Motion for New Trial in Katie's Seafood, LLC a/k/a Katie's Seafood Market vs. STI Holding Company, Inc. d/b/a STI Group, Et Al| Trellis.Law

On February 05, 2019 a Motion-Secondary was filed involving a dispute between Katie'S Seafood, Llc, and Caudle, Norman, Parsley, James, Purkey, Richard, Jr., Semco Manufacturing Company, Inc., Semco Semcold, Llc, Southeast Texas Industries, Inc., Spence, Paul T., Sti Holding Company, Inc., for Contract - Debt - Commercial/Consumer in the District Court of Galveston County.

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Filed: 9/11/2023 7:36 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 79431752
By: Shailja Dixit
9/12/2023 8:07 AM

NO. 19-CV-0191

KATIE’S SEAFOOD, LLC a/k/a § IN THE DISTRICT COURT OF
KATIE’S SEAFOOD MARKET §
§
v. §
§
STI HOLDING COMPANY, INC. d/b/a § GALVESTON COUNTY, TEXAS
STI GROUP; SOUTHEAST TEXAS §
INDUSTRIES, INC. d/b/a SEMCO §
MANUFACTURING d/b/a SEMCO §
ICE; SEMCO MANUFACTURING §
COMPANY, INC.; and SEMCO §
SEMCOLD, LLC, et al § 56th JUDICIAL DISTRICT

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS
SEMCO-SEMCOLD, LLC, SEMCO MANUFACTURING COMPANY, INC.
AND NORMAN CAUDLE’S MOTION FOR NEW TRIAL

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Plaintiff Katie’s Seafood, LLC a/k/a Katie’s Seafood Market and files its

Response in Opposition to Defendants Semco-Semcold, LLC, Semco Manufacturing Company,

Inc. and Norman Caudle’s Motion for New Trial and for such would respectfully show unto the

Court the following:

Procedural History

1. On June 20, 2023, this case was called to trial. Plaintiff Katie’s Seafood, LLC a/k/a

Katie’s Seafood Market (“Katie’s”) and Defendants Semco Manufacturing Company, Inc.,

SEMCO SEMCOLD, LLC, and Norman Caudle (“Defendants”) appeared by and through their

attorneys of record and announced ready for trial, and a jury of twelve qualified jurors was duly

selected and empaneled and sworn to try the case. The jury heard the evidence and arguments of

counsel, and the case was submitted to the jury on June 29, 2023. Thereafter, on June 29, 2023,

the jury’s verdict was returned in open court. The jury rendered a unanimous verdict in favor of

Katie’s, and the verdict was received and filed by the Court.

1
2. On July 6, 2023, Katie’s moved for entry on the judgment. Defendants filed a

response in opposition to the motion for entry of judgment on July 12, 2023. The Court heard

arguments on July 13, 2023, and entered final judgment on July 21, 2023.

3. Thereafter, Defendants filed their Motion for New Trial (“Defendants’ Motion”)

on August 21, 2023. Defendants’ Motion is a point-by-point rehash of Defendants’ opposition to

entry of judgment. Defendants’ Motion presents no new arguments, nor points to any newly

discovered evidence; instead, it simply restates the same arguments made during trial (both for

directed verdict and in closing argument to the jury), and it should be denied.

Response in Opposition to Defendants’ Points of Error

4. Defendants’ Points of Error I, V, VI, VII and VIII are no basis for a new trial.

Defendants claim there is no evidence or the evidence adduced at trial was factually insufficient

to support the jury’s response to Questions 2-15 and 19. On June 20, 2023, the case was called to

trial and a jury empaneled. The jury heard five days of testimony and argument, including the

testimony of seven witnesses and admission of nearly 50 exhibits on all topics. Despite this,

Defendants’ points of error I, V, VI, VII and VIII all suggest there was no evidence, or factually

insufficient evidence, to support the jury findings for Questions 2-15 and 19.1 There was ample

evidence of Defendants’ liability on all counts and Plaintiffs’ damages presented over the course

of the trial to support the jury findings, and Defendants’ Motion should be denied.

