Lake LBJ Mun. Utility Dist. v. Coulson, s. 14130

• Court: Court of Appeals of Texas
• Citation: 771 S.W.2d 145
• Docket Number: 14131,Nos. 14130,s. 14130
• 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.
• Decision Date: 20 April 1988

Page 145

771 S.W.2d 145

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. 14130, 14131.

Court of Appeals of Texas,

Austin.

April 20, 1988.

Rehearing Denied May 25, 1988.

J. Ron Young, Randall D. Wilkins, Rowe & Young, Houston, for Lake LBJ Mun. Utility Dist.

C. Charles Dippel, Sears and Burns, Houston, for Bennett Coulson & C.A.E., Inc.

Before POWERS, BRADY and ABOUSSIE, JJ.

POWERS, Justice.

Bennett Coulson and C.A.E., Inc. recovered judgment, after a jury trial, against Lake LBJ Municipal District in a suit for sums allegedly due under a written contract to furnish the District professional engineering services. The District appeals. We will reverse the judgment and remand the causes for a new trial.

THE CONTROVERSY

In our previous consideration of this appeal, we held the trial court erred in failing to place the burden of proof on the Engineer to show that his plans and specifications met a reasonable standard of skill and diligence, when: (1) the Engineer sued solely on a theory that he had fully performed his contract; and (2) the contract failed to require any specific standard of workmanship. Lake LBJ Municipal Utility District v. Coulson, 692 S.W.2d 897, 907-908 (Tex.App.1985). The Supreme Court reversed our judgment, holding that the District had, in such a case, the burden to establish that the Engineer's plans and specifications did not meet a reasonable standard of skill and diligence when the District pleaded as much in defense of the Engineer's claim. Coulson v. Lake LBJ Municipal Utility District, 734 S.W.2d 649, 651-52 (Tex.1987). We refer to these earlier opinions for a description of the controversy.

We turn now to the District's remaining points of error, insofar as they have not already been determined. The interests of Coulson and C.A.E., Inc. being identical on appeal, we shall refer to them collectively as the "Engineer." We reverse the judgment and remand for a new trial based on each of the several errors discussed below.

VIOLATION OF RULE AGAINST DIRECT COMMENTS ON THE WEIGHT OF

THE EVIDENCE

The District objected to Special Issue No. 1 on the ground that the issue contained a statement that impermissibly commented on the weight of the evidence. The issue inquired as follows:

Do you find from a preponderance of the evidence that during the time in question Coulson & Associates Engineers, Inc., furnished the Lake LBJ Municipal Utility 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?

(emphasis added). The District contends the emphasized portion of the inquiry improperly focused the jury's attention on an undisputed matter--it was undisputed that the pertinent government agencies had approved the plans and specifications--in a way calculated to lead the jury to give an affirmative answer to the special issue.

The Engineer responds that the Supreme Court decided this point of error adversely to the District in its appellate review. The Supreme Court stated in its opinion that "Issues 1 and 6 properly placed the respective burdens and fairly submitted the respective claims of Coulson and the District." 734 S.W.2d at 652. The opinion did not, however, purport to address whether either of these issues contained an impermissible comment on the weight of the evidence. We hold accordingly.

The Engineer also contends the District waived its point of error by a lack of specificity in its objection. At trial, the District objected that the passage--"to secure approvals from appropriate governmental agencies under the circumstances then existing"--constituted an impermissible comment on the weight of the evidence, stating that the passage would mislead the jury into believing that "the only standard of care was to receive approval from the appropriate governmental agencies." We believe this objection, which specifically identified and attacked the offending language as a comment on the weight of the evidence, was made in proper form and explained with reasonable clarity the basis of the District's objection. We hold the objection was sufficient to preserve the point of error. ¹

Having determined that the point of error is properly before us for adjudication, we shall now consider the merits of the District's contention.

Approval of the plans and specifications by a governmental agency was not a controlling issue in the case. See, e.g., Black v. Acers, 178 S.W.2d 152 (Tex.Civ.App.1943, writ ref'd n.r.e.). The uncontradicted evidence showed that the submitted plans received governmental approval, except for a few instances where the Water Commission had not yet approved the proposed plans before the Engineer's employment was terminated by the District. Whether such approval had been given was never disputed in the case.

