Lake LBJ Mun. Utility Dist. v. Coulson

• Decision Date: 12 August 1992
• Docket Number: Nos. 14,130,14,131,s. 14,130
• Citation: 839 S.W.2d 880
• Parties: LAKE LBJ MUNICIPAL UTILITY DISTRICT, Appellant, v. Bennett COULSON & C.A.E., Inc., Appellees. Bennett COULSON, Appellant, v. LAKE LBJ MUNICIPAL UTILITY DISTRICT, Appellee.
• Court: Texas Court of Appeals

Page 880

839 S.W.2d 880

LAKE LBJ MUNICIPAL UTILITY DISTRICT, Appellant, v. Bennett COULSON & C.A.E., Inc., Appellees.

Bennett COULSON, Appellant, v. LAKE LBJ MUNICIPAL UTILITY DISTRICT, Appellee.

Nos. 14,130, 14,131.

Court of Appeals of Texas Austin.

Aug. 12, 1992.

Rehearing Overruled Oct. 21, 1992.

Randall D. Wilkins, Houston, for appellant.

Charles Dippel, Houston, for appellees.

Before POWERS, ABOUSSIE and KIDD, JJ.

ON REMAND

ON MOTION FOR REHEARING

POWERS, Justice.

We grant the motions for rehearing of Lake LBJ Municipal Utility District and Bennett Coulson and C.A.E., Inc. We therefore withdraw the opinion and judgment of August 30, 1991, and substitute this opinion.

Bennett Coulson and C.A.E., Inc. recovered judgment on a jury's verdict in their suit against the Lake LBJ Municipal Utility District for sums allegedly due under a written contract to furnish the District various engineering services. ¹ We have twice reversed the trial-court judgment and remanded the cause for a new trial based on errors assigned by the District; in each instance, the Supreme Court of Texas has reversed our judgment and remanded the cause for our further consideration. See Lake LBJ Mun. Util. Dist. v. Coulson, 692 S.W.2d 897 (Tex.App.1985) (Coulson I ), rev'd, 734 S.W.2d 649 (Tex.1987) (Coulson II ), on remand, 771 S.W.2d 145 (Tex.App.1988) (Coulson III ), rev'd, 781 S.W.2d 594 (Tex.1989) (Coulson IV ). We refer the reader to these earlier opinions for a description of the controversy.

In its original brief in this Court, the District assigned thirty-two points of error to the trial-court judgment. The Engineer brought three cross-points as well. In its opinions, the supreme court decided eight of those points of error. This Court decided sixteen additional points of error. Eleven points of error remain to be decided. Because the procedural history of this case is so complex, however, we will discuss all of the issues to a greater or lesser extent so the reasons for our holdings will be readily apparent.

THE JURY QUESTIONS

In its first eight points of error, the District complains of the jury questions submitted by the trial court. In our first opinion in this cause, we held the trial court committed reversible error when it refused to supply in the charge, by definition, instruction, or the phrasing of the first question, a reasonable standard of skill and diligence that would have enabled the jury to determine whether the Engineer's plans On remand, we again reversed the judgment and remanded the cause to the trial court based on, among other reasons, our holding that the first question constituted an impermissible comment on the weight of the evidence. Coulson III, 771 S.W.2d at 150-51. The supreme court again reversed our judgment, holding the question did not impermissibly comment on the weight of the evidence. Coulson IV, 781 S.W.2d at 597.

                and specifications met that standard and therefore established his right to recover on the contract.  Coulson I, 692 S.W. at 907.   The supreme court held the submitted issues "properly placed the respective burdens and fairly submitted the respective claims of Coulson and the District."  Coulson II, 734 S.W.2d at 652
                

It is our understanding that the supreme court's two opinions dispose of the first eight points of error. In those points, the District complains the trial court erred by (1) submitting question number one and (2) omitting the District's requested questions on whether the Engineer substantially complied with the terms of the contract and performed in a good-and-workmanlike manner. We believe the supreme court rejected these claims by its holding that the submitted issues "properly placed the respective burdens and fairly submitted the respective claims" of the parties. We conclude, therefore, that the supreme court overruled the District's first eight points of error.

