Snyder v. Eanes Independent School Dist.

• Decision Date: 11 August 1993
• Docket Number: No. 3-92-568-CV,3-92-568-CV
• Citation: 860 S.W.2d 692
• Parties: James SNYDER, Individually and as Beneficiary as the Sole Stockholder of Phoenix Masonry of Texas, Inc., and Phoenix Masonry of Texas, Inc., a Dissolved Texas Corporation, Appellants, v. EANES INDEPENDENT SCHOOL DISTRICT, S. Don Rogers, and William H. Wheeless, Appellees.
• Court: Texas Court of Appeals

Page 692

860 S.W.2d 692

James SNYDER, Individually and as Beneficiary as the Sole

Stockholder of Phoenix Masonry of Texas, Inc., and Phoenix Masonry of Texas, Inc., a Dissolved Texas Corporation, Appellants, v. EANES INDEPENDENT SCHOOL DISTRICT, S. Don Rogers, and William H. Wheeless, Appellees.

No. 3-92-568-CV.

Court of Appeals of Texas,

Austin.

Aug. 11, 1993.

Rehearing Overruled Oct. 6, 1993.

Mr. Joseph R. Little, Law Offices of Joseph P. Webber, Austin, for appellants.

John J. McKetta, III, Graves, Dougherty, Hearon & Moody, Austin, for appellees.

Before CARROLL, C.J., and ABOUSSIE and JONES, JJ.

CARROLL, Chief Justice.

INTRODUCTION

This appeal arises from a lawsuit brought by James Snyder, as beneficiary of Phoenix Masonry of Texas, Inc., and Phoenix Masonry of Texas, Inc. (collectively, "Snyder"), appellants, alleging that Eanes Independent School District ("Eanes") breached two construction contracts between Phoenix and Eanes. Snyder later named as additional defendants S. Don Rogers, the superintendent of Eanes, and William H. Wheeless, the Director of Support Services for Eanes, alleging that they tortiously interfered with the contracts and negligently caused Phoenix financial injury. By two separate orders, the trial court rendered summary judgment in favor of each of the defendants; Snyder appeals. As to each defendant, we will affirm the judgment of the trial court.

BACKGROUND

On February 15, 1984, Phoenix and Eanes entered into a written construction contract whereby Phoenix was to perform masonry work in connection with the construction of a fine arts facility at Westlake High School. On November 13th of that same year, Phoenix and Eanes entered into a second contract for work on library and classroom additions at Westlake High School. Both contracts consist of forms printed by the American Institute of Architects and included documents titled "Standard Form of Agreement Between Owner and Contractor" (the "Standard Agreement") and "General Conditions of the Contract for Construction" (the "General Conditions"). The Standard Agreement provided for monthly progress payments by Eanes to Phoenix based upon certificates for payment to be issued by the architect. The General Conditions contained a provision stating that disputes were to be resolved through arbitration.

In July 1985, a dispute arose. The architect withheld certification for payment because of claimed mortar discoloration and unsatisfactory workmanship. Accordingly Snyder filed suit on August 3, 1988, against Eanes and several other defendants for additional damages related to the construction contracts. ¹ Snyder added Rogers and Wheeless as defendants in its fourth amended original pleading on November 18, 1991. Eanes, Rogers, and Wheeless moved for summary judgment. On January 14, 1992, the trial court granted Rogers and Wheeless's motions and on July 17, 1992, granted Eanes's motion. By six points of error, Snyder appeals from the rendition of summary judgment for the defendants.

Eanes stopped paying the monthly progress payments to Phoenix. Despite this dispute, Phoenix continued the work and finished both projects; upon completion, Eanes occupied the buildings. In December 1985, Phoenix filed a claim through arbitration to collect payment and damages from Eanes. On December 26, 1986, the arbitrator signed an award against Eanes and in favor of Phoenix for $124,915 plus pre-award and post-award interest. Eanes paid the award, including interest, on February 27, 1987.

DISCUSSION AND HOLDING

The Summary Judgment in Favor of Eanes

The order granting summary judgment for Eanes did not specify on which grounds the court relied. When an order does not give a specific ground for granting the summary judgment, the nonmovant on appeal must show why each ground asserted in the motion is insufficient to support the order. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex.1989); McCrea v. Cubilla Condominium Corp., 685 S.W.2d 755, 757 (Tex.App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.). To establish entitlement to summary judgment on Snyder's breach-of-contract claims, Eanes had the burden of conclusively negating at least one essential element of each claim or establishing an affirmative defense as a matter of law. See Citizens First Nat'l Bank v. Cinco Exploration Co., 540 S.W.2d 292, 294 (Tex.1976).

