial court to determine the amount of 

fees it will award Raeford.
–22–

SOMMA’s Attorney’s Fees Award against Raeford

Raeford next contends the trial court erred by awarding SOMMA attorney’s 

fees on its contract claim against Raeford because those fees are not authorized by 

statute or contract. SOMMA sought to recover its attorney’s fees under civil 

practices and remedies code section 38.001, but Raeford argues that statute does not 

apply for two reasons: (1) Texas law does not govern SOMMA’s contract claim; and 

(2) Raeford is not a “corporation.” The availability of attorney’s fees under a given

statute is a question of law we review de novo. See Holland v. Wal-Mart Stores, Inc., 

1 S.W.3d 91, 94 (Tex. 1999) (per curiam).

Raeford first argues, without acknowledging SOMMA’s Texas connections, 

that either New York or North Carolina law should govern the availability of 

attorney’s fees because those states have the “most significant relationship” to 

SOMMA’s contract claim. But Raeford submitted both its own contract claim and 

its fee request against SOMMA under Texas law, and it does not explain why Texas

has a significant enough relationship to govern its own contract claim but not 

SOMMA’s claim for breach of the same contract. Raeford also failed to object when 

SOMMA submitted its contract claim to the jury under Texas law.

Regardless, choice of law issues can be waived if not properly invoked. 

Kubbernus v. ECAL Partners, Ltd., 574 S.W.3d 444, 473 (Tex. App.—Houston [1st 

Dist.] 2018, pet. denied). A party wishing to require the application of another state’s 

law must make a motion under rule 202 asking the court to take judicial notice of 
–23–

the other state’s law, and it must supply the court with the necessary information to 

do so. See TEX. R. EVID. 202; Collins v. Tex Mall, L.P., 297 S.W.3d 409, 414 (Tex. 

App.—Fort Worth 2009, no pet.). When a party fails to properly request judicial 

notice under rule 202, “Texas courts will simply presume that the law of the other 

state is identical to Texas law.” Collins, 297 S.W.3d at 414 (quoting Coca-Cola Co. 

v. Harmar Bottling Co., 218 S.W.3d 671, 65 (Tex. 2006) (Brister, J., dissenting)). By 

failing to file an appropriate motion under rule 202, Raeford waived its choice of

law issue, and the trial court could presume Texas law was identical to that of any 

other potentially applicable jurisdiction. 

Raeford also argues that even if Texas law applies, SOMMA cannot recover 

its fees under section 38.001 because, as a cooperative marketing association 

organized under North Carolina law, Raeford is not a “corporation” to which section 

38.001 applies.

4 But a cooperative marketing association is, by definition, a 

corporation under North Carolina law. N.C. GEN. STAT. § 54-130 (an “association” 

is either any “corporation organized under” that subchapter or any “foreign 

corporation . . . organized . . . as a cooperative association” that meets certain other 

 

4 The version of section 38.001 in force when SOMMA commenced this action provided that a “person” 

asserting a claim for breach of contract could recover “reasonable attorney’s fees from an individual or 

corporation.” The Legislature amended the statute in 2021 to include other forms of business organizations, 

but the amendment applies only to those actions initiated after the amendment became effective in 

September 2021. See Act of June 15, 2021, 87th Leg., R.S., H.B. 1578, § 1, eff. Sept. 1, 2021. Other forms 

of business organizations are not liable for attorney’s fees under the prior version of section 38.001. See 

Varel Int’l Indus., L.P. v. PetroDrillbits Int’l, Inc., No. 05-14-01556-CV, 2016 WL 4535779, at *4 (Tex. 

App.—Dallas Aug. 30, 2016, pet. denied) (mem. op.) (“Under the plain language of section 38.001, a trial 

court cannot order limited liability partnerships (L.L.P.), limited liability companies (L.L.C.), or limited 

partnerships (L.P.) to pay attorneys’ fees.”).
–24–

criteria); see also Speaks v. U.S. Tobacco Cooperative, Inc., 31 F.4th 838, 843 (4th 

Cir. 2022) (noting that a cooperative was “a nonprofit corporation” under the North 

Carolina Marketing Act). The trial court did not err by applying section 38.001, and

we affirm the trial court’s judgment to the extent it awards SOMMA attorney’s fees 

against Raeford.