In its twenty-ninth, thirtieth and thirty-first points of error, the District complains the trial court also erred by refusing to submit requested questions concerning work for which the District had already paid the Engineer. According to the District, the trial court erred in refusing to submit questions by which the District sought to establish that: (1) the Engineer failed to perform the contract in a good-and-workmanlike manner with respect to the projects for which the Engineer had been paid; (2) the payments previously made to the Engineer were made in reliance upon the Engineer's false representations that his plans substantially complied with the contractual requirements; and (3) the value of plans and specifications, for which the Engineer had previously been paid by the District, was unreasonably low.

We reject these contentions. In its first opinion, the supreme court said, "We are unable to discern any real differences between the District's claim that Coulson's efforts were not good and workmanlike and did not meet the standards of reasonable engineering practice and its claim that Coulson was negligent in his performance of professional services." Coulson II, 734 S.W.2d at 651. The supreme court held that question number six, as submitted, resolved the question whether the Engineer was negligent in providing plans and specifications. It follows that question number six also resolved the question whether the Engineer performed in a good-and-workmanlike manner.

The District argues that its good-and-workmanlike-manner argument survives as a separate issue, despite the supreme court's pronouncement in Coulson II, because the District also filed a counterclaim against the Engineer to recover amounts already paid. We believe this distinction is unimportant. On appeal, the District's only assignment of error with respect to the counterclaim is that the trial court did not submit the requested questions. The District does not attack the jury's answers by legal- or factual-sufficiency points. In light of our holding that question number six properly presented the District's theory of the case, the issue whether the question represented the District's defense or its counterclaim is irrelevant. Question number six placed the burden of proof on the District and did not distinguish between plans for which the District had previously paid the Engineer and those for which the Engineer had received no payment. Therefore, we believe question number six resolved the question whether the Engineer performed in a good-and-workmanlike manner with respect to both the Engineer's claim against the District and the District's counterclaim against the Engineer.

Question number eight asked the jury whether the Engineer designed and

                planned part of the water, sewer and drainage systems in excess of the reasonable needs of the District.  It also asked whether the Engineer in bad faith misrepresented the need for these systems, and, if so, whether the District relied on these misrepresentations.  The jury answered "No."   We believe this question sufficiently presented the District's complaints that (1) it detrimentally relied on the Engineer's false representations that his plans substantially complied with the contract requirements and (2) the value of plans and specifications for which the Engineer had previously been paid by the District was unreasonably low.  We overrule the District's twenty-ninth, thirtieth, and thirty-first points of error
                

SUFFICIENCY OF THE EVIDENCE

In its ninth point of error, the District contends the trial court erred in overruling the District's motion for new trial because the evidence is factually insufficient to support a finding that the Engineer substantially performed the contract. Question number one asked as follows:

Do you find from a preponderance of the evidence that during the time in question [the Engineer] furnished the [District] with sufficient plans and specifications for construction of a water system, a sanitary sewer system and drainage for the needs of such District, and to secure approvals from appropriate governmental agencies, under the circumstances then existing?

In our first opinion in the cause, we held the trial court committed reversible error when it refused to supply in the charge a reasonable standard of skill and diligence that would have enabled the jury to determine whether the Engineer's plans and specifications met that standard and thus established his right to recover on the contract. Coulson I, 692 S.W.2d at 907. In that connection, the District had complained the charge omitted the controlling or ultimate question of fact: whether the plans and specifications were done "in a good and workmanlike manner" or "in accordance with appropriate standards of engineering practice." In reference to this complaint, we said, "The evidence adduced at trial would support a finding either way on the issue of whether the Engineer's plans and specifications were sufficient to meet either standard of skill and diligence suggested by the standard." Id. at 904. Nevertheless, the supreme court remanded the cause to this Court for the express purpose of determining whether the evidence was sufficient to support the jury's finding. Coulson IV, 781 S.W.2d at 597.

Contrary to the supreme court's view, we believe we did explicitly decide the evidence was factually sufficient to support the jury's affirmative answer to question number one, although we did not detail the evidence suggesting that conclusion. It is our understanding that we were not obliged to do so:

In order that [the supreme court] may ... determine if a correct standard of review of factual insufficiency points has been utilized, courts of appeals, when reversing on insufficiency grounds, should, in their opinions, detail the evidence relevant to the issue in consideration and clearly state why the jury's finding is factually insufficient.... Further, those courts, in their opinions, should state in what regard the contrary evidence greatly outweighs the evidence in support of...