COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-07-002-CV
BROCK INDEPENDENT SCHOOL APPELLANT DISTRICT V.
TONY BRIONES D/B/A WEST TEXAS APPELLEES CONCRETE AND METAL BUILDINGS, SAMUEL TREVINO D/B/A SAM’S CONSTRUCTION ------------
FROM THE 415TH DISTRICT COURT OF PARKER COUNTY
------------
MEMORANDUM OPINION 1
I. INTRODUCTION
Appellant Brock Independent School District (“BISD”) sued Appellees
Tony Briones d/b/a West Texas Concrete and Metal Buildings (“Briones”) and
Samuel Trevino d/b/a Sam’s Construction (“Trevino”) (collectively “Appellees”)
1 See T EX. R. A PP. P. 47.4. for damages resulting from Appellees’ installation of a roof in connection with
a school construction project. A jury awarded BISD $519,771.00. In five
issues, BISD argues that the trial court erred by submitting two instructions,
that the jury’s negligence apportionment finding and “No” answer to the
contract-compliance question are against the great weight and preponderance
of the evidence, and that the evidence is factually insufficient to support the
jury’s damages finding. We will affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
BISD sought to build a new elementary and middle school in late 2001.
It hired D.S.A., Inc. as a construction manager to assist with the bidding
process and oversee the project. BISD hired Stuckey Architects, Inc. as the
architect. Stuckey prepared a project manual for BISD setting forth the general
and supplemental conditions and specifications for the project and instructions
for placing bids on the project. BISD ultimately awarded each phase of the
project to a different subcontractor, who contracted directly with BISD, the
owner, as a trade contractor.
Burton Sandefur, a project manager for DSA, knew Briones from previous
jobs and contacted him about the BISD project. Briones, who performs
concrete and metal building construction, subsequently signed a contract with
BISD in March 2002 to furnish equipment and labor to erect “all pre-engineered
2 metal building components and all structural steel,” which included building new
metal buildings and laying a new roof on an existing gymnasium. Briones’s
crew installed the roof overlay on the old gymnasium, but Briones
subcontracted much of the rest of the work to Trevino, another contractor who
performs metal building erection. The project manual called for a standing seam
metal roof, and it required the manufacturer, RollCOM, to warranty the roof for
weathertightness. BISD did not select RollCOM to furnish the metal roof until
after BISD had entered into its contract with Briones.
Trevino’s crew began constructing their portion of the project sometime
between July and September 2002. Tom Weaver was the job superintendent
at the time, followed by Drew Scott and Rowdy Hutchins. According to
Sandefur, the superintendent was responsible for overall coordination and had
no authority to change the project’s specifications or deviate from the contract
documents. There was evidence, however, that Weaver was “in charge” at the
project site. Although the roof was supposed to be installed by laying and
securing the panels from one end of the roof to the other, Weaver erroneously
instructed Trevino’s crew to install the roof by setting the panels at both ends
of the roof and working towards the middle.
Errors in the installation of the roof installed by Trevino manifested
sometime in the Spring of 2003 when DSA sought to have RollCOM issue its
3 warranty. RollCOM declined to issue the weathertightness warranty after its
representatives inspected the roof and discovered that the roof did not fully
comply with RollCOM’s specifications. RollCOM inspected the roof a second
time and once again found errors in its installation. BISD retained Exterior
Consulting Innovations, Inc. (“ECI”) to independently evaluate the roof. ECI
counted 115 leaks and opined that the roof had not been installed in
accordance with the specifications or the manufacturer’s installation
instructions. Sandefur acknowledged that the plans provided to the trade
contractors in the bidding process did not include the RollCOM installation
instructions, and Frank Trevino, Samuel Trevino’s son, recounted that the “shop
drawings” for the roof that Trevino’s crew had were not as detailed as the
RollCOM instruction manual, which he saw for the first time just two days
before testifying at trial.
DSA gave Briones an opportunity to remedy the defects in the roof, but
Briones was ultimately unsuccessful. In March 2004, BISD declared Briones in
breach of his contract and terminated his right to complete the project. ECI
opined that the roof was beyond repair and that BISD would have to install a
new roof to correct the problems. Stuckey opined that a new roof or overlaying
the roof with another roof layer would be needed to cure the problems.
