Prime Trees and Landscaping Services D/B/A/ Mulch Matters v. Americon Services Company, Inc.

• Court: Court of Appeals of Texas
• Decided: March 17, 2011
• Docket: 01-09-00779-CV
• Status: Published

Opinion

Opinion issued March 17, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00779-CV

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Prime Tree and Landscaping Services d/b/a Mulch Matters, Appellant

V.

Americon Services Company, Inc., Appellee

On Appeal from County Court at Law No. 2

Harris County, Texas

Trial Court Case No. 886143

MEMORANDUM OPINION

In this breach-of-contract case, appellant, Prime Tree and Landscaping Services, Inc. d/b/a Mulch Matters (“Prime Tree”), appeals from the trial court’s partial summary judgment rendered in favor of appellee, Americon Services Company (“Americon”), and from the final judgment rendered from a jury verdict in favor of Americon and against Prime Tree.  Specifically, Prime Tree contends the trial court erred by granting Americon’s motion for summary judgment on the terms of the parties’ contract and that the court should have granted its motion for directed verdict challenging the jury’s damages award.   

We affirm.

Background

          This case involves a contract to provide dirt for a construction project.  Americon is a civil site contractor that constructs things like building pads and roads.  Americon was hired as a subcontractor by Dyad Construction, a general contractor working at Galena Park Elementary School.

John Carey, Americon’s Vice President, testified that he contacted Lance Bowe to obtain a quote for dirt that Americon needed for this Galena Park work.    Bowe supplies dirt through three separate companies, one of which is appellant here, Prime Tree.  

For the Dyad job at Galena Park, Americon specifically needed “select fill,” a type of dirt suitable for building foundations.  An important factor associated with select fill is its plasticity index (“PI”), a scientific measurement of the dirt.  The PI determines the suitability of the dirt for use under slabs, foundations, and buildings.  Generally, the soil’s plasticity is affected by the balance of clay and sand in the dirt.[1]  Dyad’s job specifications for Americon’s work called for “a PI dirt of 15-to-20.” 

As required by Dyad, a sample of Bowe’s dirt was inspected by a testing laboratory and reflected a PI level of 16.  Following that testing, Americon incorporated the pricing that Carey obtained from Bowe into the formal bid prepared for Dyad for the Galena Park job.   

On September 11, 2006, Americon faxed to Mulch Matters purchase order no. 7256-01 (“Purchase Order”) calling for approximately 1650 loads of select fill with a PI of 15-20 at $32.00 per load.  Less than 30 minutes later, Sherlyn Cope (a Mulch Matters employee) faxed back to Americon an estimate for providing the select fill.  The estimate stated “[p]er your PO 7256-01,” a quote of approximately “1650 Loads of Select fill at $32 per load.”  On the fax cover sheet was a note from Cope requesting Americon “sign and fax back prior to [the] job beginning.”    Bernice Clay, Americon’s president, signed and dated the estimate and faxed it back the same day.[2] 

Two days later, on September 13, 2006, dirt began being delivered to the Galena Park site.  When Carey arrived at the site that morning, he immediately noticed that the dirt did not appear to conform to the PI level of 15-20 as specified in the purchase order.  Concerned, he followed one of the dump trucks supplying the dirt back to the dig site to investigate.  He then discovered that the source location of the dirt had changed from the original site where the engineers had tested the PI level to a new site where PI levels had not been tested.  Carey asked Bowe’s on-site employee to remedy the problem and requested that they continue supplying dirt.  Upon being notified of the problem, however, Bowe stopped all further supply of dirt and terminated the relationship with Americon.    

When the dirt was delivered, Dyad’s engineers also visually inspected it and noted it appeared to be nonconforming.  Laboratory tests confirmed a PI range of 25-35, outside the acceptable range.  Dyad gave Americon two choices: (1) remove the non-conforming dirt and replace with the specified select fill, or (2) mix additives into the dirt to bring it within the PI level required for the site.  Carey testified that this first option was not feasible, as Bowe was not willing to take the dirt back, and that transport to the only other location with capacity to take the dirt would be cost-prohibitive.  Americon thus determined that the quickest and easiest alternative was to use additives to correct the PI.  In doing so, it incurred additional costs, including for (1) equipment, (2) delay, (3) labor, (4) materials used as mix,
(5) retesting costs, and (6) fuel.

Americon finished the project by contracting with another dirt supplier.  This supplier provided less expensive dirt, but was located farther away from the construction project site, so the cost to transport the dirt was higher than the cost to transport dirt from the Mulch Matters site.

