Granbury Marina Hotel, L.P. v. Berkel & Co. Contractors, Inc.

473 S.W.3d 834, 2015 Tex. App. LEXIS 8576, 2015 WL 4776538
CourtCourt of Appeals of Texas
DecidedAugust 14, 2015
DocketNo. 08-13-00246-CV
StatusPublished
Cited by6 cases

This text of 473 S.W.3d 834 (Granbury Marina Hotel, L.P. v. Berkel & Co. Contractors, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Granbury Marina Hotel, L.P. v. Berkel & Co. Contractors, Inc., 473 S.W.3d 834, 2015 Tex. App. LEXIS 8576, 2015 WL 4776538 (Tex. Ct. App. 2015).

Opinion

OPINION

YVONNE T. RODRIGUEZ, Justice

This appeal arises from a jury verdict in favor of a contractor, Berkel and Company Contractors, Inc. (hereinafter, “Berkel”), [837]*837in its breach-of-contract action against a developer, Granbury Marina Hotel L.P. d/b/a Hilton Garden Inn, Granbury (hereinafter, “Hilton”). The jury awarded Berkel $40,148.00 in actual damages and $18,600.00 in attorney’s fees. After Berkel accepted a remittitur of damages, the trial court entered a judgment awarding Berkel $30,348.00 in actual damages, $18,600.00 in attorney’s fees, $964.59 in court costs, $6,828.30 in pre-judgment interest, and post-judgment interest at the rate of five percent, compounded annually.

On appeal, Hilton challenges the sufficiency of the evidence supporting the jury’s verdict (Issue One), the admission of evidence as business records (Issue Two), and the denial of its motion for new trial (Issue Three). Concluding that the trial erroneously admitted hearsay evidence and that this error probably resulted in an improper judgment, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Berkel, which has been in business since 1959, installs deep foundations in poor soil conditions — by driving piles into bedrock— to support tall building and big structures. In May 2007, Berkel entered into a contract with Hilton to install a deep foundation for the construction of a hotel at a marina. Berkel’s vice president and regional manager, Tracy Brettmann, signed the contract, which was valued at $391,680.00. The contract required Hilton to make progress payments but permitted Hilton to .withhold 10 percent of the amount owed until completion of the project.

The project was completed in early July 2007. Shortly thereafter, Berkel sought final payment in the amount of $40,148.00.1 Hilton refused to pay, prompting Berkel to file suit against Hilton. Berkel brought causes of action for: (1) suit on a sworn account; (2) breach of contract; (3) quantum meruit; and (4) promissory estoppel. Berkel denied the claims and countersued for breach of contract.2

The case proceeded to a one-day jury trial. Berkel called two witnesses — Brett-mann and trial counsel — and Hilton called none. During Brettmann’s testimony, Berkel offered into evidence two exhibits relevant to the disposition of this appeal. The first was Plaintiffs Exhibit No. 2, a document labeled “APPLICATION AND CERTIFICATION FOR PAYMENT” and the second Plaintiffs Exhibit No. 3, a document labeled “FINAL Retainage Application for Payment and FINAL Lien Releases.” When Berkel moved for the admission into evidence of Plaintiffs Exhibit No. 2, the following colloquy occurred:

[PLAINTIFF’S COUNSEL]: I want to show you what’s been marked as Exhibit No. 2. Is this an application certification for payment related to this project?
[BRETTMANN]: Yes, it is.
[PLAINTIFF’S COUNSEL]: And is this — You’re the custodian of records, correct?
[BRETTMANN]: Yes.
[PLAINTIFF’S COUNSEL]: Is this a true and correct copy of that, was it made at the time of the date, which is August 8th, 2007?
[BRETTMANN]: Yes, it is.
[838]*838[PLAINTIFF’S COUNSEL]: Your Honor, we at this time move for admission of Exhibit No. 2 — Plaintiffs Exhibit. ■
[TRIAL COURT]: Any objection?
[DEFENDANT’S COUNSEL]: Yes, Your Honor, two objections; one, as to the business records foundátion. We object, two, that the witness has not shown the requisite personal knowledge' of how the records were maintained in the course of business. And then we would also object to the hearsay within hearsay from the .affidavit that is contained in the record.
[TRIAL COURT]: All right. As to objection — -that first ■ objection, that’s- sustained. Go ahead and lay the foundation on the business records, please.
[PLAINTIFF’S COUNSEL]: Well, Mr. Brettmann, are you custodian of the records? ' •
[BRETTMANN]: Yes.
[PLAINTIFF’S COUNSEL]: If you would take a look at this document, is it true and accurate and was it made at the time it shows on the date?
[BRETTMANN]: Yes, it was.
[PLAINTIFF’S COUNSEL]: Is this the type of document — is this document kept in the normal course of business of Berkel and Company Contractors?
[BRETTMANN]: It is,-yes.
[PLAINTIFF’S COUNSEL]: Yóur Honor, at this time we would move for admission of Exhibit No. 2.
[TRIAL COURT]: All right. The second objection is overruled. The first objection is now overruled. No. 2 is admitted.

A similar exchange transpired when Berk-el moved for the admission into evidence of Plaintiff s Exhibit No. 3:

[PLAINTIFF’S COUNSEL]: I’m going to show you Plaintiff’s Exhibit No. 3. This is entitled Final Retainage Application for Payment and Final Lien Releases. Let me ask you the same questions on that one. Are you the custodian of records for Berkel and Company?
[BRETTMANN]: Yes, lam.
[PLAINTIFF’S COUNSEL]: Is that a true and correct copy of the document— of what it represents to be?
[BRETTMANN]: Yes, it is.
[PLAINTIFF’S COUNSEL]: Was that document made on or about the time that it shows, which — on the date it would show?
[BRETTMANN]: Yes. .
[PLAINTIFF’S COUNSEL]: And - is that document kept in the normal course of business at Berkel?
[BRETTMANN]: Yes.
[PLAINTIFF’S COUNSEL]: Your ■ Honor, at this time we would move for admission of Exhibit 3, Plaintiffs.
[TRIAL COURT]:. Objection?
[DEFENDANT’S .COUNSEL]: Your Honor, again, we’d object on the lack of proper foundation as to the knowledge of the — personal knowledge of how the records or the knowledge of the records were kept by someone with personal knowledge and under improper foundation and would also object to the hearsay within the document purporting to be an affidavit of Gregory Wileke.
[TRIAL COURT]: All right. That objection’s overruled. Plaintiff’s Exhibit No. 3 are [sic] admitted.

Referring to and relying on the information contained in these exhibits, Brettmann testified that Hilton owed Berkel $40,148.00. Brettmann also testified that the project was complete when Berkel submitted the final invoice to Hilton and that Hilton breached the contract when it did not pay the invoice 30 days after its sub[839]*839mission. The jury agreed, finding that Hilton failed to comply with its contract with Berkel.

' As mentioned earlier, Hilton raises three issues on appeal; the first of which challenges the legal sufficiency of the evidence supporting the jury’s verdict.

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Bluebook (online)
473 S.W.3d 834, 2015 Tex. App. LEXIS 8576, 2015 WL 4776538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/granbury-marina-hotel-lp-v-berkel-co-contractors-inc-texapp-2015.