Sub-Surface Const. Co. v. Bryant-Curington, Inc.
| Citation | 533 S.W.2d 452 |
| Decision Date | 04 February 1976 |
| Docket Number | INC,No. 12356,SUB-SURFACE,BRYANT-CURINGTO,12356 |
| Parties | CONSTRUCTION COMPANY et al., Appellants, v., et al., Appellees. |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
Charlie D. Dye, Scott R. Kidd, Brown, Maroney, Rose, Baker & Barber, Austin, for appellants.
Douglass D. Hearne, Stayton, Maloney, Hearne & Babb, Austin, for Bryant-Curington, Inc.
Leonard L. Gorin, Clark, Fisher, Gorin, McDonald & Ragland, Waco, for Aqua Water Supply Corp.
This is an appeal from the judgment of the district court of Travis County dismissing a declaratory judgment action for want of jurisdiction.
Appellant, Sub-Surface Construction Company, filed a declaratory judgment action in the district court of Travis County against appellee Aqua Water Supply Corporation and appellee Bryant-Curington, Inc. Appellant, Robintech, Incorporated, filed a petition in intervention. Appellee Bryant-Curington, Inc., responded to the suit by filing a plea to the jurisdiction. Appellee Aqua Water Supply Corporation filed a plea of privilege to be sued in the county of its residence, Bastrop County. In addition, Aqua Water Supply Corporation asserted in its answer that the district court had no jurisdiction or authority to enter an order granting the relief appellants sought.
In this opinion Sub-Surface Construction, Inc., and Robintech, Inc ., will be referred to as 'Sub-Surface' or 'appellant' and 'Robintech.' Appellees Bryant-Curington, Inc., and Aqua Water Supply Corporation will be labeled 'Bryant-Curington' and 'Aqua Water.'
After the hearing the court entered judgment sustaining the plea to the jurisdiction and dismissing appellants' declaratory judgment action. We will affirm that judgment.
In 1970, appellant Sub-Surface entered into a written contract with appellee Aqua Water to construct a water supply and distribution system which was to be located in Bastrop and Travis Counties. The plans and specifications for the system were prepared by appellee, Bryant-Curington. Appellant Robintech was not a party to the contract, but it did supply pipe for use in the system as well as the glue used in cementing together the joints of the pipe.
The contract provided that upon completion and acceptance of the work, the engineer would issue a certificate of completion and acceptance. Sub-Surface undertook the construction of the water system, and Aqua Water made payments to it less retainage.
In its trial petition Sub-Surface claimed that it had substantially complied with the contract to construct the water system according to the plans and specifications, and that it had also performed maintenance work on the system in accordance with the contract. Pursuant to the contract Sub-Surface called for a final inspection of the work, but Bryant-Curington refused to issue its certificate that the work had been completed and further refused to inform appellant in what respect the work was incomplete. Sub-Surface claimed that Aqua Water Supply ratified the refusal of Bryant-Curington to issue the certificate of completion, and, as a result, both appellees were in breach of the contract in that respect.
Sub-Surface declared further that Aqua Water, outside of the procedures called for in the contract, made demand upon it to perform many items of work in the system, and that it had complied with those demands. Sub-Surface also alleged that Bryant-Curington prepared the specifications for the water system knowing that contractors would submit bids for the construction of the system based upon its specifications and based upon the belief that the specifications were satisfactory to the owner. Sub-Surface maintained that its work on the system was in accordance with the specifications prepared by Bryant-Curington. The failure of the system to function, pleaded Sub-Surface, was due to the negligence of Bryant-Curington in the formulation of the design of the water system. Sub-Surface then pleaded that Bryant-Curington was liable to Aqua Water for any damages sustained by Aqua Water, and '. . . in the unlikely event that plaintiff (Sub-Surface) has any remote liability to defendant, Aqua Water Supply Corporation, then defendant, Bryant-Curington, Inc., is liable in a like sum to plaintiff (Sub-Surface) by way of indemnity, or in the alternative, plaintiff seeks contribution from defendant, Bryant-Curington, Inc.'
Finally in its prayer for relief, appellant prayed that the court '. . . declare the rights, duties and obligations of the parties, including a declaration that plaintiff (Sub-Surface) is not liabile to defendant, Aqua Water Supply Corporation, or, in the alternative, that judgment be entered for defendant Aqua Water Supply Corporation, for such damages as the court may find and in favor of plaintiff for indemnity or contribution against defendant, Bryant-Curington, Inc. . . .'
In its trial pleading Robintech alleged that it manufactured and supplied the pipe used by Sub-Surface in the water system, and that such pipe conformed to the requirements of the plans and specifications prepared by Bryant-Curington. Robintech sought to have the court declare it had supplied pipe and materials of good and workmanlike quality in conformance with the plans and specifications. Robintech also sought a declaration that the pipe and materials were not defective and that it
The evidence at the hearing showed that after the pipeline was laid as many as 1500 leaks were discovered in the line. There was testimony that the leaks were caused by glue burns that resulted from an improper applicable of the glue to the pipe joints. Sub-Surface maintained a crew of men on the job to repair the leaks as discovered. The testimony was that the leaks had begun at the time of the installation of the pipeline and had continued up until the time of the hearing....
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