B & W SUPPLY, INC. v. Beckman
| Decision Date | 09 April 2009 |
| Docket Number | No. 01-07-00574-CV.,01-07-00574-CV. |
| Citation | 305 SW 3d 10 |
| Parties | B & W SUPPLY, INC. and Weston Wyatt, Individually, Appellants, v. Lawrence and Diane BECKMAN, Appellees. |
| Court | Texas Court of Appeals |
David W. Holman, The Holman Law Firm, P.C., Jeffrey J. Messock, Messock & Walton, Houston, TX, for Appellants.
Lionel M. Schooler, Jason T. Martin, Jackson Walker, LLP, Houston, TX, for Appellees.
Panel consists of Justices JENNINGS, KEYES, and HIGLEY.
In this breach of contract suit, appellants, B & W Supply, Inc. and Weston Wyatt, Individually (collectively referred to as B & W) challenge the trial court's order granting judgment notwithstanding the verdict (JNOV) in favor of appellees, Lawrence and Diane Beckman. In three issues on appeal, B & W argues that the trial court improperly granted the Beckmans' JNOV when evidence existed to support the jury's findings that (1) the Beckmans breached the contract; (2) B & W Supply was entitled to lost profits; and (3) B & W Supply was entitled to reasonable and necessary attorney's fees. In their cross-appeal, the Beckmans argue that the trial court erred in (1) disregarding the jury's response excusing B & W's breach because the evidence at trial was legally insufficient to support a finding that B & W was excused from its obligation to perform the contract and (2) not submitting their DTPA claim to the jury.
We reverse the JNOV.
B & W and the Beckmans entered into a contract for B & W to perform remodeling work in several rooms of the Beckmans' home for $60,000. The contract called for various progress payments throughout the project. By January 9, 2006, the Beckmans had paid B & W $30,000 and half of the project remained to be finished. Around this time a dispute arose leading B & W to cease all work on the project. The Beckmans sued B & W for breach of contract, Deceptive Trade Practices Act1 violations, conversion, breach of fiduciary duty, violations of Chapter 162 of the Texas Property Code,2 and attorney's fees. B & W counterclaimed for lost profits. The parties presented conflicting evidence on whether the Beckmans fired B & W or whether B & W walked off the job.
At the conclusion of the trial, the jury found (1) in questions one and two that B & W failed to perform the contract but that such failure was excused; (2) in questions three and four that the Beckmans failed to perform the contract and that such failure was not excused; (3) in question six that B & W was entitled to $9,000 in damages; and (4) in question eight that B & W was entitled to attorney's fees in the amounts of (a) $25,000 for trial, (b) $12,500 for an appeal to the court of appeals, and (c) $10,000 to an appeal to the Supreme Court of Texas.
B & W filed a motion to enter judgment on the verdict, and the Beckmans filed a motion for JNOV contending that "B & W did not offer legally sufficient evidence of its cost of completion, or even consider or present evidence about the actual expenses it had incurred to date." The Beckmans also contended that B & W had presented legally insufficient evidence that the Beckmans breached the contract and no evidence that B & W was excused from performance.
In its final judgment, the trial court granted in part the Beckmans' motion for JNOV and denied B & W's motion to enter judgment on the verdict. The trial court disregarded the jury's answers to questions three (the Beckmans' breach), six (B & W's lost profit damages), and eight (B & W's attorney's fees), and held that B & W would take nothing from the Beckmans on B & W's counterclaim, that the Beckmans would take nothing from B & W, and that each party would pay its attorney's fees. Both parties filed a notice of appeal.
A trial court may disregard a jury's findings and grant a motion for judgment notwithstanding the verdict only when a directed verdict would have been proper. See TEX.R. CIV. P. 301; Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.1991); see also Prudential Ins. Co. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex.2000) (); Cain v. Pruett, 938 S.W.2d 152, 160 (Tex. App.-Dallas 1996, no writ) (directed verdict proper when evidence reflects that no other verdict can be rendered and moving party is entitled to judgment as a matter of law). A JNOV should be granted when the evidence is conclusive and one party is entitled to recover as a matter of law or when a legal principle precludes recovery. Morrell v. Finke, 184 S.W.3d 257, 290 (Tex.App.-Fort Worth 2005, pet. denied); see also United Parcel Serv., Inc. v. Tasdemiroglu, 25 S.W.3d 914, 916 n. 4 (Tex. App.-Houston 14th Dist. 2000, pet. denied) ().
