Barnett v. Coppell North Texas Court, Ltd.

• Decision Date: 18 December 2003
• Docket Number: No. 05-02-01163-CV.,05-02-01163-CV.
• Parties: Barney BARNETT d/b/a Superior Built Construction, Appellant, v. COPPELL NORTH TEXAS COURT, LTD., NTC Lewis, Inc., North Texas Gymnastics Academy, Inc., David J. Lewis, and Wanda M. Lewis, Appellees.
• Court: Texas Court of Appeals

123 S.W.3d 804

Barney BARNETT d/b/a Superior Built Construction, Appellant, v. COPPELL NORTH TEXAS COURT, LTD., NTC Lewis, Inc., North Texas Gymnastics Academy, Inc., David J. Lewis, and Wanda M. Lewis, Appellees.

No. 05-02-01163-CV.

Court of Appeals of Texas, Dallas.

December 18, 2003.

Rehearing Overruled January 29, 2004.

Steven E. Kennedy, McGuire, Craddock & Strother, P.C., Jeffrey Robert Sandberg, Dallas, for Appellant.

Richard E. Schellhammer, Robert H. Dawson, Heather Farris Bennett, Goins Underkofler Crawford & Langdon, Dallas for Appellee.

Mark L. Sax, Sax & Associates, P.C., Houston, Russell Edward Clincage, Pratt & Sanderford, P.C., Arlington, for Intervenor.

Before Justices WHITTINGTON, O'NEILL, and LANG.

OPINION

Opinion by Justice WHITTINGTON.

Barney Barnett d/b/a Superior Built Construction appeals the trial court's judgment entered following a jury verdict, in favor of Coppell North Texas Court, Ltd. ("CNTC"), NTC Lewis, Inc. ("NTC"), North Texas Gymnastics Academy, Inc. ("NTGA"), David J. Lewis, and Wanda M. Lewis. In nineteen issues, Barnett contends (i) the evidence is legally and factually insufficient to support the jury's verdict, (ii) he established his claims as a matter of law and the jury's failure to find in his favor was against the great weight and preponderance of the evidence, (iii) the trial judge erred in denying his requested questions and instructions and overruling his objections to the jury charge, and (iv) he was entitled to damages and attorney's fees. We affirm the trial court's judgment.

Background

David Lewis owned NTGA, a successful gymnastics instruction business. NTGA was the sole source of income for Lewis and his wife, Wanda. Because business was successful, the Lewises decided to expand and build their own facility. They formed CNTC. NTC, another entity owned by Lewis, was CNTC's general partner. In the spring of 1998, the Lewises contracted with Barnett to build their new facility, the North Texas Family & Sports Complex ("the Project"). Lewis secured a loan from Legacy Bank ("the Bank") on the Project. Barnett began construction in the summer of 1998 and left the job during the summer of 1999.

On January 10, 2000, the Bank sued appellees and Barnett. During the summer of 2000, the Bank foreclosed on the property. On April 19, 2001, appellees filed a cross-claim, suing Barnett. After filing an answer, Barnett filed cross-claims against appellees. The Bank's claims were resolved and severed from the underlying case. This case, involving Barnett and appellees, proceeded to a jury trial, after which the trial judge entered judgment in favor of appellees. This appeal followed.

Standards of Review

Barnett raises several issues challenging whether the evidence adduced at trial supports the jury's answers to questions in the jury charge. A party who challenges the legal sufficiency of the evidence to support an issue upon which he did not have the burden of proof at trial must demonstrate on appeal that there is no evidence to support the adverse finding. Kroger Tex. Ltd. P'ship v. Suberu, 113 S.W.3d 588, 595-96 (Tex.App.-Dallas 2003, pet. filed); Luce v. Interstate Adjusters, Inc., 26 S.W.3d 561, 566 (Tex.App.-Dallas 2000, no pet.) (citing Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983)). When reviewing a "no evidence" point, we consider only the evidence and inferences supporting the finding and disregard all evidence and inferences to the contrary. See Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex.2002); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). If there is any evidence of probative force to support the jury's finding, the "no evidence" issue must be overruled and the finding upheld. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex.1997).

