Argee Corp. v. Solis
| Decision Date | 12 October 1995 |
| Docket Number | No. 09-93-121,09-93-121 |
| Citation | 932 S.W.2d 39 |
| Parties | The ARGEE CORPORATION and Seaboard Surety Company, Appellants v. Frank SOLIS, individually and d/b/a Allied Steel General Contractors, Appellee. CV. |
| Court | Texas Court of Appeals |
This case arises out of the construction of three prisons in Snyder, Dayton, and Woodville, Texas. In October 1989, the Argee Corporation, now known as Green International, Inc., filed suit against Frank Solis d/b/a Allied Steel General Contractors and other defendants who were either never served with process or dropped as defendants in the course of the litigation. In this opinion we shall reference appellant as "Argee" and appellee shall be referred to as "Solis."
Factually, Argee was the general contractor on the three prison projects located near Snyder, Dayton, and Woodville, Texas. Solis was a subcontractor on these three projects. Pursuant to the three subcontract agreements, Solis agreed to provide the labor necessary for the steel erection and a portion of the concrete work. According to Solis, appellee was forced to abandon the Dayton and Woodville projects when Argee failed to make timely payments. Argee initiated suit against Solis making claims of breach of contract, fraud and other claims not addressed in this appeal. Solis counterclaimed against Agree for breach of contract, conversion, fraud and other claims which are not material to this appeal.
During June and July of 1992, trial by jury was held. This jury reached a unanimous verdict, the overall effect of which favored Solis. On January 22, 1993, the trial court, disregarding numerous findings by the jury, entered judgment that Solis recover actual damages and prejudgment interest from Argee in the sum of $169,081.00, and actual damages and prejudgment interest against Seaboard, jointly and severally with Argee, in the amount of $59,694.00. Both Argee and Solis have perfected appeal from this judgment.
Argee brings sixteen points of error while Solis, as cross-appellant, brings twenty-four points of error.
In Jury Question No. 3, the jury determined that Argee breached its subcontract with Solis in several regards, pertaining to the Snyder Project and the Dayton Project. In Question No. 4, the jury determined that Solis did not breach his subcontract with Argee regarding the Snyder and Dayton Projects. On appeal, Argee takes no issue with these jury findings. At best and most, it appears that Argee, via this appeal, is attacking the jury's failure to excuse its respective breaches of the subcontract, which the jury refused to do. Furthermore, Argee's complaint on the jury's failure to find its respective breaches as having been "excused," is limited to the Dayton Project, even though the jury determined that Argee had breached both the Snyder and Dayton Projects. Appellant brings no point of error assailing the jury's damage awards respecting the Snyder Project.
Appellants' point of error one contends that the trial court erred in overruling Argee's Motion for Directed Verdict on the issue of release, and Argee and Seaboard's Motion for Judgment Notwithstanding the Verdict and Motion to Disregard the Jury's Response to Question No. 7, because the waiver of lien releases executed by Solis bar portions of the damages awarded to Solis as a matter of law.
Both appellant and appellee suggest that the question before this Court is a novelty in that no Texas authorities have construed the effect of an executed waiver of lien upon claims for extra work. Both appellant and appellee cite numerous non-Texas authorities supportive of their respective positions. Although a pursuit of this interesting legal question would be of present and future interest, we decline the chase. It appears to this Court that an overruling of appellants' point of error one is justified through simple application of contract law, bearing in mind that appellants have made no contest to the factual determination that Argee not only breached its subcontract with Solis on the Snyder and Dayton Projects but further that such breach preceded the performance of any of the extra work that was not authorized in writing or covered by written change orders. Our perception of appellants' point of error one is that appellants now seek to benefit from Argee's own unexcused breach of the respective subcontracts. In more graphic terms, Argee now seeks redress through strict legal interpretation of the subcontracts which Argee breached. Under Texas law, when a party breaches a construction contract, that party relinquishes its contractual procedural rights concerning claims for additional costs. Shintech, Inc. v. Group Constructors, Inc., 688 S.W.2d 144, 151 (Tex.App.--Houston [14th Dist.] 1985, no writ); see also Tribble & Stephens Co. v. Consol. Serv., 744 S.W.2d 945 (Tex.App.--San Antonio 1987, writ denied); North Harris County Junior College Dist. v. Fleetwood Const. Co., 604 S.W.2d 247, 254 (). In Shintech, Inc., our Fourteenth Court of Appeals affirmed the trial court's judgment and refused to enforce the breaching party's contention that the claimant had failed to timely comply with the written notice requirements of a claim for additional cost. Texas law further prevents a breaching party from enforcing favorable provisions contained in the very contract it breached. Baker Marine Corp. v. Weatherby Engineering Co., 710 S.W.2d 690, 696 (Tex.App.--Corpus Christi 1986, no writ); Sterling Projects, Inc. v. Fields, 530 S.W.2d 602, 606 (Tex.Civ.App.--Waco 1975, no writ). Appellants' point of error one is overruled.