5. Defendants do not provide the standard for review for legal and factual sufficiency

challenges and, for the most part, do not even attempt to apply those standards to the facts in this

case. (When discussing the DTPA and fraud questions, Defendants do make some attempt to

1
Defendants do not appear to object to the jury’s findings in Questions 1, 16, 17 or 18, thus accepting that there was
a contract between Katie’s and Defendant Semco Manufacturing Company, Inc. (Question 1) and that both Semco
Manufacturing Company, Inc. and Semco Semcold, LLC were negligent (Question 18).
2
discuss the facts of the case but grossly mischaracterize the record when doing so.) Defendants

also fail to identify the elements of each specific claim for which they contend the evidence is

lacking. Defendants’ Motion fails to cite a single rule, law, or case in support of their objections.

It is not the Court’s duty to review the record, research the law, and fashion a legal argument for

Defendants when they have failed to do so.2 Briefing waiver occurs when a party fails to make

proper citations to authority or to the record or provide any substantive legal analysis.3

6. Evidence is legally sufficient if it would enable reasonable and fair-minded people

to reach the verdict under review.4 When reviewing for factual sufficiency, the Court considers

and weighs all of the pertinent evidence and will set the finding aside only if “the credible evidence

supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence,

that the answer should be set aside and a new trial ordered.”5 Whether reviewing the evidence for

legal or for factual sufficiency, the Court defers to the jury’s reasonable credibility determinations.6

7. The record shows that Semco Manufacturing Company, Inc. breached its

agreement with Katie’s (Question 2). The elements of a breach of contract claim are (1) the

existence of a valid contract between plaintiff and defendant, (2) the plaintiff's performance or

tender of performance, (3) the defendant's breach of the contract, and (4) the plaintiff's damage as

a result of the breach.7 The jury determined there was a valid contract (Question No. 1), and

Defendants have not challenged that finding. Evidence was presented regarding Katie’s

performance under the contract and payment of large sums of money for the ice plant construction

and installation. The jury heard from Katie’s corporate representative (Derrick Gutierrez), hired

2
Canton-Carter v. Baylor Coll. Of Med., 271 S.W.3d 928, 931-32 (Tex. App. – Houston [14th Dist.] 2008, no pet.).
3
Guajardo v. Hitt, 562 S.W.3d 768, 781 (Tex. App. – Houston [14th Dist.] 2018, pet. denied).
4
City of Keller v. Wilson, 168 S.W.3d 802,827 (Tex. 2005).
5
Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 615 (Tex. 2016).
6
See City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005); Noble Drilling (US) LLC v. Deaver, 596 S.W.3d
482, 487 (Tex. App. – Houston [14th Dist.] 2020, no pet.).
7
Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App. – Houston [1st Dist.] 2002, pet. denied).
3
construction company representative (Matt McDaniel), and an ice plant expert (Lee Green)

regarding the multiple breaches of the contract and the damage it caused Katie’s, including

increased construction and installation costs, repairs, down time, and the continued need to

purchase ice from outside vendors. Evidence, therefore, supported the jury’s award of damages

related to that breach (Question 3).

8. Similarly, the record supports the finding that Semco Manufacturing Company, Inc.

breached its warranties to Katie’s (Question 4) and the related award of damages (Question 5).

Evidence was presented on each element for a breach of express warranty claim, including (1) the

defendant sold services to the plaintiff; (2) the defendant made a representation to the plaintiff

about the characteristics of the services by affirmation of fact, promise, or by description; (3) the

representation became part of the basis of the bargain; (4) the defendant breached the warranty;

(5) the plaintiff notified the defendant of the breach; and (6) the plaintiff suffered injury.8

Sufficient evidence was also presented on the breach of implied warranty elements as well.

9. The record further reflects that both Defendants Semco Manufacturing Company,

Inc. and Semco Semcold, LLC violated the Texas Deceptive Trade Practices Act (Question 6) and

that Katie’s is entitled to reasonable damages regarding same (Question 7). That violation was

conducted knowingly and/or intentionally by both Defendants (Question 8), resulting in an

additional award of damages (Question 9). Defendants’ tortured reimagining of the timeline and

facts of the case related to these questions is not supported by the record and does not support a

motion for new trial.

