Ezon v. Faulkner Const. Co.

• Decision Date: 06 December 1967
• Docket Number: No. 11549,11549
• Citation: 422 S.W.2d 568
• Parties: Jack EZON, Appellant, v. FAULKNER CONSTRUCTION COMPANY et al., Appellees. . Austin
• Court: Texas Court of Appeals

Page 568

422 S.W.2d 568

Jack EZON, Appellant, v. FAULKNER CONSTRUCTION COMPANY et al., Appellees.

No. 11549.

Court of Civil Appeals of Texas Austin.

Dec. 6, 1967.

Samuel M. Amster, Byrd, Davis, Eisenberg & Clark, Jack Eisenberg, Maloney & Black, Thomas Black, Austin, for appellant.

Phil Mockford, Austin, Crenshaw, Dupree & Milam, William R. Moss, Lubbock, Graves, Dougherty, Gee, Hearon, Moody & Garwood, Thomas G. Gee, Austin, for appellees.

HUGHES, Justice.

Faulkner Construction Company, a domestic corporation, hereinafter called 'Faulkner,' entered into written contracts, dated September 9, 1963, with Jack Ezon, appellant, for the construction of two apartment buildings in Austin, Texas, on property owned by Ezon, which apartment buildings are known as the Summit Apartments and the Nob Hill Apartments. Faulkner, not having been paid the total contract price for the construction of the Nob Hill Apartments, sued Ezon for the balance due which he alleged to be in its current petition at the time of trial as '$52,867.60 with lawful offsets * * *' or '$9,405.05.'

The petition of Faulkner was sworn to as required for a suit on a sworn account. The petition also sought recovery upon quantum meruit and for interest, attorney's fees, costs and for items of damage which were subsequently abandoned.

Ezon's trial answer was a general denial. He also had filed a cross action against Faulkner, the surety on his performance bond, National Surety Corporation, and W. R. Jenkins and W. B. Hoff, architects, and Gary Pools, Inc., wherein he sought damages due to poor workmanship in constructing the two apartment buildings (Summit and Nob Hill) and to deviations from the plans and specifications as contracted, and for loss of rentals due to delay in completing the apartment buildings.

The architects, Jenkins and Hoff, answered by denying that they had breached any duty owed Ezon and by pleading that Ezon had waived 'by his words and actions' any cause of action which he may have had against them. Jenkins and Hoff also filed a cross action against Ezon for $1,287.25 for fees and expenses alleged to be unpaid.

Gary Pools, Inc., filed a cross action against Ezon but its subject matter was settled prior to judgment and is not involved in this appeal.

Trial was non jury after which judgment was rendered that Ezon take nothing by his cross action and that Faulkner recover of Ezon $26,011.69, including $15,000.00 attorney's fees, all with interest, less a credit of $42.35. Jenkins and Hoff recovered the amount sought in their cross action. All costs were adjudged against Ezon.

Findings of fact and conclusions of law were filed by the trial judge.

Ezon's first and second points are that the trial court erred in awarding $15,000.00 in attorney's fees. These points are sustained.

The contract between the parties did not provide for the payment of attorney's fees to either party.

Ezon took possession of both apartment buildings and has since been renting the apartments. It is not disputed but that the apartment buildings were substantially completed.

This is not a case either for application of the rules relating to suits on sworn accounts or suits in quantum meruit. Faulkner's suit, as disclosed by the pleadings and the evidence, is a suit for breach of a written contract to pay for the construction of a building in accordance with the terms of the contract.

In Van Zandt v. Fort Worth Press, 359 S.W.2d 893, Tex.Sup. (1962) the Court stated:

'Respondent's claim is not founded upon a 'sworn account or accounts' of transactions in which there were sales on one side and purchases on the other, whereby title to personal property passed from respondent to petitioners. Therefore, it is not a claim 'upon a sworn account' within the meaning of the statute.'

The statute referred to was Art. 2226, Vernon's Tex.Civ.St., providing for the recovery of attorney's fees in suits on sworn accounts, the statute upon which Faulkner relies here.

There is nothing in the pleadings or evidence to bring this case within the definition of a sworn account as stated by the Supreme Court.

It is immaterial that the petition of Faulkner was sworn to so as to conform to the requirements for a suit on a sworn account. Morgan v. Morgan, 406 S.W.2d 347, Tex.Civ.App. San Antonio, 1966, no writ.

