Pearcy/Christon, Inc. v. Cutler Construction Co.

601 S.W.2d 490, 1980 Tex. App. LEXIS 3527
CourtCourt of Appeals of Texas
DecidedJune 3, 1980
DocketNo. 20226
StatusPublished
Cited by1 cases

This text of 601 S.W.2d 490 (Pearcy/Christon, Inc. v. Cutler Construction Co.) 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
Pearcy/Christon, Inc. v. Cutler Construction Co., 601 S.W.2d 490, 1980 Tex. App. LEXIS 3527 (Tex. Ct. App. 1980).

Opinion

ROBERTSON, Justice.

This is an appeal from a judgment awarding plaintiff-appellee, Cutler Construction Company, moneys it was due for completing a construction project for defendant-appellant, Pearcy/Christon, Inc. Defendant complains that the trial court erred in sustaining special exceptions, excluding testimony, awarding attorney’s fees, and submitting incorrect special issues. We conclude that the award to plaintiff of attorney’s fees was erroneous, and, as to that portion of the trial court’s judgment, we modify by deleting the award to plaintiff of attorney’s fees. As so modified, the trial court’s judgment is affirmed.

The parties entered into a written contract in January 1976 for the construction of buildings in a shopping center in Green-ville, Texas. The contract provided that [492]*492defendant would reimburse plaintiff for the cost of the work and, additionally, would pay plaintiff a contractor’s fee as a percentage of the cost of the work. Pursuant to that contract, plaintiff constructed the buildings and demanded payment from defendant for the finished buildings in the amount of $611,994.29. Defendant paid plaintiff $569,813.98, but withheld the remaining $42,180.31, due to numerous alleged defects in the buildings. Plaintiff filed suit against defendant, claiming that it was entitled to the full contract price for constructing the buildings. Defendant answered by a general denial, and filed a counterclaim alleging acts of negligence on the part of plaintiff that resulted in unnecessary cost overruns, and failure to construct the buildings in a good and workmanlike manner. Following a trial to a jury, the trial court rendered judgment on the verdict for plaintiff.

Defendant’s first point of error relates to the trial court’s action in sustaining exceptions to some of defendant’s allegations. Defendant’s answer included allegations that plaintiff negligently performed several of its obligations under the contract. Plaintiff’s special exceptions asserted that defendant’s allegations of negligence were global and failed to advise it of specifics, and that those allegations improperly raised negligence as a defense in an action based on a contract. Defendant argues here that the trial court erred in striking its negligence allegations because negligence may be asserted as a defense in a contract action. We need not address this contention because the trial court’s order may be upheld on the alternative ground raised in plaintiff’s exceptions, that is, that the stricken allegation was global. The stricken allegation was a subdivision of defendant’s negligence allegation and read as follows: “Plaintiff failed to use due and reasonable diligence to obtain labor and materials on the job at reasonable and fair market values . . . .” Plaintiff’s special exception stated that no specific areas of proof were indicated by this allegation. The function of a special exception is to force clarification and specification in pleadings that are vague, indefinite, or uncertain. Townsend v. Memorial Medical Center, 529 S.W.2d 264, 267 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n.r.e.). We conclude that the trial court did not abuse its discretion in striking this pleading. Further, defendant did not attempt to amend his allegations to conform to the exception and thus, we fail to perceive any way in which it was hurt by the trial court’s action. Defendant’s first point of error is overruled.

Defendant’s second point of error complains of the trial court’s exclusion of testimony by two witnesses as to the plaintiff’s failure to perform certain work in a good and workmanlike manner. The question before the trial court was whether the witnesses had been shown to be qualified to testify as experts regarding the particular work. United States Fire Insurance Co. v. Stricklin, 556 S.W.2d 575, 580 (Tex.Civ.App.—Dallas 1977), writ ref’d n.r.e. per curiam, 565 S.W.2d 43 (Tex.1978). In reviewing the trial court’s determination we must recognize its broad discretion and only overturn that determination upon a clear showing of abuse of discretion. Stanley v. Southern Pacific Co., 466 S.W.2d 548, 551 (Tex.1971); Wilson v. Scott, 412 S.W.2d 299, 304 (Tex.1967).

The first witness was a cement contractor whose testimony related to the quality of the paving work done by plaintiff’s subcontractor. His testimony included statements that he had been a cement contractor in the area for thirty years, that he had had occasion to work with and on, and to repair asphalt parking lots, and that in repairing the asphalt parking lot in question he had observed the depth of the rock base under the lot. On cross-examination, however, the witness also testified that while he thought the base was a certain type of rock he was not sure and had never tested it, so he could not tell how the rock would serve as a base. Defendant did not attempt to introduce this witness’ testimony in response to hypothetical questions, but rather as an expert with personal knowledge of facts. In light of the witness’ [493]*493responses on cross-examination, we cannot say the trial court abused its discretion in excluding this testimony.

The second witness was a plumbing contractor whose testimony related to the quality of work performed in installing a sewer line from a building to the central sewer line. The alleged defect in installation was that the sewer line did not have sufficient “fall” or incline from the building to the central line to assure proper flow. In response to a question inquiring whether the line was installed in a good and workmanlike manner the witness replied as follows:

Well, the only thing I can say, I don't know how it was installed originally, but the only thing that I can say was that it did not have a fall going from the outside of the building to the sewer main. I don’t know what kind of soil they had underneath the line whenever they installed it, whether it was, they put it in mud or whether it was sands or whatever, but they either didn’t have a fall on it or they installed it improperly or it sank down over a period of time.

[emphasis added]. This witness’ testimony indicates that he was not familiar with sufficient facts upon which to base an expert opinion as to the cause of the lack of incline, and thus, that any opinion he would have expressed would have been conjectural. Consequently, we find no abuse of discretion in the trial court’s exclusion of this testimony. Defendant’s second point of error is overruled.

Defendant’s third point of error complains of the exclusion of testimony regarding the elements of what it considers to be the proper measure of damages in this case, that is, the difference between the market value of the building had it been constructed in a good and workmanlike manner and the value of the building as it was actually constructed.

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Cite This Page — Counsel Stack

Bluebook (online)
601 S.W.2d 490, 1980 Tex. App. LEXIS 3527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pearcychriston-inc-v-cutler-construction-co-texapp-1980.