10. Based on the jury’s findings regarding breach of contract, breach of warranty, and

violation of the DTPA, imposition of attorney’s fees was proper (Question 10), and Defendants

8
See Paragon Gen. Contractors, Inc. v. Larco Constr., 227 S.W.3d 876, 886 (Tex. App. – Dallas 2007, no pet.).
4
made no challenge to the evidence presented regarding same – not questioning the fees or their

reasonable or necessary amounts.

11. Ample evidence was shown relating to Defendant Norman Caudle and his treatment

and use of the two Defendant entities to support the jury’s findings in Questions 11-13.

Furthermore, despite Defendant Caudle’s protestations that he did nothing in his “individual”

capacity to support the jury’s findings on fraud (Question 14), the jury heard ample evidence of

his fraudulent behavior, including the undisputed timeline that, after Mr. Caudle was terminated

from employment with Semco Manufacturing Company, Inc. and before his formation of Semco

Semcold, LLC (and its subsequent purchase of Semco Manufacturing Company, Inc.), Mr. Caudle,

in his individual capacity, traveled to Galveston and made numerous false representations to

Katie’s with the intent Katie’s rely upon them. Defendant Caudle’s individual fraud is crystal

clear in the record, and the jury’s award of damages for same in Question 15 is fully supported.

12. Finally, the jury heard, and the record supports the award of, damages based on

Defendants’ Semco Manufacturing Company, Inc. and Semco Semcold, LLC’s negligence in

Question 19. Katie’s clearly lost the use of its property during the delayed installation and

numerous downtimes occasioned with repairs of the ice plant as testified to by Katie’s corporate

representative and documented in numerous exhibits submitted to the jury.

13. Defendants failed to show that after all the evidence was reviewed, the evidence

supporting the jury’s findings was so weak, or so against the great weight and preponderance of

the evidence, that it was clearly wrong and unjust. Therefore, Defendants’ Motion should be

denied.

14. Defendants’ Point of Error II is no basis for a new trial. Defendants’ point of

error II revolves around the issue of offset and/or credit. Specifically, Defendants complain that

5
the Court excluded evidence related to Katie’s settlement with third parties. Defendants, however,

did not properly preserve this argument with an offer of proof. Tex. R. Evid. 103(a)(2). The

primary purpose of an offer of proof is to include excluded evidence in the record so an appellate

court can later determine whether the trial court erred in excluding it.9 Another purpose of an offer

of proof is to permit the trial court to reconsider its ruling in light of the actual evidence.10

Defendants completely failed to comply with Rule 10311, and, therefore, no error related to the

excluded settlement document has been properly preserved.

15. Additionally, if necessary, it was Defendants’ burden to submit a jury charge

question related to offset, and they did not (nor did they even object to the omission of an offset

question) – waiving any potential error – nor did Defendants properly petition this Court for

application of settlement credit, thus failing to satisfy their burden to prove a right to any credit.

No new trial should be granted based upon Defendants’ point of error II.

16. Defendants’ Point of Error III is no basis for a new trial. Defendants’ point of

error III regards the expert testimony of Lee Green, and it does not support granting a new trial.

Defendants did not object to Mr. Green at the time he was designated, or at any time before trial

began. In fact, Defendants allowed Mr. Green to be called to the stand, then proceeded to fully

cross examine him in front of the jury before moving to strike his opinions. Defendants’ objections

to the timeliness or sufficiency of Mr. Green’s expert designation were therefore completely

waived.

9
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006).
10
Ludlow v. DeBerry, 959 S.W.2d 265, 270 (Tex. App. – Houston [14th Dist.] 1997, no writ).
11
Tex. R. Evid. 103.
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17. Evidentiary rulings are committed to the trial court's sound discretion.12

Specifically, the admissibility of expert testimony is governed by Rule of Evidence 702.13 Expert

testimony is admissible if (1) the expert is qualified and (2) the testimony is relevant and based on

a reliable foundation.14 Substantial evidence was heard regarding Mr. Lee’s qualifications, and

his testimony regarding the ice plant was relevant and based upon a reliable foundation. The Court

did not abuse its discretion in admitting Mr. Green’s testimony at trial.

