R.M. Dudley Const. Co., Inc. v. Dawson

• Decision Date: 28 May 2008
• Docket Number: No. 10-06-00228-CV.,10-06-00228-CV.
• Citation: 258 S.W.3d 694
• Parties: R.M. DUDLEY CONSTRUCTION COMPANY, INC., Appellant v. Dan DAWSON, William W. Dawson, Jr. (Dan Dawson's Dad), Rudy Briner, Steven Clark Hays and James K. Ashlock, Appellees.
• Court: Texas Court of Appeals

258 S.W.3d 694

R.M. DUDLEY CONSTRUCTION COMPANY, INC., Appellant v. Dan DAWSON, William W. Dawson, Jr. (Dan Dawson's Dad), Rudy Briner, Steven Clark Hays and James K. Ashlock, Appellees.

No. 10-06-00228-CV.

Court of Appeals of Texas, Waco.

May 28, 2008.

Rehearing Overruled July 29, 2008.

Robert A. Swearingen, Peterson & Swearingen LLP, College Station, TX, for Appellant.

Billy M. Payne, Payne, Watson, Miller, Malecheck & Scherr PC, Bryan, TX, for Appellees.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

BILL VANCE, Justice.

Carlos Martinez was a concrete supervisor for Appellant R.M. Dudley Construction Company (Dudley Construction), which is owned by Mark Dudley (Dudley). Dudley Construction did some work for Appellee Dan Dawson, and Martinez supervised the concrete crew on that job. Dawson subsequently hired Martinez to do some more construction work "on the side," and in doing so, Martinez used Dudley Construction's equipment, supplies, and employees who were being paid by Dudley Construction while doing the work on the side. Martinez was thus able to charge Dawson significantly less than the going rate for such work.

The other Appellees in this case—William W. Dawson, Jr. (Dan Dawson's Dad), Rudy Briner, Steven Clark Hays, and James K. Ashlock—all learned about Martinez's discounted, on-the-side construction work from each other and had Martinez do similarly discounted construction work for them. Dudley learned that Martinez had done work for the Appellees using Dudley Construction's equipment, supplies, and employees, and he filed constitutional and mechanic's and materialman's lien affidavits on the Appellees' properties where Martinez had done the concrete work on the side.

The Appellees filed a summary motion to remove Dudley Construction's liens under section 53.160 of the Property Code, claiming that the liens were invalid because they were filed on the Appellees' homestead properties and no written contracts were executed before the construction work commenced, as required by Property Code section 53.254.¹ See TEX. PROP.CODE ANN. §§ 53.160, 53.254 (Vernon 2007). The Appellees requested the trial court to remove the liens and to award them their attorney's fees under section 53.156. See id. §§ 53.156, 53.160. Dudley Construction answered, filing a general denial. It also filed a counterclaim entitled "Original Counterclaim and Suit to Foreclose Lien" and alleging claims for unjust enrichment, fraud, theft liability act, conversion, conspiracy, tortious interference with contractual relations, and quantum meruit.

The trial court issued an order finding that the liens are invalid and should be removed and instructing the county clerk of Brazos County to file the order to show that the liens are invalid and are to be removed so as not to be a cloud on the Appellees' property titles. A hearing on attorney's fees incurred to have the liens removed took place, but the trial court deferred ruling on the Appellees' request for attorney's fees until all issues in the case had been determined.

About ten months later, the Appellees answered Dudley Construction's counterclaim, asserting a general denial and their own counterclaim in which they claimed that Dudley Construction's counterclaim was "groundless in fact or brought in bad faith or brought for the purpose of harassment." The Appellees also sought to recover their attorney's fees in defending Dudley Construction's counterclaim.

A jury trial was held, and after Dudley Construction had rested, the trial court granted the Appellees' motion for directed verdict on all of Dudley Construction's claims except for its conspiracy-to-breach-fiduciary-duty claim against Appellees Dan Dawson and Rudy Briner. The jury found against Dudley Construction on that claim, and Dudley Construction thus took nothing on its counterclaim. The trial court did not submit any jury issues on the Appellees' remaining claims or on attorney's fees.

Continuance

We begin with Dudley Construction's second issue, which asserts that the trial court erred by denying its first and only motion for continuance. We review a ruling on a motion for continuance for abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986).

