Brannan Paving GP, LLC v. Pavement Markings, Inc.
| Decision Date | 25 July 2013 |
| Docket Number | 13–11–00013–CV.,Nos. 13–11–00005–CV,s. 13–11–00005–CV |
| Citation | 446 S.W.3d 14 |
| Parties | BRANNAN PAVING GP, LLC d/b/a Brannan Paving Company, Appellant, v. PAVEMENT MARKINGS, INC., San Juan Insurance Agency Inc. d/b/a Valley Insurance Providers and Leicht General Agency, Appellees. |
| Court | Texas Court of Appeals |
Brian C. Miller, Christopher Andrew Lowrance, Royston, Rayzor, Vickery & Williams, Corpus Christi, Will W. Pierson, Scott R. Taylor, Royston, Rayzor, Vickery & Williams, San Antonio, for Appellant.
Joseph L. Segrato, Thornton, Biechlin, Segrato, Reynolds & Guerra, McAllen, David W. Green, Darrell L. Barger, Richard B. Waterhouse Jr., Hartline, Dacus, Barger, Dreyer & Kern, Corpus Christi, Gregory W. Marcum, Leah A. Greene, Kroger & Frisby, Houston, Vaughan Waters, San Antonio, Kathryn F. Green, Corpus Christi, for Appellees.
Before Justices RODRIGUEZ, BENAVIDES, and PERKES.
This is an appeal from a breach of contract case between a contractor, Brannan Paving GP, L.L.C., d/b/a Brannan Paving Company (“Brannan Paving”), and its subcontractor, Pavement Markings, Inc. (“Pavement Markings”). Brannan Paving claimed that Pavement Markings breached the subcontract by not obtaining additional insured coverage. Pavement Markings joined San Juan Insurance Agency, Inc., d/b/a Valley Insurance Providers (“VIP”), who in turn joined Leicht General Agency (“LGA”). Brannan Paving subsequently asserted negligence claims against VIP and LGA.1
Brannan Paving appeals the trial court's take-nothing judgment, contending by four issues, which we have reordered, that the trial court: (1) erred by including a waiver instruction in Question Number 1, a breach of contract question; (2) improperly rendered judgment because the jury's answer to Question Number 1 regarding breach of contract and waiver is not supported by legally sufficient evidence; (3) erred by not granting a new trial because the jury's answer to Question Number 1 regarding breach of contract and waiver is not supported by legally and factually sufficient evidence; and (4) erred by granting LGA's motion to disregard the jury's answers to jury Question Numbers 3 and 4 regarding negligence. Pavement Markings, as cross-appellant, challenges the trial court's take-nothing judgment on its claim for attorney's fees against VIP, arguing by one issue that the trial court erred in disregarding the jury's answers to Question Numbers 5 and 6 regarding deceptive trade practices. We reverse and remand.
On March 5, 2004, Brannan Paving and Pavement Markings entered into an agreement related to a highway construction project whereby Pavement Markings contracted to perform road striping services for the project, which included a section of U.S. Highway 77 near Sinton, Texas. According to Juan Villescas Jr., the president of Pavement Markings, the company commenced operations on that section of highway on “the next day” after signing the contract. The following excerpt from the contract became the focus of the lawsuit:
It is undisputed that Paving Markings never supplied Brannan Paving with certified copies of the applicable policies.
On May 16, 2004, there was a single-vehicle traffic accident on the section of U.S. Highway 77 on which Pavement Markings had been working, and one of the passengers in the vehicle was killed and the other two occupants were injured. A negligence lawsuit was brought against Brannan Paving and Pavement Markings for joint and several liability. According to the testimony of Waylan Justin Brannan Jr., the owner of Brannan Paving, Brannan discovered after the accident that Pavement Markings had not added Brannan Paving as an additional insured, and Brannan Paving brought a cross-claim for breach of contract against Pavement Markings for failing to “defend, indemnify, hold harmless and name Brannan Paving GP, L.L.C. as an additional insured.”