4 BISD sued Briones and Trevino for breach of contract, breach of
warranty, violations of the Deceptive Trade Practices Act (“DTPA”), and
negligence. Briones and Trevino sued DSA, but the trial court granted DSA’s
no evidence motions for summary judgment as to both Briones’s and Trevino’s
claims. In its charge to the jury, the trial court included an instruction that “the
actions of DSA, Inc. are those of Brock Independent School District.” The jury
found that BISD, Briones, and Trevino were all negligent, apportioning 85% of
the negligence to BISD, 10% of the negligence to Briones, and 5% of the
negligence to Trevino. The jury answered “No” to the DTPA question and “No”
to the question asking whether Briones failed to comply with his contract with
BISD. The jury, however, answered “Yes” to the question asking whether
Briones failed to comply with a warranty, and it awarded BISD damages in the
amount of $519,771.00. BISD filed a motion for new trial, which the trial
court denied. This appeal followed.
III. S UFFICIENCY A RGUMENTS
In its third issue, BISD argues that the jury’s damages finding of
$519,771.00 is “not supported by the evidence” because it was “inadequate,
contrary to the evidence, and had no rational basis.” 2 In its fifth issue, BISD
2 Although BISD does not specifically state that the jury’s damages finding is “against the great weight and preponderance of the evidence” (like in its
5 argues that the jury’s “No” answer to the contract-compliance question is
against the great weight and preponderance of the evidence.
A. Standard of Review
When a party challenges the factual sufficiency of a finding on an issue
on which it had the burden of proof, it must demonstrate that the adverse
finding is against the great weight and preponderance of the evidence. Dow
Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). When reviewing an
issue asserting that a finding is “against the great weight and preponderance”
of the evidence, we must consider and weigh all of the evidence and set aside
the finding only if the evidence is so weak or the finding is so contrary to the
great weight and preponderance of the evidence as to be clearly wrong and
unjust. Id.; In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).
The trier of fact is the sole judge of the credibility of witnesses and the weight
second and fifth issues), the relief that BISD prays for (that the trial court’s judgment be reversed and that the case be remanded for a new trial) is consistent with the relief accompanying a determination that the evidence is factually insufficient to support a finding. See Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401–02 (Tex. 1981) (op. refusing writ n.r.e.) (stating that when a court of appeals sustains a point or issue because the evidence is factually insufficient, it must reverse the judgment of the trial court and remand for a new trial). We therefore construe BISD’s third issue as challenging the factual sufficiency of the evidence to support the finding.
6 to be given to their testimony. Golden Eagle Archery, Inc. v. Jackson, 116
S.W.3d 757, 761 (Tex. 2003).3
B. Damages Finding
The jury generally has broad discretion to award damages within the
range of evidence presented at trial. Gulf States Utils. Co. v. Low, 79 S.W.3d
561, 566 (Tex. 2002); Clary Corp. v. Smith, 949 S.W.2d 452, 467 (Tex.
App.—Fort Worth 1997, pet. denied). A jury may not, however, arbitrarily
assess an amount neither authorized nor supported by the evidence presented
at trial. Mills v. Jackson, 711 S.W.2d 427, 434 (Tex. App.—Fort Worth 1986,
no writ). In other words, a jury may not “pull figures out of a hat.” Neiman-
Marcus Group, Inc. v. Dworkin, 919 F.2d 368, 373 (5th Cir. 1990). When the
trial evidence supports a range of damages awards, as opposed to two distinct
options, an award within that range is an appropriate exercise of the jury’s
discretion, and the reviewing court is not permitted to speculate on how the
jury actually arrived at its award. Potter v. GMP, LLC, 141 S.W.3d 698, 704
3 BISD had the burden of proof on its breach of warranty claim. Considering our determination below that the entire damages award is attributable to BISD’s warranty claim, we conduct our factual sufficiency review of BISD’s damages argument pursuant to the standard of review articulated in Dow Chemical Co., not pursuant to the standard of review used when a party without the burden of proof challenges the factual sufficiency of the evidence to support a fact finding.