It is also of no consequence that Faulkner declared upon a quantum meruit. The applicable rule is stated in Woodard v. Southwest States, Inc., 384 S.W.2d 674, Tex.Sup., 1964, as follows:

'Recovery on an express contract and on quantum meruit are inconsistent. Where there exists a valid express contract covering the subject matter, there can be no implied contract.'

The trial court did not indicate whether it based its judgment upon the theory of sworn account, contract or quantum meruit. It there is room for any election to be made by the Court, which we hold untenable, we believe the judgment should be upon the contract in order not to subject Ezon to the penalty of attorney's fees which he did not contract to pay and which cannot be imposed for breach of a building contract such as we have here. Latham v. Dement, 409 S.W .2d 429, Tex.Civ.App. Dallas, 1966, writ ref. n.r.e., and authorities therein cited.

Ezon's third point is that the award of $15,000.00 attorney's fees is excessive. This point becomes moot in view of our disposition of the first two points.

Ezon's fourth point is that the trial court erred in failing to hold that he and Faulkner had agreed that the laundry room was to be built in accordance with a soil report and in not allowing him to recover damages for failure to so build such room, it being asserted that the overwhelming weight of the evidence called for such finding and judgment.

Ezon's fifth point, briefed with point four, is that judgment should also have been rendered against the architects Jenkins and Hoff for damages resulting from the faulty construction of the laundry room because the overwhelming weight of the evidence is that they undertook to see that Nob Hill was built in accordance with the soil report and this was not done as to the laundry room.

In May, 1962, prior to the beginning of construction of the Nob Hill, a 'foundation investigation' was conducted by F. G. Bryant & Associates, Inc. 'for Jenkins & Hoff, architects.' A basic recommendation made in this report was that 'all floor systems including basement slabs should be structurally designed free of grade with at least 6 inches of clearance.'

The result of failure to comply with this recommendation, as described by Col. E. C. Adams, a soil and construction engineer, is that 'the swelling motion and the swelling pressures will probably overcome the loads that are placed on it, and the building will be moved upwards, probably different amounts in different locations, to cause damage.'

This soil report was conducted at the suggestion of Jenkins & Hoff and Hoff agrees that it was his firm's duty to see that it was complied with. It was conducted at Ezon's expense in the amount of $1,408.00.

In September and October of 1966, Col. Adams made a conditions survey of the Nob Hill to determine if the earlier soil report had been complied with. Findings of this survey were that most of the foundation had been supported in accordance with the report. However, in one respect the foundation was constructed on grade contrary to the report's recommendations. This was the laundry room area which Col. Adams found to be 'supported directly on the soil.' The walls of the laundry room area extend 'upward and abutted directly on the main frame, you might say, of the other structure.'

Concerning this condition the survey comments:

'It is our opinion that the cracks and movements in the structure in the immediate vicinity of the laundry room, including certain interior damage to apartments above and to the north thereof, has been brought about as follows. The laundry room and nearby vending machine recess structure are based on a soil supported slab which is subject to movement with moisture changes in the soils, and the walls of the structures are rigidly abutted at their tops to the concrete floor and framing system. This floor and framing system is in turn integral with the column and foundation pier system which supports the main superstructure and is anchored at depth by belled piers against upward movement. The aforementioned soil supported slab has moved upward from swelling action in the soil and transmitted forces through the walls sufficient to have caused minor cracking in the floor and framing system adjacent to and above the laundry room area.'

The following recommendation was made:

'An indicated corrective action would be to remove at least a 3 inch section of the laundry room and vending machine recess walls at the top, and to replace this removed section with a nonrigid treatment for weatherproofing and appearance.'

Walter L. Snowden, consulting engineer who prepared the May, 1962, soil report for Frank Bryant & Associates, and who appeared as a witness for Faulkner, agreed that his recommendation was not followed in the laundry room area and 'that as a result of that, the laundry room area has tilted some, and forced the walls of the laundry room area up against the second floor.' His recommended correction was basically the same as that of Col. Adams.

Claude Pendley, an architect whose expert qualifications were unquestioned, testified that the reasonable and necessary cost of freeing the upper structure from the laundry room walls and repairing the cracks caused by the movement would be $500.00. This estimate was adopted by the trial judge. The trial judge also found that 'the laundry room was built on the surface contrary to the soil report, but I do not find that the parties agreed or made a part of their contract that this recommendation would be complied with.'

We overrule this point. We are unable to find any evidence that Faulkner knew of the...