Roy L. Martin and Associates, Limited v. Renfro

Decision Date14 June 1972
Docket NumberNo. 15041,15041
Citation483 S.W.2d 845
CourtTexas Court of Appeals
PartiesROY L. MARTIN & ASSOCIATES, LIMITED, et al., Appellants, v. Bob R. RENFRO et al., Appellees.

Foster, Lewis, Langley, Gardner & Bannack, Ralph Langley, Robert W. Wachsmuth, San Antonio, for appellants.

E. S. Prashner, Johnson & Christopher, Joe D. Prickett & Associates, Clemens, Knight, Weiss & Spencer, Thomas M. Thurmond, San Antonio, for appellees.

BARROW, Chief Justice.

Appellants, Roy L. Martin & Associates, Limited, and Alamo Lumber Company, brought suit against appellees, Bob R. Renfro, John Hester and H. T. Hardin d/b/a R & C Construction Company, and/or R & H Construction Company, and Fidelity and Deposit Company of Maryland, to recover damages for breach of a written subcontract for the construction of foundation and concrete work on the Fair Park Shopping Center in San Antonio. The appellees, except Fidelity and Deposit, who had issued performance and payment bonds on behalf of R & C Construction Company covering this job, counterclaimed for damages under the same contract and on a quantum meruit. Recovery was also sought by these appellees for sums due for work performed on a job in Alice. In addition, all defendants except Renfro sought indemnity from other defendants.

Judgment was entered after a lengthy jury trial whereby appellants recovered nothing; Renfro and Hardin recovered from appellants the sum of $32,218.10 on a quantum meruit on the San Antonio job; Renfro and Hester recovered from appellants the sum of $5,535.20 on the Alice job; Renfro and Hardin recovered from appellants the sum of $3,500.00 for attorneys' fee in connection with the San Antonio claim; Renfro and Hester recovered from appellants the sum of $1,500 .00 for attorneys' fee in connection with the Alice claim; Fidelity and Deposit recovered from Renfro, Hester and Hardin the sum of $5,000.00 for attorneys' fee; and all costs of court were adjudged against appellants.

On June 1, 1969, Roy L. Martin & Associates, hereinafter referred to as Martin, entered into a written contract with Alamo Lumber Company, whereby Alamo agreed to construct Fair Park Shopping Center for Martin. Contrary to the written agreement, the parties actually intended for Alamo to assume only the financial burdens of the contract, and Martin was to actually perform the usual tasks of the general contractor. These parties had at least three other similar projects underway in the same fashion. Nevertheless, this subterfuge undoubtedly contributed to the complexity of the problem before us.

In June, 1969, Renfro went into business under the name of R & C Construction Company and solicited the foundation and concrete work on this job. Soon thereafter, Hester became a partner in this company. A Martin employee, John McGrath, who was employed by Martin until about August 15, 1969, negotiated with Renfro and Hester and furnished plans dated April 17, 1969. These plans contained specifications for the Woolco store, but not the Kress and Foodway stores. Nevertheless, the written subcontract entered into on July 28, 1969, between Alamo (although the negotiations were actually by Martin) and Renfro and Hester, d/b/a R & C Construction Company, provides that the latter agreed to perform the foundation and concrete work in accord with the plans of April 17, 1969. Notwithstanding this provision, Martin asserts that the parties contemplated using the plans of April 17 for the Woolco store and plans dated June 24th for the other two stores. 1 On September 17, 1969, Fidelity and Deposit issued performance and payment bonds for R & C covering the performance of this contract.

Renfro and Hester had little capital, and in September, 1969, experienced financial difficulty. One of the disputed issues is over the cause of this financial difficulty--whether it was unprecedented rainfall which delayed the job, failure of Martin to make progress payments as promised or whether R & C was under-financed. Nevertheless, on October 7, 1969, Renfro bought out the interest of Hester, and on October 9, 1969, Renfro entered into a contract with Hardin whereby the two formed a partnership d/b/a R & H Construction Company to complete this job. Hardin advanced additional capital and was to receive half of the profits of the job . On October 10, 1969, Martin was notified in writing of Hester's release and the contract between Renfro and Hardin. There was no evidence that Martin acknowledged this notification, but subsequent correspondence continued to be addressed to R & C.

The contractual relationship between Martin and Renfro d/b/a R & C Construction Company was terminated by Martin's letter dated October 27, 1969. A large part of the conflicting testimony relates to the question of the responsibility for such termination and the value of the work which had been completed.