7 (Tex. App.—San Antonio 2004, pet dism’d); Mayberry v. Tex. Dep’t of Agric.,
948 S.W.2d 312, 317 (Tex. App.—Austin 1997, writ denied).
Here, BISD contends that it provided the jury with only two damages
calculations—$1,027,205.45 and $898,011.73—and that these amounts were
“based upon competitive bids that were submitted to complete the necessary
replacement and repair work” of the roof and building. But these were not the
only figures before the jury. A “Project Proposal Register,” one of BISD’s
exhibits at trial, lists prospective bidders for the roofing project and the amounts
of their respective bids. Three of the contractors submitted base bids in the
amounts of $493,314, $514,462, and $610,456. Moreover, a May 24, 2004
bid proposal submitted by Lon Smith Roofing contains a bid to overlay the roof
in the amount of $503,914 and a bid in the amount of $15,857 to “[r]emove
leak damaged ceiling panels in [the] gym, and furnish labor and materials to
install new panels as needed to match existing panels.” Although it is not
necessary that we determine how the jury arrived at its damages finding, the
combined total of Lon Smith Roofing’s bids equals the jury’s damages finding
of $519,771.00.
Additionally, included within the $1,027,205.45 figure are amounts for
“Construction Document preparation and construction administration (ECI
proposal)”—$93,680.00—and “Rental of portable buildings”— $304,875.00.
8 Included within the $898,011.73 figure are amounts for “Added cost for
weekend and out of school work to limit disturbance and
learning”—$182,565.00—and the $93,680 ECI proposal. The jury could have
concluded that these services were unnecessary, thus lowering each bid
amount by the total of the deemed unnecessary services, bringing the totals
that BISD claims were the only two damages calculations before the jury
significantly more in line with the bids contained in the “Project Proposal
Register.”
BISD argues that Briones’s failure to repair the roof was a continuing
breach of warranty such that the appropriate time to measure damages for
failure to repair is the time of trial. BISD’s argument is unpersuasive because
it provided written notice to Briones in March 2004 that it was declaring
Briones “in breach of contract” and that it was terminating Briones’s right to
complete the contract. Damages for Briones’s failure to repair cannot extend
to the time of trial because BISD expressly prohibited Briones from performing
any further repairs in March 2004.
Accordingly, BISD provided the jury with a range of damages awards, and
it was within the jury’s discretion to award BISD damages in the amount of
$519,771.00—an amount that was not arbitrarily assessed. See Potter, 141
S.W.3d at 704. Having considered and weighed all of the evidence, we hold
9 that the jury’s damages finding in the amount of $519,771.00 is not so weak
or so contrary to the great weight and preponderance of the evidence as to be
clearly wrong and unjust. See Dow Chem. Co., 46 S.W.3d at 242. We
overrule BISD’s third issue.
C. Compliance with Contract
The jury charge included the following question: “Did Tony Briones d/b/a
West Texas Concrete and Metal Buildings fail to comply with the contract dated
March 12, 2002, with Brock Independent School District?” The jury answered
“No.” BISD argues that the jury’s answer is against the great weight and
preponderance of the evidence because Briones agreed (1) to warrant his work
per the project’s plans and specifications and (2) to not hire a subcontractor to
perform work on the project without prior written approval.
The evidence shows that RollCOM declined to issue its weathertightness
warranty because the roof did not meet RollCOM’s installation specifications.
RollCOM observed after conducting its inspections that panels had not been
hand crimped, incorrect fasteners had been used, and sealants were insufficient
or missing, among other things. ECI also evaluated the roof and determined
that it had not been installed in accordance with RollCOM’s installation
instructions or the specifications. ECI discovered numerous leaks inside and
opined that a new roof would be needed to remedy the problems.