An appellate court reviews a JNOV under a no-evidence standard of review. See Garton v. Rockett, 190 S.W.3d 139, 144 (Tex.App.-Houston 1st Dist. 2005, no pet.). That is, we will affirm only if there is no evidence to support an issue, or conversely, if the evidence establishes an issue as a matter of law. See Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990); Garton, 190 S.W.3d at 144. To determine whether there is no evidence to support the jury's finding, "we must view the evidence in a light that tends to support the finding of disputed fact and disregard all evidence and inferences to the contrary." Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.2003). If more than a scintilla of evidence supports the jury's finding, "the jury's verdict, and not the trial court's judgment must be upheld." Id. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004) (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)). Evidence that is "so weak as to do no more than create a mere surmise," however, is no more than a scintilla and, thus, no evidence. Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)).
In its first issue, B & W argues that the trial court improperly granted the Beckmans' JNOV when evidence existed to support the jury's findings that the Beckmans failed to perform the contract.
In question one, the jury was asked, "Did the Beckmans fail to perform the contract?" The jury answered, "yes." In its final judgment, the trial court stated that it disregarded the jury's answer.
The essential elements of a breach of contract claim are (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained as a result of the breach. Valero Marketing & Supply Co. v. Kalama Int'l, 51 S.W.3d 345, 351 (Tex.App.-Houston 1st Dist. 2001, no pet.). "A breach of contract occurs when a party fails or refuses to do something he has promised to do." Mays v. Pierce, 203 S.W.3d 564, 575 (Tex. App.-Houston 14th Dist. 2006, pet. denied).
B & W contends that sufficient evidence supports the jury's finding that the Beckmans breached the contract. Specifically, B & W contends that the Beckmans breached in two ways: (1) Mr. Beckman ordered B & W Supply off his property and (2) the Beckmans did not provide B & W with the third $15,000 progress payment.
Wyatt testified that the job started on December 1, 2005, it was "going great," and he was making money. Wyatt further testified that he had a conversation with Mr. Beckman on January 9 in which Mr. Beckman asked what he was making on the project. Wyatt told him 30%, and Mr. Beckman said that was outrageous. Mr. Beckman then said that Wyatt needed to give him line-item approval on everything from then on, to which Wyatt replied that he could not. Wyatt then testified that Mr. Beckman Wyatt responded, "I'm not going to come back." Wyatt then called his subcontractors and told them that he had been fired. Wyatt testified that Mr. Beckman called him dishonest and that Mr. Beckman gave him an ultimatum that "if I didn't go with line-item approval, that he did not want me to come back to the job." After January 10, 2006, Wyatt did not return to the project. Wyatt also testified that Mrs. Beckman never offered to pay the third draw. He stated that when he talked to her on January 10 or 11, she never mentioned anything about the third draw, which was due.
Mrs. Beckman testified that "we did indeed agree to advance him the $15 thousand in those four incremental payments." Mrs. Beckman testified that on January 4, they were happy with B & W's work. She also testified that the third draw had been requested before the meeting that was scheduled for January 10. Mrs. Beckman told Wyatt that she would give him the third draw at the meeting, but the meeting never occurred. She admitted that when she talked to Wyatt on January 11, she did not tell him that she would give him the third draw. She further admitted that she asked Wyatt for his subcontractors' phone numbers. She agreed with Wyatt's counsel that if she called the subcontractors directly, she would not have to pay the contractor's fees.
From the evidence presented, we conclude that the jury could have reasonably concluded that the Beckmans breached the contract by firing B & W and by not paying the third draw. Accordingly, we hold that the trial court erred in disregarding the jury's findings in question three on whether the Beckmans failed to perform the contract.3
In its second issue, B & W argues that the trial court...
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