On September 26, 2006, Mulch Matters sent Americon a $11,028 invoice for the dirt supplied to the Galena Park site before the dispute arose.  Bowe took the position that Americon owed this amount for the dirt supplied to the Galena Park site.  Americon, on the other hand, asserted that it should be reimbursed for the problems associated with the non-conforming dirt.

A.   Trial Court Proceedings

In February 2007, Americon sued “Mulch Matters Inc.,” another Bowe company, seeking damages for breach of contract and for violations of the Texas Deceptive Trade Practices Act (“DTPA”).  Attached to its original petition was the Purchase Order and the Mulch Matters estimate.  In December 2007, Americon filed an amended petition, adding “Prime Trees, Inc.” and “Lance Bowe” as defendants.  Americon also added claims for common law fraud, fraud by nondisclosure, violations of the Texas Finance Code, and theories of vicarious liability. 

In January 2008, Americon filed a motion for partial summary judgment “on the limited issue of whether [the] contract contained specifications for the select fill material.”  Specifically, it asked the court to find that the PI specifications found in the Purchase Order were incorporated by reference into Mulch Matters estimate number 161 as a matter of law, and were, therefore, part of the agreement between the parties.  The trial court granted a partial summary judgment in February 2008, and ordered that “the contract between Plaintiff and Defendant in this matter includes all terms found in that certain Purchase Order dated September 11, 2006 and attached to Plaintiff’s First Amended Petition as Exhibit ‘A.’” 

In April 2008, Americon filed a second amended petition adding appellant, “Prime Tree and Landscaping Services, Inc. d/b/a Mulch Matters” as a defendant.  In September 2008, Americon filed a traditional motion for summary judgment arguing that it “is entitled to judgment as a matter of law on its breach of contract claim against Defendant.”  The trial court denied this motion for summary judgment.[3]

At trial, pursuant to the court’s prior summary judgment ruling, the jury was instructed that the parties’ agreement “is the combined terms of the American Services Company Inc.’s Purchase Order, dated September 11, 2006, and Prime Tree and Landscaping Services, Inc., d/b/a Mulch Matters’ Estimate, dated September 11, 2006.”  The jury then found that “Prime Tree and Landscaping Services Inc. d/b/a Mulch Matters fail[ed] to comply with its Agreement with Americon.”  It awarded $30,500.00 in actual damages,  $35,000.00 in trial attorney’s fees, and $12,000.00 in conditional attorney’s fees for appeal.  It rejected Americon’s fraud claim against Bowe.   

B.   This Appeal

Prime Tree appealed, arguing there was error in the trial court’s order granting partial summary judgment and in its failure to grant a directed verdict. 

Summary Judgment

Prime Tree argues that trial court erred in granting Americon’s partial summary judgment for four reasons.[4]  In its first point of error, Prime Tree contends Americon’s Purchase Order was not in evidence nor properly proved up by Americon’s motion for summary judgment.  In its second point of error, it asserts the trial court erred in ruling that Americon’s Purchase Order—which it contends Mulch Matters’s employee was fraudulently induced to sign—contained the terms of the parties’ agreement.  In its third point of error, Prime Tree contends Americon did not prove the necessary elements of its claim as a matter of law and that material issues of fact existed sufficient to preclude the granting of a summary judgment.    Finally, in its fourth point of error, Prime Tree contends fact issues existed as to each element of its affirmative defenses of fraud and lack of authority.

A.   Standard of Review

To prevail on a Rule 166a(c) summary-judgment motion, a movant must prove that there is no genuine issue regarding any material fact and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). A plaintiff moving for summary judgment must conclusively prove all essential elements of its claim. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). 

If the movant meets its burden, the burden then shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence.   Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

On appeal, we review de novo a trial court’s summary judgment ruling. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).  We consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).

B.   Summary Judgment Evidence

The trial court’s summary judgment order states its finding that “the contract between Plaintiff and Defendant in this matter includes all terms found in that certain Purchase Order dated September 11, 2006 and attached to Plaintiffs’ First Amended Petition at Exhibit ‘A.’”  In its first point of error, Prime Tree asserts the “court erred in basing the Order granting partial summary judgment on a document that was not in existence and not proved up in the motion for Partial Summary Judgment.”  Specifically, Prime Tree complains that there “is no Exhibit ‘A’ attached to Americon’s First Amended Petition” and that “[n]o document attached to the motion [for summary judgment] is identified as the said Exhibit A.”  Because the order “refers to a document that is not in existence” and because a “court cannot grant a summary judgment based on evidence that is not properly submitted with the motion” Prime Trees argues, the granting of summary judgment based on the Purchase Order was improper.   

