Bowen v. Robinson
Decision Date | 03 August 2006 |
Docket Number | No. 01-05-00605-CV.,01-05-00605-CV. |
Citation | 227 S.W.3d 86 |
Parties | Max BOWEN, Individually and d/b/a Max Bowen Enterprises, Appellant, v. Roy B. ROBINSON, Appellee. |
Court | Texas Court of Appeals |
Charles W. Kelly, Kelly, Sutter, & Kendrick, Houston, TX, for Appellant.
Phillip R. Livingston, Deanna H. Livingston, Livingston & Livingston, L.L.C., Houston, TX, Russell Burwell, Burwell, Burwell & Nebout, Texas City, TX, for Appellee.
Panel consists of Justices TAFT, HIGLEY, and BLAND.
Appellant, Max Bowen, individually and d/b/a Max Bowen Enterprises ("Bowen"), appeals from a judgment rendered upon a jury's award of damages for breach of contract in favor of appellee, Roy B. Robinson. We determine (1) whether the trial court abused its discretion by submitting Robinson's breach-of-contract claim to the jury because the cause of action was allegedly unpleaded; (2) whether Robinson's judicial admissions barred his recovery under his breach-of-contract claim; and (3) whether the trial court erred by entering judgment awarding breach-of-contract damages. We affirm the trial court's judgment.
In 2001, Bowen and Robinson had discussions about constructing a barge canal on Bowen's land. Bowen owned 300 acres of waterfront property in San Leon, Texas, near Dickinson Bay. Robinson had expertise in constructing barge canals and owned equipment to complete the project. Bowen and Robinson discussed Robinson's building the canal with his equipment, expertise, and labor in exchange for a share of the proceeds from the sale of Bowen's 80 acres of improved property near Dickinson Bay ("the property"). On May 2, 2001, Donald Lancon, Bowen's project manager, submitted an application to the United States Department of the Army Corps of Engineers ("USDACE") on behalf of Bowen for the construction of the barge canal.1 In December 2001, Lancon filed an application with the Texas General Land Office ("TGLO") for permission to cross Texas land when the USDACE permit was granted. In a letter dated February 26, 2002, the USDACE issued a permit for construction of the barge canal. On March 11, 2002, Lancon sent notice to the USDACE that the barge canal work had been started under the USDACE permit.
From December 2001 through April 2002, Robinson and his team were on the property, preparing the project site for the barge canal excavation by constructing an access road and scraping topsoil. Lancon was on the property daily while Robinson continued work on the property. On April 21, 2002, Lancon evicted Robinson from the property. By that point, Robinson had constructed an access road, prepared the site for excavation, fully constructed a dam, and started excavating the barge canal on the dry side of the dam.
Robinson testified that he and Bowen had agreed that, in exchange for Robinson's digging the channel, disposing of the dirt, and building a canal, Bowen would pay Robinson 40 percent of the profit from selling or leasing the property. Bowen estimated that the market value of the property when the barge canal was completed would be between $80,000 to $100,000 per acre. He also testified that he had expended approximately one million dollars in completing construction of the barge canal for the property. Robinson based his damages calculation on the expected benefit of his agreement with Bowen. Robinson testified that his range of benefit-of-the-bargain damages was from $887,000 to $1,596,000. The jury awarded Robinson breach-of-contract damages in the amount of $841,528 and quantum meruit damages in the amount of $46,643.50. The trial court entered judgment on Robinson's breach-of-contract cause of action.
In his first point of error, Bowen argues that "Robinson's pleaded legal theories do not support the judgment." In his fifth point of error, Bowen argues that "the court erred in submitting jury questions 1 and 2 because there was no pleading to support those issues."2 In his sixth point of error, Bowen argues that "the trial court erred by entering judgment because it is unsupported by the pleadings." Because Bowen's first, fifth, and sixth points of error are related, we consider them together.
Specifically, Bowen contends that, during trial, Robinson "changed his story" from a claim of implied partnership to a claim that Robinson's contract was with Bowen, not the alleged partnership. Bowen contends that Robinson changed theories because Robinson belatedly realized that his claim that there was an implied partnership to which Bowen had orally agreed to transfer land was legally unenforceable under the statute of frauds.