In point of error two, Snyder contends that the trial court erred in granting summary judgment for Eanes because genuine issues of material fact exist. In Snyder's response to Eanes's summary-judgment motion, Snyder admits that its fourth amended original petition contains several allegations already resolved in arbitration. Snyder alleges, however, that three acts or omissions by Eanes were breaches of the construction contracts not resolved in arbitration: (1) failing to pay the arbitration award in a timely manner; (2) contacting Phoenix's bonding company; and (3) failing to send a default notice to Phoenix. Snyder claims that genuine issues of material fact remain with regard to each of these alleged acts.

Eanes contends that the complained-of conduct did not breach any contractual provision. Furthermore, Eanes contends that any alleged damages were not contemplated by both parties at the time of contract formation and, thus, are not recoverable pursuant to the rule in Hadley v. Baxendale, 156 Eng.Rep. 145 (1854).

When a cause of action is based on breach of contract, the plaintiff must show that a contract existed between the parties, that the contract created duties, that the defendant breached a duty under the contract, and that the plaintiff sustained damages as a result. City of Corpus Christi v. Bayfront Assocs., Ltd., 814 S.W.2d 98, 103 (Tex.App.--Corpus Christi 1991, writ denied); Producer's Grain Corp. v. Lindsay, 603 S.W.2d 326, 328 (Tex.Civ.App.--Amarillo 1980, no writ). The parties do not dispute that a contract was formed and that duties were created. The parties dispute, however, whether the alleged acts or omissions of Eanes constituted a breach of any contractual duty.

A. Payment of the Arbitration Award

Snyder contends that Eanes breached the contracts by failing to pay, in a timely manner, the arbitration award rendered on December 26, 1986. Eanes paid the award by The meaning to be given language used in a contract is a question of law for the court, and such meaning shall be given as will carry out and effectuate, to the fullest extent, the parties' intentions. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). Snyder relies on section 9.7.1 of the General Conditions, which states in part, "[I]f the Owner does not pay the Contractor within seven days after the date established in the Contract Documents any amount ... awarded by arbitration, then the Contractor may, upon seven additional days' written notice to the Owner, the Architect and the Construction Manager, stop the Work until payment of the amount owing has been received."

February 27, 1987. Snyder asserts that the contract required Eanes to pay the arbitration award within seven days after awarded. In the alternative, Snyder claims that the contracts are ambiguous regarding the payment deadline of the arbitration award and that this ambiguity raises a fact issue as to a reasonable time for payment of the award, thus precluding the rendition of summary judgment.

Snyder's argument that section 9.7.1 of the General Conditions provides a seven-day period for payment of arbitration awards fails in two respects. First, the section does not include a covenant to pay an award within a specified time; rather, it provides the contractor with a right to stop work if payment is not made. A "condition" in a contract is a clause which has for its object the suspension, rescission, or modification of the principal obligation. George v. Houston Boxing Club, Inc., 423 S.W.2d 128, 132 (Tex.Civ.App.--Houston [14th Dist.] 1967, writ ref'd n.r.e.). Although no particular words are necessary for the existence of a condition, such terms as "if," "provided that," "on condition that," or some other phrase that conditions performance usually connote an intent for a condition rather than a promise. Criswell v. European Crossroads Shopping Ctr., Ltd., 792 S.W.2d 945, 948 (Tex.1990); Schwarz-Jordan, Inc. v. Delisle Constr., 569 S.W.2d 878, 881 (Tex.1978); Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex.1976); Landscape Design & Constr., Inc. v. Harold Thomas Excavating, Inc., 604 S.W.2d 374, 377 (Tex.Civ.App.--Dallas 1980, writ ref'd n.r.e.). Here, section 9.7.1 merely provides Phoenix the right to stop work until payment is made. Hence, this provision is not applicable because at the time the arbitration award was rendered, Phoenix had already completed both projects. Furthermore, section 9.7.1 does not apply because it states that the owner (Eanes) must pay an award within seven days after the date established in the Contract Documents; the contract fails to provide a payment schedule with respect to arbitration awards. Because this contract provision is not applicable, Snyder's argument that there was a seven-day period for payment is without merit.

We also conclude that the contracts are not ambiguous with respect to arbitration award payments. Whether a contract is ambiguous is a question of law for the court, considering the contract as a whole and in light of the circumstances existing at the time the contract was formed. Reilly v. Rangers Management, Inc., 727 S.W.2d 527, 529 (Tex.1987); Coker, 650 S.W.2d at 394. If a contract is so worded that it can be given a certain and definite meaning or interpretation, it is not ambiguous. Coker, 650 S.W.2d at 393. A writing is ambiguous only when, after application of pertinent rules of interpretation, the face of the writing indicates genuine uncertainty as to which meaning of its terms is proper. Capitol Rod & Gun Club v. Lower Colo. River Auth., 622 S.W.2d 887, 894 (Tex.App.--Austin 1981...