Miner-Dederick Const. Corp. v. Mid-County Rental Service, Inc.

Decision Date02 July 1980
Docket NumberMID-COUNTY,MINER-DEDERICK,No. B-8466,B-8466
Citation603 S.W.2d 193
PartiesCONSTRUCTION CORPORATION, Petitioner, v.RENTAL SERVICE, INC. et al., Respondents.
CourtTexas Supreme Court

Mehaffy, Weber, Keith & Gonsoulin, Robert Q. Keith and Patricia Chamblin, Beaumont, for petitioner.

John L. Fulbright, Beaumont, for respondents.

McGEE, Justice.

This suit was initiated by a subcontractor against a general contractor for amounts owed in connection with three subcontracts. The general contractor counterclaimed for damages for breach of the subcontracts. The trial court rendered a judgment in favor of the general contractor, but the court of civil appeals reversed and awarded damages to the subcontractor. 583 S.W.2d 428. We reverse the judgment of the court of civil appeals and remand the cause to that court.

Miner-Dederick Construction Corporation was the general contractor for the construction of a library building for Lamar University in Beaumont, Texas. Because the contract was for public works, statutory general contractors' bonds were required to be given by Miner-Dederick. See Tex.Rev.Civ.Stat.Ann. art. 5160 (Vernon 1971 & Supp.1979). Miner-Dederick entered into three subcontracts with Mid-County Rental Services, Inc., and Alton M. Stewart, a joint venture (Mid-County). The terms of each subcontract were similar; they differed with respect to the contract amount and the nature of the work to be performed. Contract 1 was for $94,948 for excavation and backfill, Contract 2 was for $57,402 for site cleaning and a parking lot, and Contract 3 was for $30,000 for street paving. In connection with each subcontract, Miner-Dederick required subcontractors' bonds to be given by Mid-County with United States Fidelity & Guaranty (USFG) as surety.

In 1973, Mid-County began work under the subcontracts, but Miner-Dederick became displeased with the performance. In 1975, Miner-Dederick sent notice of termination. Mid-County brought suit against Miner-Dederick alleging that it had performed the work under the subcontracts and claiming the balance due on the contract prices. In addition, Mid-County alleged that it had performed "extra work" at Miner-Dederick's request. It claimed the value of this extra work and attorney's fees.

Miner-Dederick counterclaimed, alleging that Mid-County had not completed the contracts and seeking costs of completion damages. According to Miner-Dederick, its costs of completion offset any recovery to which Mid-County might be entitled and required an award in Miner-Dederick's favor. Miner-Dederick also sought recovery for amounts it had paid or was obligated to pay to Mid-County's suppliers.

Special issues were submitted to a jury. The jury found that Mid-County had breached the subcontracts, causing damage to Miner-Dederick. With respect to the opposing damages claims, however, damages were determined to be "NONE" for each contract. In another issue, the jury found that Mid-County was entitled to $2790.64 for extra work and attorney's fees. The jury also found that Miner-Dederick had paid or was obligated to pay $10,000 to Mid-County's suppliers. The trial court rendered judgment on this verdict, awarding Miner-Dederick $7203.36 against Mid-County and USFG. 1

Mid-County appealed. The court of civil appeals held that Miner-Dederick was not entitled to recover the $10,000 for suppliers' claims. It also held that in addition to the jury's award of $2790.64, Mid-County was entitled to two more items of damages that had been admitted by Miner-Dederick: $19,936.45 as the balance due under Contract 3 and $4141.23 for extra work done in connection with Contract 1. We granted Miner-Dederick's application for writ of error to consider 1) whether Miner-Dederick is required to pay the additional damages awarded by the court of civil appeals, and 2) whether Miner-Dederick is entitled to $10,000 representing suppliers' claims.

Jurisdictional Predicate

Subsequent to the court of civil appeals' decision, both Miner-Dederick and Mid-County filed motions for rehearing. Mid-County urged that it was entitled to interest on its damages. The court modified its judgment by awarding prejudgment interest. Mid-County now argues that under the rule stated in Oil Field Haulers Association v. Railroad Commission, Miner-Dederick's first motion became "functus officio" and its second motion is insufficient to preserve the points of error presented in its application to this court. See Oil Field Haulers Association v. Railroad Commission, 381 S.W.2d 183, 189-90 (Tex.1964). That case is not controlling here. In the Oil Field Haulers case the second motion for rehearing contained the statement that "(a)ppellees hereby incorporate and reurge each of their Points of Error previously urged." In this case Miner-Dederick's second motion for rehearing met the requirement that the assignments of error be "distinctly specified." See Tex.R.Civ.P. 458.

