Essex Crane Rental Corp. v. Striland Const. Co., Inc., No. 05-87-00313-CV

CourtCourt of Appeals of Texas
Writing for the CourtBAKER
Citation753 S.W.2d 751
PartiesESSEX CRANE RENTAL CORPORATION, Appellant, v. STRILAND CONSTRUCTION COMPANY, INC., Appellee.
Decision Date14 June 1988
Docket NumberNo. 05-87-00313-CV

Page 751

753 S.W.2d 751
ESSEX CRANE RENTAL CORPORATION, Appellant,
v.
STRILAND CONSTRUCTION COMPANY, INC., Appellee.
No. 05-87-00313-CV.
Court of Appeals of Texas,
Dallas.
June 14, 1988.
Rehearing Denied Aug. 1, 1988.

Page 753

Maurice Bresenhan, Jr., Houston, for appellant.

Leonard A. Hirsch, Dallas, for appellee.

Before BAKER, HOWELL and ROWE, JJ.

BAKER, Justice.

Essex Crane Rental Corporation appeals from a judgment in which a jury awarded damages and attorney's fees to Striland Construction Company for breach of an equipment lease. We disagree with Essex' contentions that neither the pleadings nor the evidence supported the submission of the special issues concerning Essex' breach of the lease or the jury's finding of a breach. However, we do agree with Essex that the trial court erred in disregarding the jury's award of attorney's fees to it. Striland brings two cross-points of error which this court is without jurisdiction to consider. Accordingly, we modify the judgment to reinstate the jury's award of attorney's fees to Essex and affirm the judgment as modified.

The material facts of this case are not in dispute. Striland, working as a concrete subcontractor on a project at the University of Dallas, leased a Manitowoc 4000 W Lift Crane from Essex in 1983. The agreement provided for a four-month minimum rental period with rental payments of $6,500 per month. At the expiration of the four-month rental period in February of 1984, Striland paid for its use of the crane in full and asked Essex to remove the crane from the job site. In response, Essex informed Striland that it intended to store the crane at the job site for approximately two weeks. However, the crane was not removed from the job site until early June of 1984.

The evidence showed that during the three-month interim storage period Striland used the crane on at least four occasions but no more than ten. As a result, Essex claims that it is due the full monthly rental payment of $6,500 per month for the period of March 3, 1984, to June 1, 1984. Striland contends, however, that Essex is entitled only to rent for the actual time the crane was used and offered to pay Essex two weeks' rent for its use of the crane. Demanding full payment, Essex refused the offer and by letter dated June 27, 1984, notified J.W. Bateson Company, the general contractor, and Traveler's Insurance, the surety, of its claim. Subsequently, Essex filed a lien on the project for its claim.

Earl Davis, Bateson's representative, testified that on the date of the Essex notice letter, Bateson did not owe any additional money to Striland because Striland had already been paid more than it was due under its contract. However, Bateson determined that it would be cheaper to pay Striland its additional costs for completing the project rather than to complete the project itself. Accordingly, it paid six additional pay requests to Striland, but after receiving notification of Essex' claim and lien, it refused to pay Striland's last three pay requests totaling $10,715.69. Davis further stated that had the lien not been filed, it was very possible that Striland would have been paid for its final pay requests as Bateson had routinely done in the past.

Striland sued for breach of the equipment lease seeking the $10,715.69 withheld by Bateson after Essex filed its lien. Essex counterclaimed for $20,366.66 in rent based on Striland's use of the crane while it was stored at the project site. The jury found that Essex had breached the lease agreement by failing to inform Striland of the length of storage time, by failing to remove the crane from the job site, and by seeking rent for the entire term of the storage period. Furthermore, the jury found that due to Essex' breach, Striland was unable to recover its final three payment requests from the general contractor, resulting in $10,715.69 in damages. The jury refused to find that Essex had breached

Page 754

the lease by filing a lien and, further, awarded Essex an offset of $1,083.33, representing the daily rental rate for five days' use of the crane. In addition, the jury awarded both parties attorney's fees for trial and appeal. The trial court entered judgment in accordance with the jury's findings but disregarded the award of attorney's fees to Essex, apparently finding its initial claim for $20,366.66 excessive and in bad faith. Further, the court refused to invalidate the mechanic's and materialman's lien filed by Essex.

