Guy James Const. Co. v. Trinity Industries, Inc.
| Decision Date | 08 May 1981 |
| Docket Number | No. 80-1322,80-1322 |
| Citation | 644 F.2d 525 |
| Parties | 31 UCC Rep.Serv. 1627 GUY JAMES CONSTRUCTION COMPANY, Plaintiff-Appellee Cross-Appellant, v. TRINITY INDUSTRIES, INC., Defendant-Appellant Cross-Appellee. . Unit A |
| Court | U.S. Court of Appeals — Fifth Circuit |
Locke, Purnell, Boren, Laney & Neely, John L. Estes, William Andrew Barr, Thomas W. Hughes, Dallas, Tex., for defendant-appellant cross-appellee.
Andress, Woodgate & Lodewick, William Andress, Jr., Dallas, Tex., for plaintiff-appellee cross-appellant.
Appeals from the United States District Court for the Northern District of Texas.
Before CHARLES CLARK and GEE, Circuit Judges, and SPEARS *, District Judge.
Guy James Construction Company (James) recovered a $252,016.08 judgment for damages sustained when Trinity Industries, Inc. (Trinity) breached a construction contract providing for the timely delivery of trapezoidal steel girders, to be utilized by James in a construction project at Dallas-Fort Worth Regional Airport (DFW). Both parties appealed the amount of damages awarded by the district court. Except for certain items of recovery, which are reversed, we affirm the judgment of the district court.
In 1971, DFW and James entered into a contract for the construction of four taxiway bridges over the public access road bisecting the airport. The contract provided that a designated engineer would represent DFW in all aspects of the bridge construction, and would, accordingly, supervise the construction activities. In addition, James was required to employ an independent testing laboratory to inspect the component construction materials for compliance with manufacturing plans and specifications.
Trinity submitted to James alternative offers for fabrication of the steel girders required for the bridges. These proposals were identical except for a time/price differential; one offer provided for a six week earlier delivery date at a one-half cent per pound higher price, which, based upon the quantity of steel ultimately delivered, amounted to a difference of $17,129.65. Although James accepted neither proposal, it subsequently issued a purchase order incorporating the earlier delivery date and the higher price provisions quoted in one of the original offers. Delivery under this contract was to commence not later than January, 1972, and was to be completed by June, 1972.
During January, 1972, Trinity began delivering the steel girders contracted for. Inspection of the girders, however, revealed that they were not manufactured in accordance with plans and specifications. By order of DFW's engineer representative, the girders were rejected and returned to Trinity. Thereafter, delivery of acceptable steel girders, fabricated by a subcontractor, commenced in December, 1972.
Trinity's failure to timely produce the girders in accordance with the contract prevented James from timely completing performance under its construction contract with DFW, and, pursuant to a provision of the DFW contract providing for absolute liquidated damages of $1,500.00 per day, DFW withheld, because of the delay, $453,000.00 from its payment to James upon completion of the project. James instituted this suit against DFW, Trinity, and various subcontractors and consultant engineers to recover the additional costs occasioned by the delay. The original complaint stated in pertinent part:
As a result of the rejection of the trapezoidal girders by the AIRPORT BOARD'S engineer, JAMES sustained additional and extra costs in the performance of its contract with the AIRPORT BOARD... Plaintiff JAMES, is entitled to recover the above amounts from the Defendant, AIRPORT BOARD; or, in the alternative, is entitled to recover as indemnity, from TRINITY ..., or from both Defendants, jointly and severally, the full amount of JAMES' said extra cost....
An amended complaint further alleged that:
D/FW has unreasonably and improperly deducted from contract payments due to plaintiff the sum of $453,000.00 assessed as alleged liquidated damages for delayed completion of contract work on the Taxiway Bridges, despite the fact that the delays in completion were the direct and proximate result of errors and omissions on the part of D/FW ...
This complaint, like the original pleading, requested an alternative judgment against Trinity. Thereafter, all of the defendants, except Trinity, settled with James for a total sum of $424,000.00.
On July 10, 1976, James filed a second amended complaint against Trinity, wherein James held Trinity accountable for the $453,000.00 in liquidated damages retained by DFW. In addition, James sought to recover administrative expenses, and home and site office overhead expenses associated with the additional eleven month construction period. The complaint also charged Trinity with excess welding costs incurred for incorporating the rejected girders into another facet of the construction project.
The district court granted James a partial summary judgment against Trinity for breach of contract. In a subsequent bench trial on the issue of damages, James was permitted to recover from Trinity the reasonable expenditures made in good faith by James as a consequence of Trinity's breach. The following recoverable expenditures were awarded:
Liquidated damages $102,162.43
Home office overhead 34,450.00
Field office overhead 11,500.00
Early delivery premium 17,192.65
Prejudgment interest 1 86,711.00
This appeal from the bench trial followed.