We conclude that Robinson's petition was sufficient to give Bowen notice that the cause of action was for breach of an oral agreement with Bowen to construct a barge canal. The object and purpose of pleading is to give fair and adequate notice to the party being sued of the nature of the cause of action asserted against him. Castleberry v. Goolsby Bldg. Corp., 617 S.W.2d 665, 666 (Tex.1981). "The purpose of this rule is to give the opposing party information sufficient to enable him to prepare a defense." Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982). The test of fair notice is "whether an opposing attorney of reasonable competence, with the pleadings before him, can ascertain the nature and the basic issues of the controversy and the testimony probably relevant." State Fid. Mortg. Co. v. Varner, 740 S.W.2d 477, 479 (Tex.App.-Houston [1st Dist.] 1987, writ denied) (citation omitted). The "fair notice" requirement of Texas pleading relieves the pleader of the burden of pleading evidentiary matters with meticulous particularity. Id. at 480. In his live petition, Robinson asserted a claim entitled "Breach of Contract — Partnership," which provided,
8. ROY B. ROBINSON brings this cause of action for breach of contract against MAX BOWEN, individually and d/b/a MAX BOWEN ENTERPRISES and respectfully shows the Court as follows.
9. At the specific request, instance and urging of MAX BOWEN, a partnership was created and formed by and between MAX BOWEN, individually and d/b/a MAX BOWEN ENTERPRISES and ROY B. ROBINSON. As a result of that partnership, ROY B. ROBINSON acquired real, beneficial and present interests in all property contributed to the partnership including real property. In April 2002, MAX BOWEN, sought to unilaterally terminate the partnership by evicting ROY B. ROBINSON from partnership property and denying the existence of a partnership any contractual agreement with ROY B. ROBINSON.
In his live petition, Robinson also asserted a claim entitled "Breach of Contract — Construction," which provided,
11. ROY B. ROBINSON brings this cause of action for breach of contract against MAX BOWEN, individually and d/b/a MAX BOWEN ENTERPRISES and respectfully shows the Court as follows.
12. Beginning on or about December 2001, the partnership consisting of MAX BOWEN retained the services of ROY ROBINSON for the purpose of constructing a slip on real property owned for the benefit of the partnership. From December 2001, through April 2002, ROY ROBINSON diligently performed services and provided valuable goods and materials for the construction of the slip. However, prior to completion of the slip, MAX BOWEN unilaterally evicted ROY ROBINSON from the partnership property and informed that his services were no longer required for the construction of the slip. During the period of construction, ROY ROBINSON provided equipment, materials, labor and expertise in an aggregate amount exceeding the minimum jurisdictional limits of this Court. The improper termination of the contract to excavate and complete the slip caused ROY ROBINSON actual damages for which he seeks recovery by this action.
Robinson's petition was sufficient to give Bowen notice that Robinson was asserting a cause of action for breach of an oral agreement to construct a barge canal in addition to a breach-of-partnership claim. The trial court thus did not err in submitting jury questions one and two, and Robinson's pleadings supported the judgment rendered.
We overrule Bowen's first, fifth, and sixth points of error.
In his second point of error, Bowen argues that "Robinson's judicial admissions bar his claims for breach of construction contract."
As to liability, Bowen argues that Robinson judicially admitted three times that the contract was with the partnership, not Bowen;3 therefore, the jury's affirmative answer to whether Robinson and Bowen entered an agreement cannot stand.
Robinson's statements were not judicial admissions. A judicial admission is a formal waiver of proof that dispenses with the production of evidence on an issue. Lee v. Lee, 43 S.W.3d 636, 641 (Tex. App.-Fort Worth 2001, no pet.). A judicially admitted fact is established as a matter of law, and the admitting party may not dispute it or introduce evidence contrary to it. Id.; see Roosevelt v. Roosevelt, 699 S.W.2d 372, 374 (Tex.App.-El Paso 1985, writ dism'd). This rule is based on the public policy that it would be absurd and manifestly unjust to permit a party to recover after he has sworn himself out of court by a clear and unequivocal statement. U.S. Fid. & Guar. Co. v. Carr, 242 S.W.2d 224, 229 (Tex.Civ.App.-San Antonio 1951, writ ref'd); Lee, 43 S.W.3d at 641; Roosevelt, 699 S.W.2d at 374. A judicial admission must be a clear, deliberate, and unequivocal statement, and it occurs when an assertion of fact is conclusively established in live pleadings, making the introduction of other pleadings or evidence unnecessary. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex.2000).
Here, Robinson asserted in his petition claims for breach of contract of a partnership agreement and, alternatively, breach of contract of a construction contract. Rule 48 of the Texas Rules of Civil Procedure allows a claimant to plead in...
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