Janice E. Fry and Timothy J. Fry v. Farm and Ranch Healthcare Inc. and Bobby Gene Stewart Jr., a/k/a B.J. Stewart--Appeal from 108th District Court of Potter County

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Laws-info.com » Cases » Texas » 7th District Court of Appeals » 2007 » Janice E. Fry and Timothy J. Fry v. Farm and Ranch Healthcare Inc. and Bobby Gene Stewart Jr., a/k/a B.J. Stewart--Appeal from 108th District Court of Potter County

State: Texas

Court: Texas Northern District Court

Docket No: 07-05-00221-CV

Case Date: 12/13/2007

Plaintiff: Janice E. Fry and Timothy J. Fry

Defendant: Farm and Ranch Healthcare Inc. and Bobby Gene Stewart Jr., a/k/a B.J. Stewart--Appeal from 108th Di

Preview:NO. 07-05-0221-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B DECEMBER 13, 2007 ______________________________ JANICE E. FRY and TIMOTHY J. FRY, Appellants v. FARM & RANCH HEALTHCARE, INC. and BOBBY GENE STEWART, JR. a/k/a B. J. STEWART, Appellees _________________________________ FROM THE 108TH DISTRICT COURT OF POTTER COUNTY; NO. 90,846-E; HON. ABE LOPEZ, PRESIDING _______________________________ Memorandum Opinion _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Appellants, Janice E. Fry and Timothy J. Fry (collectively referred to as the Frys) appeal from a final judgment denying them relief against Farm & Ranch Healthcare, Inc. (Farm) and Bobby Gene Stewart, Jr. a/k/a B. J. Stewart. The final judgment arose from two partial summary judgments and a directed verdict entered by the trial court prior to

trial.1

The Frys contend that the trial court erred in granting the partial summary

judgments and directing a verdict on the issue of damages since evidence of damages existed. We reverse and remand the judgment in part and affirm in part. Background The Frys sold insurance products for Farm and allegedly were paid commissions from their own sales and the sales of agents they recruited. Eventually, the relationship between the parties soured, and Farm purportedly stopped paying the Frys any commissions. This resulted in a suit against Farm and Stewart for, among other things, fraud and breach of contract.2 The latter claim was disposed of through summary judgment, as was one of the fraud allegations. Thereafter, and shortly before trial began, Farm filed a motion in limine contending that any evidence of damages pertaining to the remaining fraud claim should be excluded because the Frys failed to disclose it in response to discovery requests. The court heard and granted the motion. At that point, Farm moved for the aforementioned directed verdict on the remaining fraud claim because the Frys had no evidence of damages. The trial court granted that motion as well, severed the remaining causes from the suit, and entered a final judgment.3

The Frys do not question on appeal whether an oral m otion for directed verdict prior to the beginning of trial was an appropriate vehicle through which to dispose of the claim . The causes of action other than fraud and breached contract are not at issue here. They were either relinquished below or severed into another cause. In granting the directed verdict, we conclude that the trial court decided to exclude, via the m otion in lim ine, all evidence of dam ages. If this was not so, then the Frys would have had the opportunity to present such evidence to the jury. So, because they did not, the trial court m ust have decided to exclude that evidence when granting the lim ine m otion. See Owens-Corning Fiberglas Corp. v. Malone, 916 S.W .2d 551, 557 (Tex.App.

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