Initially, we must determine whether this suit was barred, as a matter of law, by the Texas "election of remedies" doctrine. The doctrine of election may preclude the recovery of damages based upon inconsistent theories arising from the same state of facts. See Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 850 (Tex. 1980). "(A)n election will bar recovery when the inconsistency in the assertion of a remedy, right, or state of facts is so unconscionable, dishonest, contrary to fair dealing, or so stultifies the legal process or trifles with justice or the courts as to be manifestly unjust." Id. at 851. As this Circuit has recognized,
(A) claimant should not be permitted to assert formally the existence of one state of facts in a claim against one party and accept complete or partial satisfaction of that claim, and then maintain an action against another party on the ground that the facts first asserted did not exist.
Lubbock Feed Lots, Inc. v. Iowa Beef Processors, 630 F.2d 250, 274 (5th Cir. 1980), quoting Ward v. Shriro Corp., 561 S.W.2d 589, 591-92 (Tex.Civ.App. Dallas), rev'd on other grounds, 570 S.W.2d 395 (Tex. 1978). Trinity argues that James' claims, herein, were asserted against former parties to the lawsuit from whom James obtained a substantial sum in settlement, and, therefore James may not maintain this action against Trinity.
Trinity's reliance on the doctrine of election is inappropriate. Election of remedies is an affirmative defense that must be pleaded. Lubbock Feed Lots, Inc. v. Iowa Beef Processors, supra, 630 F.2d at 274 n.34; Bradley v. Straus-Frank Co., 414 S.W.2d 504, 510 (Tex.Civ.App. Dallas 1967, ref'd n.r.e.). Trinity not only failed to plead this defense, but also failed to litigate this issue in the trial court. Consequently, because Trinity did not demand an election, it waived the benefit of the doctrine. See Thate v. Texas & Pacific Railway Co., 595 S.W.2d 591, 599-600 (Tex.Civ.App. Dallas 1980, no writ).
Moreover, assuming the election defense was raised at trial, the allegedly inconsistent position taken by James does not require an election under these circumstances. A party may plead alternative and inconsistent facts or remedies against several parties without being barred. See Fed.R.Civ.P. 8(e) (2), 20(a); Tex.R.Civ.P. 48, 51. Such a pleading will not amount to an election "unless the choice is made with a full and clear understanding of the problem, facts, and remedies essential to the exercise of an intelligent choice." Bocanegra v. Aetna Life Ins. Co., supra, 605 S.W.2d at 852. The record indicates that James was unable to make an informed choice of defendants when the suit was initiated because Trinity had charged the consulting engineers with arbitrarily rejecting the steel girders. It was only upon extensive subsequent discovery that Trinity was found to have violated the manufacturing specifications, and a second amended complaint was, accordingly, filed. In addition, it should be noted that, since the filing of the original pleading, James has held Trinity alternatively liable for "the full amount of James' said extra cost" due to the construction delay. Although James' settlement with DFW may have partially satisfied damages resulting from the delay, the evidence clearly supports James' argument that the settlement agreements were executed in contemplation of various other unrelated claims. The election doctrine will not bar suit when a settlement for less than the stated claim is based upon uncertain and undetermined facts. Bocanegra v. Aetna Life Ins. Co., supra, 605 S.W.2d at 852.
If further comment on this issue is deemed necessary, suffice it to say that the primary cases relied on by Trinity, Lomas & Nettleton Co. v. Huckabee, 558 S.W.2d 863 (Tex. 1977) and Metroflight, Inc. v. Shaffer, 581 S.W.2d 704 (Tex.Civ.App. Dallas 1979, ref'd n.r.e.), have recently been severely criticized by the Texas Supreme Court. See generally Bocanegra v. Aetna Life Ins. Co., supra, 605 S.W.2d at 853-55. We believe the Bocanegra opinion, standing alone, supports the maintenance of this lawsuit.
After both parties filed supplemental briefs to the district court's findings of fact and conclusions of law, the judge entered supplementary findings of fact and conclusions of law, which read in pertinent part:
The amount of $17,192.65 was a...
To continue reading
Request your trial
-
Golyar v. McCausland, K89-82 CA.
... ... Elliot Co., Inc. v. Caribbean Util. 738 F. Supp. 1093 Co., 513 F.2d ... Topstone Industries, Inc., 788 F.2d 151, 157 (3d Cir. 1986) (Rule 11 "imposes ... ...
-
Huffman v. Union Pacific R.R.
...remedies or for other reasons choose one particular theory, but no such circumstance exists here. Cf. Guy James Constr. Co. v. Trinity Indus., Inc., 644 F.2d 525, 529–30 (5th Cir.1981). Further, the Union Pacific could be seen as arguing that Huffman took a factual position that constituted......
-
Jones v. Allstate Ins. Co.
...an intelligent choice ." Allstate Ins. Co. v. James , 779 F.2d 1536, 1541 (11th Cir. 1986) (citing Guy James Constr. Co. v. Trinity Industries, Inc. , 644 F.2d 525 (5th Cir. May 8, 1981) (emphasis added); see generally, C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1482 (19......
-
S. Leo Harmonay, Inc. v. Binks Mfg. Co.
...period. Home office overhead is generally considered a compensable element of delay damages. See Guy James Construction Co. v. Trinity Indus., Inc., 644 F.2d 525 (5th Cir.1981), modified, 650 F.2d 93 (5th Cir.1981); Luria Bros., supra; Manshul, supra. An oft-recognized basis for an award of......