18. Defendants’ Point of Error IV is no basis for a new trial. It is unclear what

Defendants’ point of error IV is. The judgment is properly entered as regards the findings of

individual liability against Defendants and the joint and several liability based upon findings of

alter-ego and vicarious liability. Therefore, any complaints about the award of damages are

ineffective as the judgment is based correctly upon the jury findings of liability.

19. Defendants’ Point of Error VII is no basis for a new trial. Defendants’ point of

error VII regarding the jury findings on alter ego suggests that it is not evidence based but appears

to actually relate to the jury questions submitted. The evidence was both legally and factually

sufficient to support the jury’s findings. Any complaint regarding the submitted jury questions

was not properly preserved, as Defendants failed to present jury charge questions with alternate

wording. In a jury trial, the trial court shall submit “such instructions and definitions as shall be

proper to enable the jury to render a verdict.”15 A valid instruction (1) assists the jury, (2)

accurately states the law, and (3) finds support in the pleadings and evidence.16 The trial court has

considerable discretion in deciding whether a proposed instruction is necessary and proper to

12
Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35,43 (Tex. 1998)(quoting City of Brownsville v. Alvarado,
897 S.W.2d 750, 753 (Tex. 1995)).
13
Tex. R. Evid. 702.
14
Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006).
15
TEX. R. CIV. P. 277.
16
Union Pac. R.R. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002).
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submit to the jury.17 A trial court’s decision on which instructions to submit to the jury will not

be disturbed absent an abuse of discretion.18

Conclusion & Prayer

WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that upon

hearing, the Court deny Defendants Semco-Semcold, LLC, Semco Manufacturing Company, Inc.

and Norman Caudle’s Motion for New Trial in all things.

Respectfully submitted,

BEETON SHABOT, LLC

By: /s/ S. Benjamin Shabot
S. Benjamin Shabot
State Bar #: 24055007
(409) 220-1865 Direct Line
bshabot@beetonshabot.com
Timothy A. Beeton
State Bar #: 02043600
(409) 765-9558 Direct Line
tbeeton@beetonshabot.com
2200 Market Street, Suite 801
Galveston, Texas 77550
(409) 766-1661 Main Tel.
(409) 750-8372 Fax

ATTORNEYS FOR PLAINTIFF
KATIE’S SEAFOOD, LLC a/k/a
KATIE’S SEAFOOD MARKET

17
State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 451-52 (Tex. 1997); City of The Colony v. N. Tex. Mun. Water Dist.,
272 S.W.3d 699, 746 (Tex. App. – Fort Worth 2008, pet. dism’d) (“Indeed, a trial court is afforded even more
discretion when submitting instructions than when submitting questions.”)(citing Wal-Mart Stores, Inc. v. Middleton,
982 S.W.2d 468, 470 (Tex. App. – San Antonio 1998, pet. denied)).
18
McCarthy v. Wani Venture, A.S., 251 S.W.3d 573, 584 (Tex. App. – Houston [1st Dist.] 2007, pet. denied).
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CERTIFICATE OF SERVICE

I certify that Plaintiff’s Response in Opposition to Defendants Semco-Semcold, LLC,
Semco Manufacturing Company, Inc. and Norman Caudle’s Motion for New Trial Motion has
been electronically served upon all counsel on the electronic service list for this case, with a
courtesy copy to counsel via email, on September 11, 2023.

/s/ S. Benjamin Shabot
S. Benjamin Shabot

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Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Lisa Roberds on behalf of Benjy Shabot
Bar No. 24055007
lroberds@beetonshabot.com
Envelope ID: 79431752
Filing Code Description: Response
Filing Description: Pltf Resp in Opp to Defs Mtn for New Trial
Status as of 9/12/2023 8:07 AM CST

Associated Case Party: Katie's Seafood, LLC