Tacon Mechanical Contractors, Inc. v. Grant Sheet Metal, Inc.

• Decision Date: 08 December 1994
• Docket Number: No. B14-93-00470-CV,B14-93-00470-CV
• Citation: 889 S.W.2d 666
• Parties: TACON MECHANICAL CONTRACTORS, INC., Appellant, v. GRANT SHEET METAL, INC., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 666

889 S.W.2d 666

TACON MECHANICAL CONTRACTORS, INC., Appellant, v. GRANT SHEET METAL, INC., Appellee.

No. B14-93-00470-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Dec. 8, 1994.

Rehearing Overruled Dec. 29, 1994.

Eric Carter, James L. Deem, Dallas, for appellant.

Gregory M. Cokinos, Craig E. Power, Douglas R. Drucker, Houston, Marc J. Wojciechowski, Marvin Moos, David A. Ward, Jr., Woodlands, for appellee.

OPINION

SEARS, Justice.

Tacon Mechanical Contractors, Inc., appeals from a judgment awarding Grant Sheet Metal, Inc. actual damages of $130,368.50 and exemplary damages of $150,000.00. Tacon raises twenty-two points of error, primarily challenging the legal and factual sufficiency of the evidence supporting the jury findings of liability, damages, and attorney fees. Grant brings one cross-point claiming the appeal was taken for delay and without sufficient cause. We affirm the trial court's judgment.

Tacon is a mechanical contractor that was responsible for installation of heating, ventilation, air conditioning (HVAC) and plumbing work on four construction projects. Grant was a subcontractor of Tacon, responsible for fabrication and installation of HVAC duct work. The parties encountered problems on the job. Tacon complained that Grant did not keep sufficient personnel, and Grant complained that Tacon caused interference on the job by running pipe through spaces designated for Grant's prefabricated duct work. Grant also complained that Tacon wrongfully withheld payment for work performed.

Tacon terminated Grant in April 1986, before completion of the projects. Grant then filed suit against Tacon and the sureties on the bonds on the various jobs. Tacon filed a cross-claim alleging breach of contract. The jury found that Tacon breached all four contracts, intentionally interfered with Grant's work on three of the projects, wrongfully terminated Grant, and misapplied construction trust funds. The jury awarded Grant actual damages from Tacon and the sureties, and assessed exemplary damages against Tacon. The jury found no breach of contract by Grant.

Most of Tacon's points of error are challenges to the legal and factual sufficiency of the evidence supporting the jury findings of liability and damages. Therefore, we first set out the standard of review applicable to such challenges.

When a party challenges the legal sufficiency of an adverse finding, it must demonstrate that there is no evidence supporting the finding. In reviewing "no evidence" points of error, an appellate court must consider only the evidence and inferences tending to support the finding and disregard all contrary evidence and inferences. Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992). If there is any evidence of probative force to support the finding, the point must be overruled. Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex.1989).

When a party claims the evidence is factually insufficient to support a finding, the appellate court must consider all of the evidence. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). Having done so, the court should set aside the verdict only if the evidence is so weak as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

In point of error one, Tacon challenges the factual and legal sufficiency of the evidence supporting the jury's finding that Tacon breached all of its contracts with Grant. Tacon contends the evidence conclusively established that Tacon terminated the contracts after Grant had breached them. Furthermore, Tacon claims the jury issue on contract damages was erroneously submitted because Grant pled only "substantial performance."

Our review of the record reveals that Tacon terminated Grant for the stated reasons that Grant did not maintain adequate materials or qualified personnel on the job. Gene Grant, owner of Grant Sheet Metal, and Ralph May, former employee, testified that Grant had an adequate number of sufficiently experienced personnel on all of the job sites. Leroy Leuder, formerly a general foreman for Grant, testified that he kept a daily log of the number of employees working and that he gave a copy of this to the general contractor. These logs were admitted into evidence. Leuder testified that he was unaware of any complaints about Grant's personnel until just before Grant was terminated. Leuder further testified that Tacon was responsible for furnishing smoke dampers and they ordered the wrong size for the job.

Although Tacon presented evidence of defects in Grant's performance, Grant's evidence is sufficient to support the jury's verdict. Certainly, the jury's finding is not "so contrary to the overwhelming weight of the evidence as to be clearly wrong unjust." Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). Thus, we overrule point of error one.