In response, Americon contents that Prime Tree waived its complaint by failing to object to any alleged defect in Americon’s summary judgment evidence in the trial court.  Had Prime Tree objected, Americon contends, it would have been permitted to amend to remedy any error.  Moreover, Americon argues, Prime Tree failed to specially except to Americon’s failure to attach the Purchase Order to its First Amended Petition, which waived any complaint about omissions in that filing.  Finally, Americon notes that there has only been one Purchase Order at issue and, thus, it “was clear which Purchase Order was referenced in the Court’s Order.” 

Prime Tree is correct that the Purchase Order was not appended as Exhibit A to Plaintiff’s First Amended Petition, and Americon concedes as much.  It was, however, attached as Exhibit A to Plaintiff Original Petition, and was attached to Exhibit A of Americon’s summary judgment motion.[5] 

We agree with Americon that Prime Tree waived any argument about Americon’s Purchase Order allegedly not being properly proved up with its motion for summary judgment.  Only one September 11, 2006 Purchase Order has been at issue in this case.  That Purchase Order was properly attached to Americon’s summary judgment motion and proven up as summary judgment evidence.  Prime Tree lodged no objection to that evidence.  See Tex. R. Civ. P. 166a(f) (“Defects in the form of affidavits or attachments [to summary judgment motions] will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.”); see also Commint Technical Servs. Inc. v. Quickel, 314 S.W.3d 646, 651 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (must object and obtain ruling on objections to form of summary judgment evidence to preserve for appeal). 

We also conclude that the trial court’s erroneous reference to the Purchase Order as “attached to Plaintiffs’ First Amended Petition at Exhibit ‘A’” was harmless surplusage in the partial summary judgment order.  Cf. Alegria v. Tex. Alcoholic Beverage Comm’n, 731 S.W.2d 723, 726 (Tex. App.—Houston [14th Dist.] 1987, no writ) (“Surplusage does not affect the validity of a judgment.”).  Prime Tree referenced the Purchase Order in its response to Americon’s motion for summary judgment, and never took the position in the trial court that there was any uncertainty about what document was at issue.  Based on the court’s interlocutory summary judgment ruling, the jury was charged that the parties’ agreement “is the combined terms of Americon Services Company, Inc.’s Purchase Order, dated September 11, 2006, and Prime Tree and Landscaping Services, Inc., d/b/a Mulch Matters’s Estimate, dated September 11, 2006.”  We overrule Prime Tree’s first point of error.  

C.   Fact issues

In moving for partial summary judgment on the terms of the parties’ contract, Americon argued that its Purchase Order and Mulch Matters’ estimate should be read together—as an offer and acceptance—to be one unambiguous contract containing the terms from each.  In response, Mulch Matters argued the following as reasons that summary judgment was not appropriate: (1) the required PI in the Purchase Order is not part of the parties’ agreement because Mulch Matters’ estimate prepared in response to the Purchase Order did not contain a guarantee of PI and the reference to the Purchase Order’s number within that estimate was for identification only, not for acceptance of its terms, (2) Sherlyn Cope, Mulch Matters’ employee who signed the Purchase Order, was not authorized to do so, (3) Cope was fraudulently induced into signing the Purchase Order, and (4) the “documents are ambiguous and the testimony of Lance Bowe shows that Defendants did not agree to provide dirt with a specific” PI level.  The trial court rejected these arguments and granted Americon’s motion for partial summary judgment.     

In three points of error, Prime Tree lodges two related substantive complaints about the trial court’s partial summary judgment that we address together.  Specifically, in its second, third, and fourth points, Prime Tree claims that its summary judgment evidence raised material issues of fact regarding the terms of the parties’ agreement and material issues of fact regarding its affirmative defenses of fraudulent inducement and lack of authority.  In response, Americon contends that Prime Tree has failed to show any harm, as it was permitted to introduce evidence at trial in support of its defenses of fraudulent inducement and lack of authority, and Bowe was permitted to testify that he did not intend for the agreement with Americon to include a guarantee of PI.  Alternatively, Americon asserts that the trial court’s ruling was correct, Mulch Matters’s estimate incorporated by reference Americon’s Purchase Order, and the two together are unambiguous and should be interpreted as a matter of law.  Finally, Americon contends that Prime Tree’s other arguments lack merit because Bowe’s representations about his intent are barred by the parol evidence rule, and Americon’s Purchase Order was incorporated by reference and a valid part of the parties’ agreement before Cope ever signed it, rendering Prime Tree’s fraudulent inducement arguments moot.