10 There was also evidence, however, that Weaver erroneously instructed
Trevino’s crew to install the roof by setting the panels at both ends of the roof
and to work towards the middle. Weaver told the contractors to use three
fasteners when installing the panels instead of four because they were short on
material. There was evidence that Weaver was “in charge” at the project site
and that he often informed the crews that the project was behind schedule,
urging them to speed up their respective work. He even had the contractors
work in the rain “several times.” Briones testified that he is used to following
a chain of command when at a project site, that a contractor cannot just say
“no” to a superintendent, and that a person might get fired for going over the
superintendent’s head on an issue. Sandefur agreed that if a contractor had a
question, then the person to see was the superintendent. Frank Trevino
testified that Weaver answered questions posed by the contractors and that
Weaver said there was no need for the contractors to talk to the architect
because that was his job.
RollCOM requires that its roofs be installed by certified installers, but
neither Briones’s crew nor Trevino’s crew had completed the certification prior
to installing the roof. When Briones requested time to get his crew certified,
Weaver told him that the project could not wait and that it needed to be
completed.
11 Sandefur acknowledged that the plans provided to the trade contractors
in the bidding process did not include the RollCOM installations instructions,
and Frank Trevino recounted that the “shop drawings” for the roof that
Trevino’s crew had were not as detailed as the RollCOM instruction manual,
which he saw for the first time just two days before testifying at trial.
Trevino’s crew experienced complications when they started working on
the project and roof: anchor bolts did not line up, purlins did not fit, the
concrete was off square by four to six inches, and red iron was rusted. Part of
the problems ultimately associated with the roof’s installation were attributable
to the seams not being tightly bundled against each other. Briones explained
that the mechanical roof seamer (used to crimp the metal panels together) was
12 not made available until the entire roof had been installed.4 Vice grips, or a
“hand crimper,” needed to install the roof were also not on the job.5
Regarding BISD’s prior approval of Briones’s intent to subcontract part of
the work to Trevino and his crew, Briones testified that he informed Sandefur
that he intended to use Trevino for part of the job before both his and Trevino’s
crew arrived at the project site. Sandefur said it was okay.
4 Sandefur partially explained the standing seam roof and mechanical seamer as follows:
You have – a standing seam roof has two – it’s like a U. And when you lay those panels down, there’s a clip that stands up that’s screwed to the purlin below it. The two panels are supposed to bump one another. This seam sealer is a mechanical – kind of like a can opener that sits over the top of it, if you will. And when you turn it on, it’s electric, and it rolls – it rolls the seam to where it rolls it over into itself which seals the roof. 5 Sandefur explained a hand crimper as follows:
In installing a standing seam roof, with the parts that come from the metal building component people, they send what they call a hand crimper, which looks like a big pair of vice grips, basically, with a – duck bill vice grips, if you will. And you – the instructions are as you’re installing those sheets, you line the sheets, set them over the – over the clips that are screwed to the purlins, and then you hand crimp the top metal and the bottom of [the] sheets that are approximately 30 foot or less. . . . Then, basically, you don’t need the seam sealer until you’re nearly through with the roof.
13 The jury assessed the credibility of witnesses and the weight to be given
to their testimony, which we may not disturb. Having considered and weighed
all of the evidence, we cannot say that the evidence supporting the jury’s “No”
answer to the contract compliance question is so weak or so contrary to the
great weight and preponderance of the evidence as to be clearly wrong and
unjust. See Dow Chem. Co., 46 S.W.3d at 242; see generally Fraser v.
Baybrook Bldg. Co., No. 01-02-00290-CV, 2003 WL 21357316, at *2–3 (Tex.
App.—Houston [1st Dist.] Jun. 12, 2003, pet. denied) (mem. op.) (holding
evidence factually sufficient to support finding that contractor complied with
agreement). Accordingly, we overrule BISD’s fifth issue.
IV. INSTRUCTIONS AND A PPORTIONMENT F INDING
In its first issue, BISD argues that the trial court erred by instructing the
jury that “the actions of DSA, Inc. are those of [BISD].” BISD contends that
the instruction was improper because it misstated the law of agency, removed
the question of agency from the jury, was not supported by the pleadings and
evidence, and constituted a comment on the weight of the evidence. Related
to its first issue, BISD argues in its second issue that, assuming the agency
instruction was proper, the jury’s 85% negligence apportionment to BISD
finding is against the great weight and preponderance of the evidence. In its
14 fourth issue, BISD argues that the trial court erred by including a damages
mitigation instruction because it was not supported by sufficient evidence.