Appellants' points of error two through six contend trial court error in overruling Argee's and Seaboard's Motion for Judgment Notwithstanding the Verdict, Motion to Disregard Jury Findings, and Motion for New Trial concerning the jury's answers to Question Nos. 12, 13 and 22. (E)(b). Appellant contends that the jury's answers to Question Nos. 12 and 13 regarding Argee's failure to pay the June 1989 payment was, as a matter of law, excused and that the jury's answers are unsupported by any evidence, or against the great weight and preponderance of the evidence.
For clarity, we set forth Jury Question Nos. 12, 13 and 22. (E)(b):
Were any of the following failures, if any, to comply with the Dayton Subcontract by Solis excused by Argee's previous failure, if any, to pay the June 1989 payment to Solis?
Answer "Yes" or "No" to each category:
A. Solis' failure, if any, to complete his work on the Dayton Prison Project.
B. Solis' failure, if any, to compensate his employees on the Dayton Prison Project in accordance with the Dayton Subcontract.
C. Solis' failure, if any, to pay in full his material suppliers.
D. Solis' failure, if any, to show up for work on or after August 4, 1989.
If your answer to any portion of Question 12 is "Yes," then answer the following question. Otherwise do not answer the following question.
Was the failure by Argee, if any, to pay the June 1989 payment to Solis, on the Dayton Project, excused by reason of Solis' previous failure, if any, to perform any of the following:
A. Execute and furnish all waivers of lien, releases, affidavits and statements from material suppliers required by Argee;
B. Compensate his employees on the Dayton Project in accordance with the appropriate Prevailing Wage Schedule, deduct taxes and insurance from payments to his employees on the Dayton Project, or prepare and submit certified payrolls to Argee; or
C. Pay in full his material suppliers.
It is not an excuse in favor of Argee, if, prior to the due date of the June 1989 payment, Argee waived the listed requirements of Solis.
A waiver is an intentional surrender of a known right or intentional conduct inconsistent with claiming the right.
Answer "Yes" or "No."
Conditions precedent to an obligation to perform are acts or events that are to occur after the contract is made and that must occur before there is a right to immediate performance and before there can be a breach of contractual duty.
The conditions precedent to Argee's obligations are as follows:
. . . . .
E. In order for Argee to have any obligation to compensate Allied, Allied must have executed or furnished all waivers of lien, releases, affidavits, and statements from material suppliers required by Argee.
. . . . .
E. Has Allied executed or furnished all waivers of lien, releases, affidavits, and statements from material suppliers required by Argee on the Project?
Answer: Yes
Jury Question Nos. 12 and 13 go to the very heart of the matter by inquiring whether the extraneous conduct of the parties excused literal performance of the subcontract agreement. In answering Jury Question 12, a question upon which appellee Solis, bore the burden of proof, the jury determined that Solis' failure to complete work on the Dayton Project; compensate his employees on the Dayton Project in accordance with the subcontract; failure to pay in full his material suppliers; and failure to show up for work on or after August 4, 1989, was excused by Argee's previous failure to pay the June 1989 payment to Solis. Further, the jury responding to Question 13, failed to find that the failure by Argee to pay the June 1989 payment to Solis was excused by reason of Solis' previous contractual failings, further amplifying the jury's awareness, from the evidence, that the parties' course of conduct deviated from the written intent...
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