We agree with Americon that the trial court properly granted Americon’s motion for summary judgment on the terms of the parties’ agreement.  Americon’s Purchase Order specified “(+/-) 1650 Loads” of  “Select Fill (p.i. 15, 16, 17 – 20 or less)” at “32.00/per load.”  Approximately 20 minutes after receiving Americon’s Purchase Order, Mulch Matters responded with its Estimate quoting “Per your PO 7256-0 . . . Approx 1650 Loads of Select fill at $32.00 per load.”  While Mulch Matters insists this was a counterproposal, the estimate specifically references Americon’s Purchase Order by name and states that it has been prepared “Per” that Purchase Order.  Further, the Estimate tracks most of the Purchase Order material terms, i.e. product, price and quantity, while not expressly contradicting the PI terms it claims it purposefully omitted. 

If a contract is unambiguous, it should be interpreted as a matter of law by the court.  Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1993).  “Whether a contract is ambiguous is a question of law for the court to decide by looking at the contract as a while in light of the circumstances present when the contract was entered.” Nat’l Union Fire Ins. Co. v. CBI Indus., 907 S.W.2d 517, 520 (Tex. 1995).  

“[A]n unsigned paper may be incorporated by reference into a paper signed by the person to be charged.”  Trico Marine Servs., Inc. v. Stewart & Stevenson Technical Servs., Inc., 73 S.W.3d 545, 549 (Tex. App.—Houston [1st Dist.] 2002, orig. proceeding [mand. denied]) (quoting Owen v. Hendricks, 433 S.W.2d 164, 166 (Tex. 1968)).  “The language used is not important provided the document signed by the defendant plainly refers to another writing.”  Trico Marine Servs., Inc., 73 S.W.3d at 549.  The incorporated document, however, “must be referenced by name.”  Stewart & Stevenson, LLC v. Galveston Party Boats, Inc., No. 01-09-00030-CV, 2009 WL 3673823, at *11 (Tex. App.—Houston [1st Dist.] Nov. 5, 2009, no pet.) (mem. op.).  An incorporated document becomes part of the single agreement.  In re Bank One, N.A., 216 S.W.3d 825, 826 (Tex. 2007) (orig. proceedings).

We agree with the trial court that the estimate unambiguously incorporated by reference Americon’s Purchase Order, Trico Marine Servs., 73 S.W.3d at 549, and, thus, the trial court correctly construed the two documents as constituting the parties’ agreement.  In re Bank One, N.A., 216 S.W.3d at 826. 

We also conclude that Bowe’s and Cope’s testimony that Mulch Matters points to does not, as it claims, create a fact issue that should have defeated summary judgment.  In responding to Americon’s motion, Mulch Matters relied upon an affidavit from Bowe stating that he “told Plaintiff’s representative that Defendant did not guarantee [PI]s” and that, by “referencing Plaintiff’s Purchase Order number[,] Defendant did not intend to agree to the [PI] stated in the Purchase Order.”  The affidavit further provided that it “is standard in the industry to reference purchase orders for the sole purpose of giving the number, not agreeing to the terms.”  According to Prime Tree, because this uncontroverted evidence was not objected to, the “court should have taken this testimony as true and denied the summary judgment.”

The issue, however, is not whether the evidence was objected to, but whether it could properly raise a fact issue to defeat summary judgment.  The parol evidence rule is not a rule of evidence, but a rule of substantive law.  Hubacek v. Ennis State Bank, 317 S.W.2d 30, 31 (Tex. 1958).  Parol evidence cannot be used to change contract terms that must be given their “plain and ordinary meaning unless the instrument indicates the parties intended a different meaning.”  Dynegy Midstream Servs., Ltd. v. Apache Corp, 294 S.W.3d 164, 168  (Tex. 2009) (emphasis added); Meyerland Cmty. Improvement Ass’n v. Temple, 700 S.W.2d 263, 267 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.) (“[I]n construing a contractual provision, it is the objective, and not the subjective, intent of the parties that must be ascertained; it is the intent expressed or apparent in the writing that controls”).    Parol evidence thus cannot create a fact issue about a contract’s meaning to defeat summary judgment when that contract is unambiguous.  DRC Parts & Accessories v. VM Motori, 112 S.W.3d 854, 858-59 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).  And, more specifically, parol evidence about “standard practice in the industry,” such as that relied upon by Prime Tree here, cannot be used to vary or contradict the terms of unambiguous contracts.  Dynegy Midstream Servs., 294 S.W.3d at 169-70.    