On August 12, 2005, this case was set for jury trial on December 5, 2005, with a final pretrial on December 2. The "notice of setting" states: "Conflicting settings of counsel will not be a reasonable ground [for a continuance] unless the conflicting setting was given prior in time to this notice, ..." At the December 2 final pretrial, the trial court sua sponte moved the trial to December 7. On December 6, Dudley Construction filed a motion for continuance, alleging that its attorney had received notice on November 30 that two of his clients in another legal proceeding had just been added to a NASD arbitration that was scheduled to begin on December 6. The trial court denied the motion, and another attorney from the law firm of Dudley Construction's attorney tried the case for Dudley Construction.

In general, absence of counsel is not good cause for a continuance, but the trial court has the discretion to allow a continuance if good cause is shown. TEX.R. CIV.P. 253; see Rehabilitation Facility at Austin, Inc. v. Cooper, 962 S.W.2d 151, 155 (Tex.App.-Austin 1998, no pet.) (citing State v. Crank, 666 S.W.2d 91, 94 (Tex.1984)). The record does not show the efforts, if any, taken by Dudley Construction's attorney to have the conflicting arbitration proceeding reset, nor does it adequately explain the arbitration's precedence over the December 5 jury trial setting for which notice was given on August 12. Furthermore, there is no explanation why the motion for continuance was filed after the pretrial and on the day before trial.

Nothing in the record suggests that the new attorney was incapable of rendering adequate representation or did not render adequate representation. See Rehabilitation Facility, 962 S.W.2d at 156 (citing Echols v. Brewer, 524 S.W.2d 731, 734 (Tex.Civ.App.-Houston [14th Dist.] 1975, no writ)). Dudley Construction points to the trial court's exclusion of some telephone records because they had not been timely produced, but the record does not reflect that a different ruling would have been made if Dudley Construction's original attorney had been present or that the records' exclusion prejudiced Dudley Construction.

Based on the circumstances in the record before us, we cannot say that the trial court abused its discretion. See id. at 155-56 (trial court did not abuse its discretion by denying continuance on ground that lead counsel for hospital was in trial for another client in another city where attorney from same law firm represented hospital at trial, and record did not indicate lead counsel had tried to avoid scheduling conflict or had demonstrated why other case took precedence over hospital's case). We overrule Dudley Construction's second issue.

Directed Verdict

The trial court directed a verdict and rendered judgment in favor Appellees William W. Dawson, Jr. (Dan Dawson's Dad), Hays, and Ashlock on all of Dudley Construction's claims (unjust enrichment, fraud, theft liability act, conversion, conspiracy, tortious interference with contractual relations, and quantum meruit) against them. It also directed a verdict in favor of Appellees Dan Dawson and Briner on Dudley Construction's claims for unjust enrichment, fraud, theft liability act, conversion, tortious interference with contractual relations, and quantum meruit, but not on the conspiracy claim. The only claim of Dudley Construction that the trial court submitted to the jury was its claim for conspiracy to breach fiduciary duty against Appellees Dan Dawson and Briner (i.e., that they conspired with Martinez to breach his fiduciary duty to Dudley Construction), and the jury found against Dudley Construction on that claim.

Dudley Construction's third issue complains that the trial court erred by entering a directed verdict on Dudley Construction's claims for quantum meruit and unjust enrichment against all the Appellees. Dudley Construction is not appealing the directed verdict in favor of Appellees William W. Dawson, Jr. (Dan Dawson's Dad), Hays, and Ashlock on its claims for fraud, theft liability act, conversion, conspiracy, and tortious interference with contractual relations. Dudley Construction is not appealing the directed verdict in favor of Appellees Dan Dawson and Rudy Briner on its claims for fraud, theft liability act, conversion, and tortious interference with contractual relations, nor is it appealing the adverse jury finding on its conspiracy claim against Appellees Dan Dawson and Briner.

In reviewing the granting of a motion for directed verdict, we follow the standards for assessing the legal sufficiency of the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 809-28 (Tex.2005). There is legally insufficient evidence or "no evidence" of a vital fact when (a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); see also Prudential Ins. Co. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex.2000) (directed verdict proper only when evidence conclusively establishes right of movant to judgment or negates right of opponent or evidence is insufficient to raise material fact issue); Cain v. Pruett, 938 S.W.2d 152, 160 (Tex App.-Dallas 1996, no writ) (directed verdict proper when evidence reflects no other verdict can be rendered and moving party is entitled to judgment as matter of law).

Quantum Meruit

Quantum meruit is an equitable theory of recovery intended to prevent...