Interpretation of the Jury Findings

Under Mid-County's theory of damages, payments made by Miner-Dederick were subtracted from the contract prices. The contract prices and the amount of payments were not disputed at trial and were broken down by contract on Miner-Dederick's exhibits. Under the theory of damages used by Miner-Dederick, its liability to Mid-County for the contract prices was offset against payments and costs of completion. In connection with Contract 1, Miner-Dederick admitted that it owed $4141.23 to Mid-County for unpaid, "approved" extra work. In connection with Contract 3, Miner-Dederick acknowledged that it owed $19,936.45. Toward the end of the trial, a chart displaying Miner-Dederick's claims and liabilities was introduced as a summary of other documents in evidence. A portion of this chart appeared substantially as follows:

                                     Contract 1                  Contract 2      Contract 3
                                     -------------------  -----------------  ------------------
                Total Cost to        $117,143.22                $ 92,778.71     $ 10,063.55
                Less: Contract        101,505.23 2            57,402.00       30,000.00
                2. This figure includes "approved" extras in the amount of $6557.23, the sum
                of $4141.23 for unpaid extras and $2416 for paid extras
                                     -------------------  -----------------  ------------------
                       TOTAL         $ 15,637.99                $ 35,376.71    ($ 19,936.45)

Damage issues were submitted and answered in the following form:


Do you find from a preponderance of the evidence that Miner-Dederick Construction Company was damaged because of the breach of contract, if any, inquired about in Special Issue No. 6.

Answer "We do" or "We do not" regarding each contract:

                Contract No. 1  We do
                Contract No. 2  We Do
                Contract No. 3  We Do

If you have answered the foregoing Special Issue No.8 "We do," and only in that event, then answer the following:


Find from a preponderance of the evidence the difference in money, if any, between the contract price and the fair and reasonable sum of money (including the money paid to Mid-County Rental Service, Inc.) required by an ordinary prudent contractor, situated as was Miner-Dederick Construction Company, to complete the contracts under the same or similar circumstances.

                Answer in dollars and cents, if any
                Contract No. 1  $ NONE
                Contract No. 2  $ NONE
                Contract No. 3  $ NONE

Damage issues were submitted and answered in the following form:

Miner-Dederick's first contention is that the trial court's judgment on the verdict, which awarded no damages for Contracts 1, 2, or 3 to either party, was a correct interpretation of these jury findings. According to Miner-Dederick, the jury treated the contracts as one and offset all of Miner-Dederick's liabilities against Mid-County's liabilities. Miner-Dederick concludes that the jury intended a "washout" for the contracts, finding that the total costs of completion exactly equalled the total balance due for the contract prices. Miner-Dederick argues that this case is controlled by Davis v. Campbell, 572 S.W.2d 660 (Tex.1978). In Davis v. Campbell, Davis sued for lost profits for breach of contract. He acknowledged owing certain rents to Campbell and credited them when computing his damages. Campbell pleaded the rents as an offset. The jury was shown a chart, which listed the opposing claims and a net balance. The jury's damage award was close to that net balance. This court held that the jury's award included the offset for rents: "Although the mental processes of the jury are unknown, the constraints of the theory upon which the case was tried by the parties required the jury to offset the rent arrearages in favor of Campbell in determining Davis' profit." Thus, Campbell was not entitled to a second offset. Id. at 662.

We are unable to accept the interpretation urged by Miner-Dederick because its necessary implication is that the jury did not answer the issues in harmony with the manner in which they were submitted. We cannot agree that the jury treated the three subcontracts as one contract. It is true, as pointed out by Miner-Dederick, that its pleadings treated the contracts as one, by claiming an aggregate total under all contracts as well as separate amounts for each contract. Similarly, an aggregate total as well as separate amounts was shown on exhibits. Nevertheless, the "constraints of the theory upon which the case was tried" did not direct the jury to calculate its findings in the manner urged by Miner-Dederick. Despite Miner-Dederick's contention that the contracts were treated as one, Miner-Dederick's own conduct at trial indicated that they could also be separately treated. Throughout trial the contracts were...

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