Early in October, Renfro sought additional compensation from Martin because of asserted changes in the foundation from that proposed in the original plans. It is undisputed that the April 17, 1969, plans called for the grade beams to be at a depth of two feet. After the job was started, it was determined that the fill dirt was unsatisfactory and the beams must be placed on virgin soil, which required piers and beams to be at depths from two to seven feet. This change unquestionably required the use of more labor and materials by the subcontractor than the original plans of two feet. Renfro testified that this change was made by the revised plans of September 30th, whereas Martin contended that the plans of June 24th showed this change. Nevertheless, discussions regarding these extras were unsatisfactory and inconclusive.

On October 20, 1969, the construction coordinator for Martin wrote Renfro, d/b/a R & C, and suggested that the request for extras be put in writing to be approved or disapproved by Martin. Renfro was asked to stipulate in this written request whether he would proceed with the project if the extras were disapproved. The subcontract called for completion in 60 days, and the coordinator wrote that this time had been expired for 27 days, yet the job was only partially completed. On October 21, 1969, Renfro wrote and requested additional compensation of $8,792.00 to cover changes that were not in the original proposal. He advised that if this request for additional compensation of $8,792.00 was not approved, he would have to pull off the Kress and Foodway stores and charge for work completed. On October 27, 1969, the coordinator wrote and refused outright this additional charge. 2 He further advised that the contract was being terminated because of stated deficiencies in the work as well as because of the failure to complete the job within the time authorized by the contract. Martin took over completion of the foundation work, and in February, 1970, filed this suit wherein it was alleged that the completion of this subcontract cost Martin $91,000.00 over R & C's bid and sought to recover this sum.

It is seen that most of the issues submitted to the jury were resolved favorably to defendants. 3 The jury found that the parties, in signing the subcontract on July 28, 1969, did not contemplate that the plans of June 24, 1969, would be used for the Kress and Foodway stores. The jury also found that excessive rainfall and failure of the site contractors to properly prepare the site were proximate causes of R & C's failure to complete the contract in 60 calendar days. In any event, the time completion provision was waived by Martin. The jury also found that Martin's foreman (McGrath) made a material false representation to Renfro before the contract was signed that the concrete could be purchased at $11.50 per cubic yard, and that Renfro would not have signed the contract but for such representation. The subcontractors were thus permitted to recover on their quantum meruit plea for the reasonable value of the labor and material furnished on this job.

Appellants, Alamo/Martin, assert five assignments of error. The first two points complain of the action of the trial court in allowing each of the four defendants six peremptory challenges. Under the third point, appellants urge that the trial court erred in submitting special issues on fraud in the inductment of the contract; and under the fourth point, appellants assert that the trial court submitted an improper measure of damages. The fifth point seeks a remand because of six alleged Cumulative errors, which are of both a procedural and substantive nature.

Rule 233, Texas Rules of Civil Procedure, provides that each party to a civil suit shall be entitled to six peremptory challenges in a case tried in the district court. It is now well settled that the word 'party' as used in this rule does not mean the same thing as the word 'person' and whether multiple defendants are entitled to separate peremptory challenges '. . . depends on whether their interests are, at least in part, antagonistic in a matter that the jury is to be concerned with.' Retail Credit Co. v. Hyman,316 S.W.2d 769, 771 (Tex.Civ.App.--Houston 1958, writ ref'd), approved Tamburello v. Welch, 392 S.W.2d 114 (Tex.1965).

From hindsight, it is obvious that the trial court erred in granting each of the defendants six peremptory challenges. Defendants are not antagonistic with each other on any of the jury issues. Furthermore, an examination of the record demonstrates that there was close cooperation and unanimity among said defendants throughout the trial, from the selection of the jury through the final arguments. 4 Forty-two prospective jurors were examined and although there were duplicate strikes in two instances between appellants and one of the defendants, each of the four defendants exercised his six peremptory challenges without duplication with each other. Nevertheless, it is settled law that this question is not one to be determined by hindsight,...

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    • Texas Court of Appeals
    • February 23, 2006
    ...Tamburello's materially-unfair-trial test and reached other noteworthy decisions in cases such as Roy L. Martin & Assocs., Ltd. v. Renfro, 483 S.W.2d 845, 851-52 (Tex.App.-San Antonio 1972) and Perkins v. Freeman, 518 S.W.2d 532, 534 (Tex.1974). The court ultimately relied on its precedent ......
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    ...293 Minn. 483, 198 N.W.2d 146, 149--150 (1972); Tamburello v. Welch, 392 S.W.2d 114, 116--118 (Tex.1965); Roy L. Martin & Associates, Limited v. Renfro, 483 S.W.2d 845, 849--851 (Tex.Civ.App.--San Antonio 1972, no writ), with Moran v. Jones, 75 Ariz. 175, 253 P.2d 891, 892--895 (1953); Cart......
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