In points of error four, ten, and sixteen, Essex complains that the trial court erred in submitting the special issues inquiring whether Essex breached the lease agreement because the issues were not supported by pleadings. We disagree. Essex did not specially except to Striland's petition. Absent special exceptions, a petition will be construed liberally in favor of the pleader. Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982). This Court will look to the pleader's intentions and uphold the pleadings even in the absence of a specific allegation of an element to the cause of action. In addition, every fact that can reasonably be supported by the specific allegations contained in the pleading will be inferred. Roark v. Allen, 633 S.W.2d at 809; Gulf, Colorado & Santa Fe Railway Co. v. Bliss, 368 S.W.2d 594, 599 (Tex.1963). A petition that gives fair and adequate notice of the facts upon which the pleader bases his claim is sufficient because it provides the opposing party with enough information to enable him to prepare a defense. Murray v. O & A Express, Inc., 630 S.W.2d 633, 636 (Tex.1982); Castleberry v. Goolsby Building Corp., 617 S.W.2d 665, 666 (Tex.1981).

Striland's petition alleged breach of contract in the following manner:

2. Essex Crane's failure to advise Striland that it intended to store the crane on the Project constituted a breach of the Lease, which clearly contemplated that Essex Crane would advise Striland if it was necessary to store the crane on the Project. In further breach of the Lease, Essex Crane also failed to advise Striland of the extended length of time it intended to store the crane on the Project. (Emphasis in original)

3. By reason of the aforementioned breach of the Lease, by Essex Crane, the Defendant is precluded from recovering rent for the months the crane remained on the Project following Striland's written notice of termination. Essex Crane's filing of a lien on the project is in further breach of the Lease, and this lien filing damaged Striland in the amount of $10,715.69, representing funds not paid to Striland by the Project contractor.

Furthermore, Paragraph Fourteen of Striland's pleadings requesting a declaratory judgment states:

3. The months for which Essex has charged Striland additional rent resulted from Essex Crane's failure to remove its crane from the Project within a reasonable period of time after Striland provided written notice of termination. As a result, Striland is entitled to a Declaratory Judgment establishing that the amount claimed due by Essex Crane is not a just debt and that the lien filed by Essex Crane is therefore invalid and directing Essex Crane to execute and record a release of such lien.

We hold this was sufficient to give Essex fair notice that it would have to defend against a claim involving breach of contract for failing to advise of the length of the storage time, failing to remove the crane from the job site, seeking rent for the entire storage period, and filing the lien. It is not fatal that Striland's pleadings failed to specifically use the term "breach of contract" in connection with Essex' demand for rent over the entire storage period. This fact can be inferred from the petition as a whole and the specific language stating that Essex was precluded from recovering rent for the months the crane remained on the project following Striland's written notice of termination. This conclusion is justified because Striland's petition made it clear that Essex' demand for rent for the entire storage period was wrongful. Accordingly, Essex was put on notice that it would have to defend

Page 755

against such a claim. If Essex considered the petition to be unclear, it should have specifically excepted to it. Having failed to do so, any defects of either form or substance have been waived. TEX.R.CIV.PROC. 90; see also Roark v. Allen, 633 S.W.2d at 810. Essex' points of error four, ten, and sixteen are overruled.

Essex contends in numerous points of error that there was no evidence to support the submission of the special issues concerning Essex' breach of the lease agreement. It is well established that the trial court must...

