Prairie Valley Independent School Dist. v. Sawyer, 2-83-124-CV

• Decision Date: 16 February 1984
• Docket Number: No. 2-83-124-CV,2-83-124-CV
• Citation: 665 S.W.2d 606
• Parties: 16 Ed. Law Rep. 983 PRAIRIE VALLEY INDEPENDENT SCHOOL DISTRICT, Appellant, v. Archie SAWYER d/b/a Sawyer Plumbing Service, James L. Geurin d/b/a Geurin Electric Service, and Foxworth-Galbraith Lumber Company, Inc., Appellees.
• Court: Texas Court of Appeals

Page 606

665 S.W.2d 606

16 Ed. Law Rep. 983

PRAIRIE VALLEY INDEPENDENT SCHOOL DISTRICT, Appellant, v. Archie SAWYER d/b/a Sawyer Plumbing Service, James L. Geurin d/b/a Geurin Electric Service, and Foxworth-Galbraith Lumber Company, Inc. Appellees.

No. 2-83-124-CV.

Court of Appeals of Texas Fort Worth.

Feb. 16, 1984.

Rehearing Denied April 5, 1984.

Stark, Barnhart & Morris and Richard S. Stark, Gainesville, for appellant.

Barbara Nunneley, Douglas R. Hudman, Fort Worth, for appellees.

Before JORDON, BURDOCK and HILL, JJ.

OPINION

HILL, Justice.

This is a suit brought by subcontractors and a materials supplier for service and materials supplied for the construction of a school building. The trial court, sitting without a jury, awarded a judgment for the subcontractors and supplier against the school district.

We affirm in part and reverse and render in part.

In the Spring of 1978, appellant, Prairie Valley Independent School District, entered into a contract for the construction of a vocational-agricultural building with Carminati Metal Construction for a total consideration of $58,000.00. Appellee, Archie Sawyer, d/b/a Sawyer Plumbing Service, subcontracted to perform the concrete slab work and the plumbing work. The electrical and mechanical work were subcontracted to appellee, James L. Geurin, d/b/a Geurin Electric Service. Appellee, Foxworth-Galbraith Lumber Company, Inc., was a materials supplier to Carminati Metal Construction. Construction on the project was commenced in June, 1978, but Carminati abandoned the project sometime in the Spring of 1979. The school district did not obtain a performance or payment bond from Carminati.

In June 1979, the school district retained A.F. Robertson to act as general contractor for the completion of the building. The appellees argue that during the time period from Carminati's abandonment until the hiring of Robertson, the school district assumed the position of general contractor and assumed responsibility for the ongoing and day-to-day progression of the project. During this time appellees continued to provide services and materials.

Appellant predicates its appeal on eight points of error. In its first three points, appellant argues that the trial court erred in granting judgment and awarding damages to each appellee because the awards are not supported by any evidence, they are not supported by sufficient evidence, or they are against the great weight and preponderance of the evidence so as to be unjust.

In our review of appellant's "no evidence" point, it is fundamental that the trial court's fact findings be upheld if there is more than a scintilla of evidence in support thereof. See Stedman v. Georgetown S. & L. Ass'n, 595 S.W.2d 486, 488 (Tex.1979). There is some evidence, more than a scintilla, if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds as to the existence of the vital fact. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). Moreover, in testing these findings, we must review the evidence in its most favorable light, considering only the evidence and inferences which support the findings and rejecting the evidence and inferences contrary to the findings. Stedman, supra; Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEXAS L.REV. 361 (1960).

On the other hand, when we confront a challenge that the evidence is insufficient, or that the judgment is against the great weight and preponderance of the evidence, we must consider and weigh all the evidence in the case, including that which is contrary to the judgment. Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980). We must determine whether the judgment was so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). In other words, this court must decide if the evidence which supports the judgment is so weak, or the evidence to the contrary is so overwhelming, as to warrant a setting aside of the judgment and remanding for a new trial. See Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Calvert, supra.

Appellee Sawyer testified in support of the award of damages that he provided all the plumbing and the foundation for the building in question. He testified that in his estimation the prices charged for the work he performed on the building were reasonable and customary in Montague County in 1978 and 1979. He further testified that such charges were currently owed in the amount of $4,144.60 plus fifteen percent (15%) of $4,144.60 and had not been paid. The trial court found that Sawyer rendered services and furnished materials in the sum of $4,744.00.

Appellee Geurin testified in support of the award of damages that he provided all the electrical work done on the building. He also testified that the amount of $5,833.00 was a fair and reasonable charge in Montague County for the labor and services provided. Geurin further testified that such amount was currently owed and had not been paid. The trial court found that the amount of $5,833.00 represented the value of the services rendered and materials furnished by Geurin to the school district.

Appellee, Foxworth-Galbraith Lumber Company, through its manager, Bobby Eldred, testified that the company provided materials for the construction of the building. Eldred testified that the charges made were the normal and customary charges for those goods and merchandise in 1978 and 1979, and that the total sum of $4,025.77 is a fair and accurate figure for the materials provided for the building. The trial court found that the amount of $3,967.19 represented the value of the services and materials provided by appellee Foxworth-Galbraith to the school district.

Upon reviewing all the evidence presented, we hold that the damages awarded to each of the appellees were supported by sufficient evidence, and we overrule appellant's first three points of error.

In appellant's fourth and fifth points of error, the school district alleges that the trial court erred in finding that the appellant entered into supervision and control of the construction of the building, and that the appellant assumed the position of general contractor because there was no evidence or insufficient evidence to support these findings, or that such findings were against the great weight and preponderance of the evidence.

Appellee Sawyer testified that he, Riley Simpson, the vocational-agricultural instructor and member of the building committee, and Jack Uselton, a school board member, staked the foundation of the project and that Simpson directed them as to where to place the building. Sawyer also testified that Simpson instructed the electrician, Geurin, concerning the location for the electrical outlets, and that Simpson was present on the construction site on a daily basis. This testimony was later corroborated by Geurin. Geurin also stated that he felt Simpson had the authority to instruct him as to the specifics of the buildings, and that Simpson supervised his day-to-day work.

Although Simpson testified that he was never asked to oversee the project, Uselton stated in his deposition that the school board did ask Simpson to oversee the construction of the building. Simpson went on to testify that in the interim between Carminati leaving and the hiring of the new contractor, there was no one responsible for overseeing the work done. Simpson also stated that neither he nor anyone else held himself out as the general contractor.

We find, after considering all the evidence and testimony presented, that the trial court's findings that appellant entered into supervision and control of the construction and assumed...