Raeford’s Request for Attorney’s Fees against Ozark

Raeford next contends the trial court erred by denying its request for 

attorney’s fees against Ozark. Raeford argues that because it prevailed on its contract 

claim against Ozark, it is entitled to recover its attorney’s fees under Arkansas Code 

§ 16-22-308. Given our disposition rendering judgment that Raeford take nothing 

on its contract claim against Ozark, Raeford is not the prevailing party on that claim,

and it is not entitled to recover its attorney’s fees.

SOMMA’S CROSS-APPEAL FROM THE FINAL JUDGMENT

SOMMA argues the trial court erred by concluding the economic loss rule

precluded its negligence claim against Raeford. SOMMA’s arguments on this issue 

overlap almost entirely with those we rejected above with respect to Fieldale’s and 

Ozark’s appeals and we will not repeat our analysis here. The trial court did not err 

by concluding the economic loss rule barred SOMMA’s negligence claim based on 

Raeford’s failure to remove bones from the chicken tenders it sold.

SOMMA raises one argument unique to Raeford, contending the economic 

loss rule does not apply because Raeford breached an independent duty to avoid 
–25–

negligently misrepresenting its experience, manufacturing capabilities, and 

intentions for SOMMA’s product. There is some authority suggesting that 

negligently misrepresenting one’s capabilities during pre-contract negotiations 

violates an independent duty for purposes of the economic loss rule. See, e.g., 

Correct RX Pharm. Servs., Inc. v. Cornerstone Automation Systems, L.L.C., 945 F.3d 

423, 427 (5th Cir. 2019). But we need not decide whether the economic loss rule 

would bar SOMMA’s negligent misrepresentation theory of recovery because the 

jury did not award any damages available under a negligent misrepresentation theory 

of recovery.

With respect to SOMMA’s negligence claim, the jury found that SOMMA 

suffered $7,639,466.25 in lost profits and $0 in incidental costs. A plaintiff’s 

damages for negligent misrepresentation “are limited to out-of-pocket damages.” 

Plano Surgery Ctr. v. New You Weight Mgmt. Ctr., 265 S.W.3d 496, 506 (Tex. App.—

Dallas 2008, no pet.). “Lost profits are not out-of-pocket damages.” Id. Thus, even 

if the jury could have found that Raeford breached an independent duty by making 

a negligent misrepresentation, its damages award for SOMMA’s negligence claim—

which was limited to lost profits—rendered any such finding immaterial. The trial 

court did not err by disregarding the jury’s verdict on SOMMA’s negligence claim 

against Raeford.
–26–

FIELDALE, OZARK, AND RAEFORD’S APPEAL FROM THE BILL OF REVIEW DISMISSAL

Fieldale, Ozark, and Raeford argue the trial court erred by summarily 

dismissing their petition for a bill of review. A bill of review is an equitable action 

seeking to set aside a prior judgment that is no longer challengeable by a motion or 

appeal. Baker v. Goldsmith, 582 S.W.2d 404, 408–09 (Tex. 1979).

Courts do not readily grant bills of review because “it is fundamentally 

important in the administration of justice that some finality be accorded to 

judgments.” Alexander v. Hagedorn, 226 S.W.2d 996, 998 (Tex. 1950). And 

although “it is an equitable proceeding, the fact that an injustice has occurred is not 

sufficient to justify relief by bill of review.” Mosley v. Dallas Cnty. Child Protective 

Servs. Unit of Tex. Dep’t of Protective and Regulatory Servs., 110 S.W.3d 658, 660 

(Tex. App.—Dallas 2003, pet. denied). Nor is it sufficient merely to establish that 

crucial evidence was withheld or false testimony offered. As noted by the supreme 

court,

the mischief of retrying every case in which the judgment or decree 

rendered on false testimony, given by perjured witnesses, or on 

contracts or documents whose genuineness or validity was in issue, and 

which are afterwards ascertained to be forged or fraudulent, would be 

greater, by reason of the endless nature of the strife, than any 

compensation arising from doing justice in individual cases.

Tice v. City of Pasadena, 767 S.W.2d 700, 703 (Tex. 1989) (quoting United States v. 