Pavement Markings then joined its surplus lines retail agent, VIP, asserting causes of action for VIP's negligence in failing to procure insurance, DTPA violations, fraud, breach of fiduciary duty, negligent and false misrepresentation, and breach of contract. VIP, in turn, joined LGA, the surplus lines managing general agent, seeking contribution and indemnity in the event Pavement Markings prevailed on its third party claims. VIP alleged that LGA was negligent for failing to provide an additional insured endorsement as requested by VIP. VIP also moved to designate the surplus lines carrier, “Evanston Insurance Company and Markel Southwest Underwriters, Inc.” (“Evanston”), as a responsible third party, and the trial court granted the motion.
Brannan Pavings and Pavement Markings settled the underlying negligence suit against them.2 Brannan Paving filed its own cross-claim against VIP and LGA “to recover all damages proximately caused by VIP's and LGA's negligence in failing to provide the requested blanket additional insured endorsement to Pavement Markings's general liability policy, including amounts paid to settle claims against [Pavement Markings], reasonable costs of defense or attorney fees, litigation costs, and such further relief deemed appropriate ....” The trial was bifurcated, and the issues to be covered by the first trial were limited to the alleged breach of contract and negligence claims, thus leaving aside for a second trial other issues, such as the reasonableness of the settlement. During the trial, the parties agreed to separately try the attorney-fee issues to the trial court after the jury rendered a verdict.
The first question submitted to the jury asked whether Pavement Markings had breached the contract. The first question also included an instruction on waiver. The jury responded, “No.” Based on the jury's response to the first question, LGA and VIP each moved to disregard the answers to the other jury questions, which dealt with compensation resulting from a breach, whether the negligence of any of the named parties, including Evanston, caused the “occurrence in question,” the percentages of responsibility attributable to each party listed if negligence was found, whether VIP violated the DTPA in its interactions with Pavement Markings, and the compensation due Pavement Markings in the event the jury found DTPA violations. The trial court entered a take-nothing judgment against Brannan Paving and Pavement Markings on the grounds that “the jury's answer to Question No. 1 precludes any finding of liability” in their favor. This appeal followed.
Brannan Paving contends the trial court improperly rendered judgment based on the jury's answer to the following question:
The jury answered “No.”
By two issues, Brannan Paving argues that the trial court erred because the evidence was legally and factually insufficient to support: (1) the trial court's inclusion of the waiver instruction; and (2) a jury finding that Pavement Markings did not breach the subcontract. By a third, related issue, Brannan Paving asserts that because the evidence was legally and factually insufficient to support the jury's answer to Question Number 1, the trial court also erred in denying its motion for new trial.
The Texas procedural rules “govern the preservation requirements for raising a jury charge complaint on appeal and require the complaining party to make an objection before the trial court.” Thota v. Young, 366 S.W.3d 678, 689 (Tex.2012) ; see Tex.R. Civ. P. 274 ; Tex.R.App. P. 33.1. At trial, Brannan Paving timely objected to the inclusion of waiver in the jury question on the grounds that “I [Brannan Paving's attorney] don't think that the proof in this case is sufficient to support a waiver argument.” The trial court overruled the objection. On appeal, VIP and LGA argue that Brannan Paving's “no evidence” objection failed to preserve a complaint as to the form of the question. VIP and LGA contend that Brannan Paving should have requested a separate question on excuse, which includes waiver, and that Brannan Paving's failure to do so does not comply with the preservation requirement of Texas Rule of Civil Procedure 278. Rule 278 provides in relevant part: “Failure to submit a question shall not be deemed a ground for reversal of judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment ....” Tex.R. Civ. P. 278.
The preservation requirements of rule 278 apply when a party complains of an omission of an instruction; it does not apply, however, when a party argues that another party's proposed instruction be omitted entirely. Turner v. Precision Surgical, L.L.C., 274 S.W.3d 245, 248 n. 2 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (citing Tex.R. Civ. P. 274 ; Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex.1994) ; Yellow Cab & Baggage Co. v. Green, 154 Tex. 330, 277 S.W.2d 92, 93 (1955) ; Greer v. Seales, No. 09–05–001–CV, 2006 WL 439109, at *4 n. 3 (Tex.App.-Beaumont Feb. 23, 2006, no pet.) (mem. op.)). Brannan Paving does not appeal the...
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