A trial court must submit “such instructions and definitions as shall be
proper to enable the jury to render a verdict.” T EX. R. C IV. P. 277; Union Pac.
R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002). When an instruction
is given, the question on review is whether it is proper. M.N. Dannenbaum, Inc.
v. Brummerhop, 840 S.W.2d 624, 631 (Tex. App.—Houston [14th Dist.] 1992,
writ denied). An instruction is proper if it assists the jury, accurately states the
law, and finds support in the pleadings and evidence. See T EX. R. C IV. P. 278;
In re Commitment of Almaguer, 117 S.W.3d 500, 502 (Tex. App.—Beaumont
2003, pet. denied); Williams, 85 S.W.3d at 166. Rule 277 affords the trial
court considerable discretion in deciding what instructions are necessary and
proper. State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 451–52 (Tex. 1997).
Indeed, a trial court is afforded even more discretion when submitting
instructions than when submitting questions. Wal-Mart Stores, Inc. v.
Middleton, 982 S.W.2d 468, 470 (Tex. App.—San Antonio 1998, pet. denied).
Accordingly, we review the trial court’s submission of instructions for an abuse
of discretion. In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000); James v. Kloos,
75 S.W.3d 153, 162 (Tex. App.—Fort Worth 2002, no pet.). A trial court
abuses its discretion by acting arbitrarily, unreasonably, or without
15 consideration of guiding principles. Walker v. Gutierrez, 111 S.W.3d 56, 62
(Tex. 2003). We will not reverse a judgment based on charge error in the
absence of harm, which results if the error “probably caused the rendition of an
improper judgment” or “probably prevented the petitioner from properly
presenting the case to the appellate courts.” T EX. R. A PP. P. 44.1; Tex.
Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563,
580 (Tex. App.—Austin 2007, pet. denied).
A. “[T]he actions of DSA, Inc. are those of [BISD]” and Apportionment Finding
Appellees initially argue that BISD failed to preserve for review some of
its arguments complaining of the trial court’s instruction that “the actions of
DSA, Inc. are those of [BISD].” Because BISD only objected that the instruction
was a comment on the weight of the evidence and that there was no evidence
that BISD “ratified or approved DSA’s actions,” Appellees contend that BISD
waived its arguments that the instruction misstated the law of agency,
prevented the jury from deciding disputed fact questions, and did not conform
to the pleadings and evidence. We disagree.
The test for determining whether a party has preserved error in the jury
charge is whether the party timely and plainly made the trial court aware of the
complaint and obtained a ruling. State Dep’t of Highways v. Payne, 838
16 S.W.2d 235, 241 (Tex. 1992); see also T EX. R. C IV. P. 274 (requiring a party
objecting to a charge to point out distinctly the objectionable matter and the
grounds of the objection); T EX. R. A PP. P. 33.1(a). As explained below, each of
BISD’s arguments essentially complain that Weaver, DSA, or both were acting
outside the scope of his or its actual or apparent authority when engaging in the
negligent activity. Though not expressed as eloquently as its exhaustive
appellate arguments, BISD’s objection that it did not ratify or approve of DSA’s
actions comports with its arguments on appeal and timely and plainly made the
trial court aware of its complaint. We will therefore consider BISD’s argument
in its entirety.
BISD couches its four arguments challenging the trial court’s instruction
in different terms, but the ultimate contention underlying each argument is the
same— that it was error for the trial court to include the instruction because
Weaver’s or DSA’s negligent activity (the erroneous instructions explaining how
to install the roof) did not occur within the scope of Weaver’s or DSA’s actual
or apparent authority.6 BISD stresses that the contract documents clearly
6 Under BISD’s argument that the instruction misstates the law of agency, it contends that there was no evidence that Weaver was within his actual or apparent authority as either a BISD or DSA agent “for any alleged roof installation instructions” and that there was no evidence conclusively establishing that “every single act committed by DSA was within the scope of its agency relationship with” BISD. [Emphasis added.]. Under BISD’s argument
17 define DSA’s authority and that there was no evidence that it extended DSA’s
or Weaver’s authority so that either of them could direct Appellees’ means,
methods, techniques, and sequences for the construction work. Thus,
according to BISD, because Weaver or DSA did not have the authority to
instruct or direct the Appellees’ manner or means, the trial court’s instruction
erroneously imputed Weaver’s or DSA’s outside-the-scope-of-authority
negligent activity to BISD.