Throckmorton, 98 U.S. 61, 68–69 (1878)). 
–27–

A petitioner seeking an equitable bill of review must plead and prove (1) a 

meritorious defense to the cause of action alleged to support the judgment, (2) which 

the petitioner was prevented from making by the opposing party’s fraud, accident, 

or wrongful act, (3) unmixed with any fault or negligence on the petitioner’s own 

part. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). “The relevant 

inquiry is not whether ‘the result would probably be different’ on retrial.” Baker, 582 

S.W.2d at 408. When a bill of review is not based on a claim of non-service, the 

petitioner must first present prima facie proof of a meritorious defense. Id. This 

requires the petitioner to establish that its defense is not barred as a matter of law 

and that the petitioner “will be entitled to judgment on retrial if no evidence to the 

contrary is offered.” Id. at 408–09. If the court determines the petitioner has not met 

that burden, it will dismiss the petition, but if the petitioner establishes prima facie 

proof of a meritorious defense, the court will conduct a trial on the merits of the bill 

of review. Id. at 409.

Here, the trial court summarily dismissed the petition before conducting a 

trial, and we review its ruling for abuse of discretion, indulging every presumption 

in its favor. See U.S. Energy Mgmt., Inc. v. JRB Int’l, L.P., No. 05-16-00505-CV, 

2017 WL 1532043, at *3 (Tex. App.—Dallas Apr. 26, 2017, no pet.) (mem. op.). 

That said, whether a petitioner has established a prima facie meritorious defense is 

a question of law, and we review that issue de novo. See Mosley, 110 S.W.3d at 661.
–28–

The petitioners contend the trial court erred by summarily dismissing the 

petition because: (1) the pending appeal of the original judgment does not negate the 

availability of a bill of review; (2) they met their burden to establish a prima facie 

meritorious defense to SOMMA’s claims; and (3) the record either establishes or 

creates fact issues as to whether SOMMA deprived them of one or more meritorious 

defenses through fraud or wrongful acts unmixed with the petitioners’ own 

negligence. We begin with petitioners’ contention that they established a meritorious 

defense to SOMMA’s claims because it is dispositive.

The petitioners rely on a number of documents—including emails and a sworn 

affidavit filed in the federal criminal case—as evidence that SOMMA’s principals 

bribed Mr. Goldstein to assist them in getting and keeping SOMMA’s products on 

the NYCDOE’s menus.5 SOMMA disputes the admissibility and probative force of 

these documents, but we need not address SOMMA’s evidentiary challenges 

because even if those documents are both admissible and sufficient proof of bribery, 

they do not establish a meritorious defense to the claims on which SOMMA obtained 

relief in the final judgment.

The petitioners argue that the evidence of SOMMA’s bribery scheme and

SOMMA’s failure to disclose that scheme to Raeford established four meritorious 

 

5 The petitioners informed us in a pre-submission letter that a jury recently convicted SOMMA’s 

principals of federal crimes in connection with the bribery scheme. But evidence of the convictions was not 

before the trial court in determining the bill of review and is not in the record so it does not affect our 

analysis.
–29–

defenses: (1) unclean hands; (2) fraud; (3) unconscionability; and (4) illegality. The 

petitioners’ arguments lack merit.

The petitioners first contend that because SOMMA sought equitable relief in 

the original proceeding, the unclean hands doctrine would provide a meritorious 

defense to SOMMA’s claims. But the petitioners do not identify any equitable relief 

awarded in the final judgment to which an unclean hands defense might apply. 

Moreover, the party complaining of unclean hands must show that it was injured by 

the offending conduct. Omohundro v. Matthews, 341 S.W.2d 401, 410 (Tex. 1960). 

The petitioners fail to address—much less demonstrate—how SOMMA’s bribery 

scheme, or its failure to disclose that scheme, caused the petitioners any injury.

With respect to fraud, the petitioners offer only the conclusory argument that 

“SOMMA’s concealment of its secret dealings with Goldstein was calculated and 

intended to induce House of Raeford to manufacture the subject chicken tenders that 

House of Raeford would not have manufactured had it known of SOMMA’s fraud.” 

They offer no argument or authority suggesting that a commercial retailer has a duty 

to disclose to its suppliers how it obtained its customers. See McConnell v. 