Prime Tree’s evidence about the circumstances under which Cope signed Americon’s Purchase Order likewise fails to raise a fact issue, but for a different reason.  Prime Tree cites summary judgment evidence that Cope’s signature was not secured on Americon’s Purchase Order until two days after Mulch Matters had begun delivering dirt under the parties’ agreement.  Bowe’s affidavit stated that Cope was not “authorized to sign such document[]” and that she only signed it “because the person presenting it to her told her that [Bowe] has said for her to sign it.”  Prime Tree argues this evidence “raised material issues of fact regarding its affirmative defenses of fraudulent inducement and lack of authority” and established that “the summary judgment was based on this fraudulent document.”  Americon responds that the circumstances of the signing of the Purchase Order “are irrelevant and failed [to] raise a genuine issue of material fact regarding the terms of the contract between the parties” because the parties entered into a binding agreement before the Purchase Order was signed. 

“Although statements about the meaning of a contract’s terms are ordinarily not admissible to add to, vary, or contradict the terms of an unambiguous written contract, they are admissible to show whether a party was fraudulently induced to enter the contract.”  Young v. Neatherlin, 102 S.W.3d 415, 422 (Tex. App.—Houston [14th Dist.] 2003, no pet.).  But a “motion for summary judgment is not defeated by the presence of an immaterial fact issue.” Howell v. Murray Mortg. Co., 890 S.W.2d 78, 84 (Tex. App.—Amarillo 1994, writ denied).  “A fact is material if it affects the ultimate outcome of the lawsuit under the governing law.”  Pierce v. Washington Mut. Bank, 226 S.W.3d 711, 714 (Tex. App.—Tyler 2007, pet. denied). 

Here, evidence germane to the alleged fraudulent procurement of Prime Tree’s employee’s signature on Americon’s Purchase Order is only material for purposes of defeating summary judgment if that signature is relevant to whether a contract exists or is enforceable.  Americon does not contend, however, that the signed Purchase Order formed the contract.  Instead, Americon relies upon Mulch Matter’s estimate as the contract, which we have held—even taking Prime Tree’s evidence as true—already  incorporated the purchase order by reference before Prime Tree claims the signature was fraudulently induced.  Because an unsigned document can be incorporated by reference, the validity of a later acquired signature is irrelevant.  E.g., Trico Marine Servs., 73 S.W.3d at 549 (“[A]n unsigned paper may be incorporated by reference . . . .”).  This is in fact why the trial court refused Prime Tree’s tender and request for a submission of a jury “question regarding fraud in the inducement  . . . regarding Sherilyn Cope being asked to sign the purchase order,” explaining: “This question is also rejected as the contract was formed before she ever signed off.  There’s no reliance.”   

Finding no error in the trial court’s granting Americon’s partial motion for summary judgment on the terms of the contract, we overrule Prime Tree’s second, third, and fourth points of error. 

Instructed Verdict

In Prime Tree’s fifth issue, it contends the trial court erroneously failed to grant a directed verdict on the jury’s damages award.  A denial of a motion for directed verdict may be reversed when the evidence conclusively proves a fact that establishes a party’s right to judgment as a matter of law, and there is no evidence to the contrary.  Hartford Fire Ins. Co. v. C. Springs 300, Ltd., 287 S.W.3d 771, 777 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).  In reviewing the denial of a directed verdict, we consider all the evidence in the light most favorable to the nonmovant and disregard all evidence to the contrary.  Id.  Every reasonable inference is resolved in favor of the nonmovant.  Id. If there is any conflicting evidence of probative value on any theory of recovery, the issue must go to the jury.  Id.

The jury found that $30,500 would “fairly and reasonably compensate Americon Services Company, Inc. for its damages.”  It was instructed to consider (1) “reasonable and necessary cost to bring the select fill into compliance with the contract specifications,” (2) “reasonable and necessary costs incurred by Americon . . . due to the delay in performance caused by the nonconforming select fill, . . . include[ing], but not limited to, equipment rentals and worker wages,” and (3) “extra costs to obtain replacement select fill to complete the contract quantity.”  Prime Tree asserts that the court should have granted its motion for a directed verdict because Americon failed to prove that the expenses for which it was awarded damages were reasonable and necessary.  

