This section contains the nature of the case and procedural background.

In 2010, Bartush (D) required its production facilities to maintain a constant temperature no higher than thirty-eight degrees. Cimco (P) sent D an offer letter with three quoted options. The offer letter did not reference a particular temperature range. D orally selected the most expensive of the three options, confirming the selection via email. After installation, the unit failed to perform. When D discovered the problem, it had already paid P $306,758 on the contract but still owed $113,400. D withheld further payment and contacted an independent refrigeration engineer. The engineer recommended a warm-glycol defrost unit, and D contracted with Jax Refrigeration, Inc. to install the unit at a cost of $168,079. After the warm-glycol defrost unit was installed, the system was able to maintain the target temperature of thirty-five degrees. P sued D to recover the balance owed on the contract. D counterclaimed for breach of contract, seeking damages for, among other things, the costs associated with the warm-glycol defrost unit. P denied that it had made any guarantee regarding the equipment's capacity to maintain a specific temperature. The jury returned the following: 'YES' to Question 1, which asked whether D failed to comply with the agreement; 'YES' to Question 2, which asked whether P failed to comply with the agreement; 'CIMCO' to Question 3, which asked who failed to comply with the agreement first; and 'NO' to Question 4, which asked whether D's failure to comply was excused. The jury awarded D $168,079 in damages plus $215,000 in trial and conditional appellate attorney's fees. The jury also awarded P $113,400. The court rendered judgment in d's favor for $168,079 in damages, plus pre-and post-judgment interest, costs, and attorney's fees. P appealed. The court of appeals reversed and remanded to the trial court for entry of a judgment that D take nothing and that P recover $113,400 in damages, plus interest and costs. Both parties filed petitions for review.

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