McConnell, No. 01-10-00300-CV, 2011 WL 286145, at *6 (Tex. App.—Houston [1st 

Dist.] Jan. 27, 2011, no pet.) (mem. op.) (noting that a fraud defense based on nondisclosure requires a “duty to disclose that renders the failure to do so as misleading 

as a positive misrepresentation”). Moreover, the petitioners point to no evidence 
–30–

sufficient to show that SOMMA’s failure to disclose the bribery scheme was 

calculated or intended to do anything other than avoid self-incrimination.

The petitioners likewise failed to establish an unconscionability defense. 

Under the UCC, a court may refuse to enforce a contract if it concludes as a matter 

of law that the contract was unconscionable at the time it was made. See TEX. BUS.

& COM. CODE § 2.302(a). Although unconscionability lacks a precise definition, it 

has been described as a contract “no man in his senses and not under delusion would 

make on the one hand, and as no honest and fair man would accept on the other.” 

Venture Cotton Co-op. v. Freeman, 435 S.W.3d 222, 228 (Tex. 2014) (quoting Earl 

of Chesterfield v. Janssen, 28 Eng. Rep. 82, 100, 2 Ves. Sr. 125, 155 (1751)).

Unconscionability may be either substantive or procedural. Muzquiz v. Para 

Todos, Inc., 624 S.W.3d 263, 275 (Tex. App.—El Paso 2021). “Substantive 

unconscionability refers to the inherent unfairness of a particular contract or 

provision,” whereas procedural unconscionability deals with unfairness in the 

“circumstances surrounding a contract’s adoption.” Id. “A contract is substantively 

unconscionable where its inequity shocks the conscience.” Id. at 276. In assessing 

whether a contract is unconscionable, we consider: “(1) the ‘entire atmosphere’ in 

which the agreement was made; (2) the alternatives, if any, available to the parties 

at the time the contract was made; (3) the ‘non-bargaining ability’ of one party; 

(4) whether the contract was illegal or against public policy; and (5) whether the 
–31–

contract is oppressive or unreasonable.” Id. (quoting Delfingen US-Tex., L.P. v. 

Valenzuela, 407 S.W.3d 791, 797 (Tex. App.—El Paso 2013, no pet.)). 

The petitioners argue, again in conclusory fashion, that SOMMA’s failure to 

disclose its bribery scheme “tainted the negotiation process” between Raeford and 

SOMMA. And they again assert that had “Raeford known of the bribery scheme, it 

would not have entered into any supply contracts with SOMMA for its illegal 

scheme.” But the petitioners fail to identify any aspect of the supply contract or 

negotiation where Raeford had an unfair disadvantage. Although Raeford now 

objects to SOMMA’s conduct on moral grounds, the manner in which SOMMA 

obtained its contract with the NYCDOE had little if any relevance to the supply 

contract between Raeford and SOMMA. SOMMA’s failure to disclose the nature of 

its relationship with Mr. Goldstein does not render the contract between SOMMA 

and Raeford substantively or procedurally unconscionable.

The petitioners also contend that evidence of SOMMA’s bribery scheme 

establishes an illegality defense, arguing that “SOMMA’s bribery of government 

officials directly relating to the chicken products in the Original Proceeding bars 

SOMMA’s recovery against [the petitioners] for lost profits from the relationship 

SOMMA earned through bribery.” The petitioners seem to loosely use the term 

“illegality” to mean not only illegality of contract—which is a defense to a claim for 

breach of an illegal contract—but also the “unlawful acts rule,” that “no action may 

be predicated upon an admittedly unlawful act of the party asserting it.” Denson v. 
–32–

Dallas Cnty. Credit Union, 262 S.W.3d 846, 855 (Tex. App.—Dallas 2008, no pet.).

There was nothing illegal about the supply contract between Raeford and SOMMA, 

so “illegality of contract” provides no defense to SOMMA’s claims based on that 

contract. See id. at 852 (noting that a “contract that could have been performed in a 

legal manner will not be declared void, illegal, and unenforceable merely because it 

may have been performed in an illegal manner or because illegal acts were 

committed in carrying it out.”). 

