Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Jeffery Bush owned an auto parts store, which he decided to sell. Jason Feuerberg was interested and had $30,000 to invest. Bush and Feuerberg signed an agreement whereby Feuerberg paid Bush $30,000 and, in return, Bush was to transfer 1,500 shares to him. Thereafter, Feuerberg was to make monthly payments for additional shares. Feuerberg also became the store’s manager. Bush became dissatisfied with Feuerberg’s management of the store, and six months after the parties had reached their agreement, Feuerberg quit his job. Feuerberg made a written demand for the return of the money paid for the purchase of the stock. Bush refused and filed suit against Feuerberg seeking damages for Feuerberg’s failure to purchase the additional shares. Feuerberg filed a counterclaim alleging Bush breached the contract by failing to transfer the shares to him. At trial, the jury found that both Bush and Feuerberg breached the agreement. It awarded $70,500 to Bush and zero damages to Feuerberg. Feuerberg appealed. HOLDING:The court reverses the trial court’s $70,500 damages award and $3,525 award of prejudgment interest in favor of Bush; renders judgment that Bush take nothing on his breach of contract claim; and remands the award of attorney’s fees to the trial court. Feuerberg argues that the evidence does not support the jury finding that Feuerberg’s breach (in failing to purchase an additional 3,600 shares as described in the parties’ agreement) was not excused by Bush’s failure to transfer the initial 1,500 shares paid for by Feuerberg. But the court points out that Feuerberg did not object to the submission of a question asking the jury to interpret the provision of the agreement that required Feuerberg to buy the additional 3,600 shares. Because Feuerberg did not object to the question asking whether he was in breach of the Agreement, the court holds that he has not preserved this complaint for review. Moving on to Feuerberg’s next issue on appeal, the court notes that the jury found that Bush’s failure to transfer the initial 1,500 shares to Feuerberg was not a material obligation that would, in turn, excuse Feuerberg’s failure to pay for the additional 3,600 shares. Feuerberg contends the evidence is legally and factually insufficient to support the jury’s finding that Bush did not fail to comply with a material obligation thereby excusing his breach. The court agrees and holds that Feuerberg suffered a great consequence by Bush’s failure to transfer the initial 1,500 shares Feuerberg paid for: Feuerberg did not become a shareholder. The court holds that the transfer of shares was, as a matter of law, a material obligation under the agreement. But for the promise to transfer the shares, Feuerberg would not have paid Bush $30,000. The court holds that the agreement itself shows that Bush’s obligation to transfer the shares was a material obligation. Finally, Feuerberg contends the evidence is legally and factually insufficient to support the award of zero damages. The court disagrees and points out that when Feuerberg sent a written demand to Bush for the return of his money, the stock had no value. Thus, when Feuerberg first made an attempt to sell the stock he thought he owned, its value was worthless and he therefore was entitled to no damages for Bush’s failure to transfer the stock at that time. OPINION:Wright, J.; Wright, Moseley, and Lang, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.