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50 practice notes
  • In re Perry, Bankruptcy No. 08-32362-H4-11.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Southern District of Texas
    • February 3, 2010
    ...merely because it is greater than that which is later demanded to be due at trial. Essex Crane Rental Corp. v. Striland Constr. Co., 753 S.W.2d 751, 758 (Tex.App.-Dallas 1988, writ Because Perry has failed to introduce exhibits or adduce testimony indicating unreasonableness or bad faith on......
  • Ashcraft v. Lookadoo, No. 05-95-01211-CV
    • United States
    • Court of Appeals of Texas
    • August 28, 1997
    ...685 (describing standard for legal sufficiency review). 5 FDIC, 854 S.W.2d at 684-85; Essex Crane Rental Corp. v. Striland Constr. Co., 753 S.W.2d 751, 755-56 (Tex.App.--Dallas 1988, writ denied). 6 FDIC, 854 S.W.2d at 684; Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.--Dallas 1986, w......
  • Donwerth v. Preston II Chrysler-Dodge, Inc., CHRYSLER-DODG
    • United States
    • Supreme Court of Texas
    • July 5, 1989
    ...denied); Speed v. Eluma Int'l, Inc., 757 S.W.2d 794 (Tex.App--Dallas 1988, no writ); Essex Crane Rental Corp. v. Striland Constr. Co., 753 S.W.2d 751 (Tex.App.--Dallas 1988, writ denied); Reynolds v. Charbeneau, 744 S.W.2d 365 (Tex.App.--Beaumont 1988, writ denied); Ragsdale v. Progressive ......
  • Ferguson v. DRG/Colony North, Ltd., No. 3-88-025-CV
    • United States
    • Court of Appeals of Texas
    • January 25, 1989
    ...some elements of a cause of action have not been specifically alleged. Roark v. Allen, supra; Essex Crane Rental v. Striland Const. Co., 753 S.W.2d 751 (Tex.App.1988, writ denied). Further, every fact that can reasonably be supported by the specific allegations contained in the pleading wil......
  • Request a trial to view additional results
50 cases
  • In re Perry, Bankruptcy No. 08-32362-H4-11.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Southern District of Texas
    • February 3, 2010
    ...merely because it is greater than that which is later demanded to be due at trial. Essex Crane Rental Corp. v. Striland Constr. Co., 753 S.W.2d 751, 758 (Tex.App.-Dallas 1988, writ Because Perry has failed to introduce exhibits or adduce testimony indicating unreasonableness or bad faith on......
  • Ashcraft v. Lookadoo, No. 05-95-01211-CV
    • United States
    • Court of Appeals of Texas
    • August 28, 1997
    ...685 (describing standard for legal sufficiency review). 5 FDIC, 854 S.W.2d at 684-85; Essex Crane Rental Corp. v. Striland Constr. Co., 753 S.W.2d 751, 755-56 (Tex.App.--Dallas 1988, writ denied). 6 FDIC, 854 S.W.2d at 684; Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.--Dallas 1986, w......
  • Donwerth v. Preston II Chrysler-Dodge, Inc., CHRYSLER-DODG
    • United States
    • Supreme Court of Texas
    • July 5, 1989
    ...denied); Speed v. Eluma Int'l, Inc., 757 S.W.2d 794 (Tex.App--Dallas 1988, no writ); Essex Crane Rental Corp. v. Striland Constr. Co., 753 S.W.2d 751 (Tex.App.--Dallas 1988, writ denied); Reynolds v. Charbeneau, 744 S.W.2d 365 (Tex.App.--Beaumont 1988, writ denied); Ragsdale v. Progressive ......
  • Ferguson v. DRG/Colony North, Ltd., No. 3-88-025-CV
    • United States
    • Court of Appeals of Texas
    • January 25, 1989
    ...some elements of a cause of action have not been specifically alleged. Roark v. Allen, supra; Essex Crane Rental v. Striland Const. Co., 753 S.W.2d 751 (Tex.App.1988, writ denied). Further, every fact that can reasonably be supported by the specific allegations contained in the pleading wil......
  • Request a trial to view additional results

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