In point of error two, Tacon challenges the sufficiency of the evidence supporting the awards of damages because these amounts were based on the full contract price and Grant did not perform the full amount of work. Because our analysis of this point of error relates to our analysis of point of error three, we turn first to that point.

In point of error three, Tacon claims the evidence is legally and factually insufficient to support the jury's finding that Tacon wrongfully interfered with Grant's performance. Tacon's argument under this point of error consists of six sentences, broadly asserting there is no evidence, that Tacon rightfully terminated Grant, and that testimony by Robert Rimkus was based on unsubstantiated hearsay to which Tacon objected. Tacon does not provide any citations to the record for these assertions and does not present any argument for its alternative contention that the evidence is factually insufficient. Because Tacon has presented no argument or citations to authority or to the record regarding its factual insufficiency claim, we find that claim waived. See White v. Bath, 825 S.W.2d 227, 230 (Tex.App.--Houston [14th Dist.] 1992, writ denied), cert. denied, 507 U.S. 1039, 113 S.Ct. 1868, 123 L.Ed.2d 488 (1993). Although we find Tacon's argument regarding legal insufficiency deficient, primarily for lack of citations to the record, we will consider that contention.

Tacon cites Black Lake Pipe Line Co. v. Union Construction Co., 538 S.W.2d 80 (Tex.1976) in support of its contention that Tacon's termination of Grant was not interference that would entitle Grant to recover damages. Grant claimed, however, that Tacon interfered by failing to procure certain materials and by installing piping in the space designated for Grant's duct work. There is evidence showing that Tacon installed pipe in spaces designated for Grant's duct work, that Tacon failed to pay Grant in a timely manner, and that Tacon gave Grant payment by check that was returned by the bank for insufficient funds. There is also testimony by Paul Avenell of Tacon that Grant completed its work on the New Caney High School project. This evidence is sufficient to support the jury's finding of wrongful interference. With a legal sufficiency challenge, an appellate court may not second guess a factfinder "unless only one inference could be drawn from the evidence." State v. $11,014.00, 820 S.W.2d 783, 785 (Tex.1991). We overrule point of error three.

Next, we must determine whether Grant was entitled to recover full contract damages. A nonbreaching party is generally entitled to all its actual damages necessary to put it in the same economic position it would have been in had the contract not been breached. General Elec. Supply Co. v. Gulf Electroquip, Inc., 857 S.W.2d 591, 599 (Tex.App.--Houston [1st Dist.] 1993, writ denied). Tacon argues that Grant did not complete the work on the projects and, thus, is not entitled to full payment. This assertion, however, ignores case law regarding wrongful interference with contract performance. When one party to a contract, by wrongful means, prevents the other party from performing, this interference with performance constitutes breach of contract. S.K.Y. Inv. Corp. v. H.E. Butt Grocery Co., 440 S.W.2d 885, 889 (Tex.Civ.App.--Corpus Christi 1969, no writ). Such a breach not only excuses performance by the injured party, but also entitles him to recover damages sustained by reason of the breach. Id. at 889-890.

Because there was sufficient evidence to support the jury's findings that Tacon wrongfully interfered with Grant's performance of these contracts, Grant was entitled to recover the damages it sustained as a result of Tacon's breach. S.K.Y. Inv. Corp., 440 S.W.2d at 889. There is evidence in the record supporting the amounts awarded by the jury.

Tacon, however, claims that Grant could only recover damages pursuant to the doctrine of substantial performance and that Grant failed to establish the requisite elements of that doctrine. The doctrine of substantial performance allows a party to a contract, who is himself in breach but who nevertheless substantially completed performance, to recover damages for that performance. Dobbins v. Redden, 785 S.W.2d 377, 378 (Tex.1990). The jury found that Tacon, and not Grant, breached the contract. Therefore, the doctrine of substantial performance is inapplicable. Accordingly, we overrule point of error two.

In point of error four, Tacon contends the evidence was legally and factually insufficient to support the jury's findings as to all amounts of damages for interference. As under point of error three, Tacon's argument under this point of error does not mention its factual insufficiency claim or cite any authority or reference to the record regarding this contention. Therefore, we hold that Tacon has waived its factual insufficiency claim. See White, 825 S.W.2d at 230. We turn to Tacon's legal insufficiency claim.

Each of the contracts contain the following clause:

Should Contractor [Tacon] delay Subcontractor's [Grant's] work, then and in such event...