The parties did dispute, vigorously, the proper weight to be accorded such governmental approval in deciding the ultimate issue of whether the Engineer's work met the quality-of-work standard required by his contract. Thus, the jury were asked to decide what weight to assign such governmental approval in determining the ultimate issue of whether the plans complied with the standard of work required by the Engineer's contract. A careful reading of the entire record, including thirteen volumes of testimony, reveals that the Engineer (Bennett Coulson) and the District's witnesses (Lynn Willis, Jerry Hart, James Robert Jones, David W. Gray, Carlos Winter McCarty, Allen G. Martinets, and Henry Carl Bain) gave different and conflicting testimony concerning the meaning and importance of such governmental approval on the issue of whether the Engineer performed his work to the standard required by his contract.

Texas R.Civ.P.Ann. 277 (Supp.1988) provides:

The court shall not in its charge comment directly on the weight of the evidence or advise the jury of the effect of their answers, but the court's charge shall not be objectionable on the ground that it incidentally constitutes a comment on the weight of the evidence or advises the jury of the effect of their answers when it is properly a part of an instruction or definition.

In accordance with this rule, a trial court may not single out an isolated item of evidence and charge the jury on this evidence in such a way as to constitute a comment on its importance as compared to all the evidence on the point in issue. A special issue that suggests a trial judge's opinion concerning a matter the jury must decide--the importance of an item of evidence, for example--is a "direct comment on the evidence."

However, even if the wording of a special issue constitutes an impermissible comment on the weight of the evidence, not every such comment is cause for reversal. Alvarez v. Missouri-Kansas-Texas R. Co., 683 S.W.2d 375 (Tex.1984) (use of the phrase "not timely" in special issue submitting the issue of whether the defendant railroad was negligent in not applying its brakes was, at most, harmless comment). To constitute reversible error, the record must show that the error was reasonably calculated to and probably did cause the rendition of an improper verdict. Hydro-Line Mfg. Co. v. Pulido, 674 S.W.2d 382 (Tex.App.1984, writ ref'd n.r.e.).

While the standard for reversal is high, a few cases have found comments on the weight of the evidence to be both erroneous and reversible error. For example, in City of Pearland v. Alexander, 483 S.W.2d 244 (Tex.1972), the controlling issue for the jury to determine was the amount of severance damages sustained by the landowners in an eminent-domain proceeding. A consideration in determining such damages was how the City planned to use the ten acres of condemned land, including the possibility that the City might use the site for a sewage plant. The court instructed the jury that the City would use the tract as a site for a sewage-disposal plant; and, in determining the before-and-after market value of the remainder, the jury was required "to presume that the City of Pearland will exercise its rights and use and enjoy this property to the full extent for such a sewerage disposal plant." Id. at 249. The Texas Supreme Court held this instruction to be a direct comment on the weight of the evidence and one that materially influenced the jury's market-value findings, requiring a reversal of the judgment that rested thereon. Id.

Similarly, in Gleghorn v. City of Wichita Falls, 545 S.W.2d 446 (Tex.1976) (per curiam refusal of an application for writ of error because no reversible error was shown) the Supreme Court pointed to two parts of a jury instruction: one part advised the jury that "the easement being taken ... is to be used for the purpose of being submerged by water collected and impounded ..." while the other part stated that the "rights include the right of being submerged by water." Id. at 448 (emphasis added). Although some evidence suggested that a possibility of infrequent flooding did exist, there was no evidence that water would permanently flood or submerge the area; consequently, the erroneous instruction required a reversal. Id.

In Daniel v. Daniel, 676 S.W.2d 666 (Tex.App.1984, writ ref'd n.r.e.), a will-contest case, appellant had attempted to establish the elements of a common-law marriage. The undisputed evidence showed that the testator and appellant had been previously married, divorced, and then resumed living together. Id. at 668. The special issue, submitted to the jury over objection and tender of a substantially correct issue by the appellant's counsel, inquired Do you find from a preponderance of the evidence that after their divorce in 1978, Raymond Daniel and Winnie Daniel agreed with each other to be husband and wife in a new...