In a breach-of-contract case, a party seeking to recover its costs of completion has the burden to prove that the damages sought are reasonable.  See Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 200 (Tex. 2004); Burke v. Union Pac. Res. Co., 138 S.W.3d 46, 73 (Tex. App.—Texarkana 2004, pet. denied).  Evidence of the amounts charged and paid, standing alone, is no evidence that such payment was reasonable and necessary.  Mustang Pipeline Co., 134 S.W.3d at 200–01.  However, “reasonable and necessary” are not magic words that a witness must speak to support a jury’s award.  Burke, 138 S.W.3d at 73.  Instead, a party need only to present sufficient evidence to support a jury’s finding.  Id.

We hold that Americon presented sufficient evidence to support the jury’s damages finding.  There is evidence that Prime Tree refused to replace the nonconforming dirt or accept the dirt back.  Americon thus either had to fix the PI level of the non-conforming dirt or replace it with another supplier’s dirt.  Americon presented evidence that, by balancing the PI level rather than replacing the non-conforming dirt, Americon reduced and mitigated its costs by selecting “the quickest and cheapest alternative.”  The record further demonstrates that, when it used equipment to fix the problem of the non-conforming dirt, Americon mitigated costs where it could by using equipment that it owned, and assigning a reduced rate for the daily use of the equipment, rather than renting equipment at a higher per-day rental charge. 

Additionally, the record reflects that Americon incurred other unavoidable costs and delays due to the non-conforming dirt.  For instance, there were additional costs associated with shutting down the project, testing the dirt, non-productive rental equipment that Americon could not use until the PI problem was fixed, use of equipment that could have been in use at other work sites instead, and additional labor costs.  Further, because Americon could not finish out its dirt order with Prime Tree, it had to go to another supplier to get the dirt it needed.  Although the dirt from the other supplier was cheaper, the trucking costs were higher because the supplier’s site was located further from Americon’s project site, causing Americon to incur additional costs above what it would have cost to supply all the dirt from Prime Tree.

Americon presented detailed evidence that it incurred additional expenses of $56,138.85 to remedy the nonconforming dirt.  From that, it asked the jury to award it a reduced amount of $42,234.00.  The jury discounted this amount further, actually awarding $30,500.00.  Because there is ample evidence that Americon incurred significant costs in correcting the nonconforming dirt, and evidence that it attempted to repair the problem in a cost effective way that mitigated the total cost, we conclude the record contains some evidence that the damages awarded were both reasonable and necessary.  See Burke, 138 S.W.3d at 73 (concluding that evidence comparing cost of successfully repairing well with cost of unsuccessful repair attempt and original cost of well was sufficient for rational jury to conclude cost of repair was reasonable and necessary).  The trial court did not err in denying Prime Tree’s motion for a directed verdict.

We overrule Prime Tree’s fifth issue.

Conclusion

          We affirm the judgment of the trial court.

                                                                   Sherry Radack

                                                                   Chief Justice  

Panel consists of Chief Justice Radack, and Justices Massengale and Nuchia.[6]

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[1]           This matters because, for example, if there is too much clay mixed into the dirt, the clay can expand and crack a foundation laid on top of the dirt.

[2]           Cope’s signature, also dated September 11, 2006, appears on the Americon’s Purchase Order.  As discussed in more detail later in this opinion, Mulch Matters claims this signature was actually procured on a later date. 

[3]           On May 5, 2009, the first day of trial, Americon non-suited parties Mulch Matters, Inc. and Prime Trees, Inc. and dismissed its DTPA and Texas Finance Code violations claims against Prime Tree and Bowe.  As the various pleadings asserting claims against Bowe’s various companies reflect, there was some dispute at trial as to which of Bowe’s companies—Mulch Matters, Inc., Prime Tree, Inc., or appellant Prime Tree and Landscaping Services, Inc. d/b/a Mulch Matters—was the actual contracting party.  Because no one challenges the trial court’s judgment on that basis on appeal, we need not address that issue or distinguish between Bowe’s different companies in this opinion.  

[4]           The trial court’s interlocutory summary judgment merged into the final judgment and is a proper subject of this appeal.  In re Guardianship of Miller, 299 S.W.3d 179, 189 (Tex. App.—Dallas 2009, no pet.).

[5]           Exhibit A to Americon’s motion was an affidavit of Bernice Carey proving up attached copies of Americon’s Purchase Order and Mulch Matters’s estimate as true and correct copies.

[6]           The Honorable Sam Nuchia, Senior Justice, Court of Appeals for the First District of Texas, participating by assignment.