When challenging the factual sufficiency of the evidence supporting an adverse finding upon which the appealing party did not have the burden of proof, the appellant must demonstrate that there is insufficient evidence to support the adverse finding. Dallas County v. Holmes, 62 S.W.3d 326, 329 (Tex.App.-Dallas 2001, no pet.) (citing Croucher, 660 S.W.2d at 58). In reviewing a factual sufficiency challenge, we consider and weigh all the evidence in support of and contrary to the finding and will set aside the verdict only if the evidence supporting the jury finding is so weak as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We note that, in making this review, we are not a fact finder. Thus, we will not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached upon review of the evidence. See Holmes, 62 S.W.3d at 329; Tex. Farmers Ins. Co. v. Cameron, 24 S.W.3d 386, 392 (Tex.App.-Dallas 2000, pet. denied). The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. Eureste v. Comm'n for Lawyer Discipline, 76 S.W.3d 184, 195 (Tex.App.-Houston [14th Dist.] 2002, no pet.).

In contrast, an appellant attacking the legal sufficiency of an adverse jury finding on which he had the burden of proof must demonstrate that the evidence establishes, as a matter of law, all vital facts in support of the finding. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001) (per curiam). In reviewing such a claim, we first examine the record for evidence supporting the jury's finding, while ignoring all evidence to the contrary. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). If there is no evidence to support the fact finder's answer, only then will we review the entire record to assess whether the contrary proposition was established as a matter of law. See Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex.1991); see also Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982) (because there is evidence of probative force which supports trial court's adverse finding, evidence which supports appellant's cause is not reached).

If an appellant challenges a jury finding regarding an issue upon which the appellant had the burden of proof, he must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem., 46 S.W.3d at 241. In reviewing this challenge, we consider all of the evidence in determining whether the finding is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. See In re King's Estate, 150 Tex. 662, 665, 244 S.W.2d 660, 661 (1951). We may reverse and remand for a new trial if we conclude the jury's failure to find is against the great weight and preponderance of the evidence. See Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex.1988); Croucher, 660 S.W.2d at 58.

Breach of Contract

In his first, second, and third issues, Barnett complains of the jury's findings on the breach of contract claims. In his first issue, he claims he established as a matter of law that he was entitled to payment for work he performed on the Project and that the jury's finding of no damages on Question 10 of the jury charge was against the great weight and preponderance of the evidence.¹ In his second issue, Barnett argues (i) there is no or insufficient evidence to support the jury's finding that CNTC's breach was excused, and (ii) he established as a matter of law that his breach was excused and the jury's finding to the contrary on Question 2 of the jury charge was against the great weight and preponderance of the evidence.

The elements of a breach of contract claim are (i) the existence of a valid contract between the plaintiff and defendant; (ii) the plaintiff performed; (iii) the defendant breached the contract; and (iv) the plaintiff was damaged as a result of the breach. Williams v. First Tenn. Nat'l. Corp., 97 S.W.3d 798, 802 (Tex.App.-Dallas 2003, no pet.). A breach of a contract by one party excuses performance by the other party. Mead v. Johnson Group, Inc., 615 S.W.2d 685, 689 (Tex. 1981). By attacking the legal sufficiency of adverse findings on issues on which he had the burden of proof (the jury's award of zero damages and the jury's finding that his breach was not excused), Barnett must demonstrate the evidence establishes, as a matter of law, all vital facts in support of the issue. See Dow Chem., 46 S.W.3d at 241. We first examine the record for evidence that supports the jury's findings, while ignoring all evidence to the contrary. Only if there is no evidence to support the jury's findings do we then examine the entire record to determine if the contrary proposition is established as a matter of law. Dow Chem., 46 S.W.3d at 241. With respect to his "factual sufficiency challenge," we consider all of the evidence and determine whether the finding is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. See In re King's Estate, 244 S.W.2d at 661. When addressing his complaint regarding the jury's finding that CNTC's breach was excused, we examine all favorable evidence in the record to see if any evidence of probative force supports the jury's findings; we then weigh all the evidence in support of and contrary to the finding and set aside the finding only if the evidence supporting the jury finding is so weak as to be clearly wrong and unjust. See ACS Investors, 943 S.W.2d at 430; Cain, 709 S.W.2d at 176.

Question 1 asked the jury to determine who, if anyone, failed to comply with the construction contract. In response, the jury found that both CNTC and Barnett failed to comply. Question 2 asked the jury to determine if any party found to have failed to comply with the construction contract was excused. The jury found CNTC's failure to comply was excused. Barnett challenges this finding as well as the jury's failure to find his breach was excused; he does not challenge the jury's finding that he breached the contract.

The evidence shows...