The petitioners seem to rely more on our opinion in Denson, where we held 

that the “unlawful acts rule” barred tort claims arising out of an illegal contract. See 

id. at 855. But in 2014, the supreme court held that “the comparative responsibility 

scheme under Chapter 33 of the Texas Civil Practice and Remedies Code abrogated 

the unlawful acts doctrine.” Boerjan v. Rodriguez, 436 S.W.3d 307, 310 (Tex. 2014) 

(citing Dugger v. Arredondo, 408 S.W.3d 825 (Tex. 2013)). Thus, proof of 

SOMMA’s unlawful bribery scheme does not establish a meritorious illegality

defense that would entitle the petitioners to a judgment absent any contrary evidence.

Because the petitioners failed to provide prima facie proof of a meritorious 

defense to SOMMA’s claims, the trial court did not abuse its discretion by 

dismissing the bill of review petition.
–33–

CONCLUSION

To summarize our disposition:

 We reverse and render judgment that SOMMA take nothing on its 

negligence claims against Fieldale and Ozark;

 We reverse and render judgment that Raeford take nothing on its breach 

of contract claims against Fieldale and Ozark;

 We reverse and render judgment awarding Raeford the contract 

damages the jury found SOMMA owed on Raeford’s claim; and as a 

result,

 We reverse the judgment denying Raeford’s attorney’s fees on its 

contract claim against SOMMA and remand so the trial court can 

determine the reasonable fees Raeford is entitled to on that claim.

In all other respects, we affirm the trial court’s judgments.

221231f.p05

/Cory L. Carlyle//

CORY L. CARLYLE

JUSTICE
–34–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

HOUSE OF RAEFORD FARMS, 

INC., OZARK MOUNTAIN 

POULTRY, INC. AND FIELDALE 

FARMS CORPORATION, 

Appellants

No. 05-22-01231-CV V.

SOMMA FOOD GROUP, LLC., 

Appellee

On Appeal from the 14th Judicial 

District Court, Dallas County, Texas

Trial Court Cause Nos. DC-17-

00698, DC-21-17119.

Opinion delivered by Justice Carlyle. 

Justices Smith and Kennedy 

participating.

In accordance with this Court’s opinion of this date, the judgment of the trial 

court in cause No. DC-17-00698 is AFFIRMED in part and REVERSED in part. 

We REVERSE that portion of the trial court’s judgment that awards damages to 

SOMMA Food Group, LLC on its negligence claims against Ozark Mountain 

Poultry, Inc. and Fieldale Farms Corporation, and we RENDER judgment that 

SOMMA Food Group LLC take nothing on those claims. We REVERSE that 

portion of the trial court’s judgment that awards damages to House of Raeford 

Farms, Inc. on its claims for breach of contract against Ozark Mountain Poultry, 

Inc. and Fieldale Farms Corporation, and we RENDER judgment that House of 

Raeford Farms, Inc. take nothing on those claims. We REVERSE that portion of 

the trial court’s judgment that denies House of Raeford, Inc. damages on its breach 

of contract claim against SOMMA Food Group, LLC, and we RENDER judgment 

that House of Raeford Farms, Inc. shall recover from SOMMA Food Group, LLC 

actual damages for breach of contract of $505,841.05, along with prejudgment 

interest on those damages to be determined by the trial court on remand. We 

REVERSE that portion of the trial court’s judgment that denies House of Raeford 

Farms, Inc.’s request for attorney’s fees from SOMMA Food Group, LLC, and we 

RENDER judgment that House of Raeford, Inc. shall recover from SOMMA Food 

Group, LLC its reasonable and necessary attorney’s fees incurred in pursuing its 
–35–

breach of contract claim against SOMMA Food Group, LLC, which shall be 

determined by the trial court on remand. In all other respects, the trial court’s 

judgment in cause No. DC-17-00698 is AFFIRMED.

In accordance with this Court’s opinion of this date, the judgment of the trial 

court in cause No. DC-21-17119 is AFFIRMED.

We REMAND this cause to the trial court for further proceedings consistent 

with this opinion and judgment.

It is ORDERED that Ozark Mountain Poultry, Inc. and Fieldale Farms 

Corporation recover their costs of this appeal from House of Raeford Farms, Inc. 

and SOMMA Food Group, LLC.

Judgment entered this 2

nd day of February, 2024.