The record is clear that the jury also found Briones liable for breach of
warranty and that it awarded BISD damages in the amount of $519,771.00.
Although the $519,771.00 award is a lump sum total not broken down by the
various causes of action, the entire amount of the award can be attributed to
that the instruction improperly removed the question of agency from the jury, it contends that there was conflicting evidence whether DSA or Weaver acted within their apparent authority when “allegedly directing [Appellees] on roof installation.” Under BISD’s actual and apparent authority arguments, it contends that the evidence did not conclusively establish that DSA or Weaver had actual or apparent authority as BISD’s agents “for roof installation instructions.” Under BISD’s argument that the instruction was not supported by the pleadings and evidence, it contends that there was no evidence to support the trial court’s instruction that all of DSA’s acts were the acts of BISD. And under BISD’s argument that the instruction was an improper comment on the weight of the evidence, it contends that the instruction presumed that DSA or Weaver were acting as BISD’s agent when the alleged negligent acts were committed and that the instruction removed from the jury’s consideration any evidence that DSA acted outside of its authority “when it allegedly exercised specific control over the performance of [Appellees’] work.”
18 the jury’s affirmative breach of warranty finding because the trial court rendered
judgment for BISD against Briones for the full amount of the $519,771.00
award; the trial court did not reduce the award by any amount based on the
jury’s 85% negligence-apportionment finding.7 The complained of instruction
also did not factor into the jury’s damages finding because the damages
question specifically instructed the jury to “not reduce the amount, if any, in
your answer because of the negligence, if any, that you have attributed to
Brock Independent School District.” No party challenges the breach of
warranty finding, and we have affirmed the damages award above. Thus, the
inclusion of the instruction that “the actions of DSA, Inc. are those of [BISD]”
had no effect on the trial court’s judgment, which rendered judgment for BISD
on its breach of warranty claim for the full amount of the jury’s damage award.
For the same reasons, the jury’s 85% negligence-apportionment finding likewise
had no effect on the trial court’s judgment. Accordingly, assuming that the trial
court abused its discretion by including the instruction, the error was harmless.
See T EX. R. A PP. P. 44.1; Tex. Disposal Sys. Landfill, Inc., 219 S.W.3d at 580.
We overrule BISD’s first and second issues.
B. Mitigation Instruction
7 See T EX. C IV. P RAC. & R EM. C ODE A NN. §§ 33.001, 33.012(a) (Vernon 1997 & Supp. 2007) (setting forth proportionate responsibility scheme).
19 BISD further argues that there was insufficient evidence to include a
damages mitigation instruction in the jury charge. In arguing that the alleged
error was harmful, BISD contends, “If the mitigation instruction had not been
included in the charge, the jury would have followed the only calculations that
it was given[,] and the damages award would have been based upon the
evidence.” Thus, according to BISD, the mitigation instruction must have
caused the jury to award less damages because the finding is less than the only
two damages calculations that were before the jury. Assuming without
deciding that the trial court abused its discretion by including the mitigation
instruction in the jury charge, we cannot conclude that the error was harmful
because, as explained in our evidentiary sufficiency analysis of the jury’s
damages finding, the jury clearly arrived at its damages finding by adopting the
amounts reflected in a contractor’s bid to perform a roof overlay and to remove
and replace the damaged ceiling panels in the gymnasium, which, in addition
to BISD’s proposed damages calculations, was one of a number of calculations
in evidence. There is nothing to indicate that the mitigation instruction had any
effect on the jury’s damages finding or probably caused the rendition of an
improper judgment. See T EX. R. A PP. P. 44.1. We overrule BISD’s fourth issue.
IV. C ONCLUSION
20 Having overruled each of BISD’s arguments, we affirm the trial court’s
judgment.
PER CURIAM
PANEL B: HOLMAN, DAUPHINOT, and WALKER, JJ.
DELIVERED: March 13, 2008