Because he believed that Checker Bag had misrepresented to him that the 48PET bag would perform as well as the other bags he had used, Washington filed this suit against Checker Bag. He alleged that Checker Bag had violated the DTPA and had breached its contract with him by failing to supply bags that lived up to the representations made to him by Wall. After an eight day trial, the jury returned a verdict favoring Washington on both his DTPA and breach of contract theories, and awarded damages totaling $1,396,000 on his DTPA claim and $760,100 on his contract claim, plus up to $130,000 in attorney's fees. This appeal followed.
Checker Bag challenges the sufficiency of the evidence to support the jury's findings on liability, damages, attorney's fees, and the jury's failure to award it any damages on its counter-claim.
Washington attempted to determine what caused the problem in Country Fair's product. He closely examined and monitored the production equipment and facility. He “grilled” the Houston personnel to determine if the candy had been properly stored. In each instance, according to Washington, he was unable to find the source of the problem. His focus turned to the bag in which the cotton candy was packaged when he received a return from a Blockbuster customer which contained 71 bags of hardened candy and one bag that was “full and pretty.” Upon investigating, Washington realized that the one good bag was packed in the pre-48PET bag. He immediately switched bags, ordering a substitute bag from Checker Bag.
Checker Bag contends Washington's evidence showing Checker Bag represented that the 48PET bag had the same moisture barrier as the model 150 is outweighed by other evidence. Both Washington and Mike Tawater, Country Fair's production manager, testified directly that Wall assured them that the 48PET bag would provide the same protection as the bags they had used earlier. Checker Bag does not point to any evidence which directly contradicts this testimony, be it testimony by Wall or otherwise. Because Checker Bag has not directed us to any evidence which would overwhelm the testimony that Wall affirmatively assured Washington and Tawater that the 48PET bag would have the same characteristics as the prior bags, the jury's verdict is not so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Ellis, 971 S.W.2d at 406-07; Cain, 709 S.W.2d at 176. Thus, the evidence is factually sufficient to support the jury's finding of a DTPA laundry list violation.