Tribble & Stephens Co. v. Consolidated Services, Inc.

• Decision Date: 16 December 1987
• Docket Number: No. 04-86-00500-CV,04-86-00500-CV
• Citation: 744 S.W.2d 945
• Parties: TRIBBLE & STEPHENS CO., et al., Appellants, v. CONSOLIDATED SERVICES, INC., Appellee.
• Court: Texas Court of Appeals

Page 945

744 S.W.2d 945

TRIBBLE & STEPHENS CO., et al., Appellants, v. CONSOLIDATED SERVICES, INC., Appellee.

No. 04-86-00500-CV.

Court of Appeals of Texas San Antonio.

Dec. 16, 1987.

Rehearing Denied Feb. 22, 1988.

John T. Schneider, Craig E. Power, John S. Torigian, Houston, for appellants.

Charles W. King, C.J. House, San Antonio, for appellee.

Before ESQUIVEL, REEVES and DIAL, JJ.

OPINION

DIAL, Justice.

This is a suit under a construction contract.

Appellee, Consolidated Services, Inc., is an electrical subcontractor and was awarded the contract to perform electrical work on the building of a Target store in San Antonio. Appellants, Tribble & Stephens Company and the Dayton-Hudson Corp., general contractor, oversaw and organized the work to be done on the project by the various subcontractors. Bob Law, the foreman for Tribble & Stephens Company, fired Consolidated Services, Inc. from the job and hired Collier Electric to complete the electrical work. Consolidated Services, Inc. brought suit against the general contractor and Dayton-Hudson Corp., the owner of the Target store, alleging wrongful termination of the contract and conversion of materials and tools.

Appellants appeal the judgment of the trial court which awarded appellee $70,054.00 actual damages for breach of contract, $1,470.00 damages for conversion, $25,000.00 exemplary damages, foreclosure of its mechanic's and materialman's lien, attorneys fees, and pre- and post-judgment interest. Appellants contend there is no evidence or insufficient evidence to support the jury's findings of a conversion, $1,470.00 damages for conversion, malice (and the award of exemplary damages), breach of contract, and $70,054.00 damages under the contract; that there is no evidence or insufficient evidence and no special issues or findings to support the trial court's judgment of foreclosure of the mechanic's and materialman's lien; and that the jury findings of a conversion and the amount of $1,470.00 as damages irreconcilably conflict.

Appellee urges us not to consider several of appellants' points of error because they are multifarious. We do not find them to be so.

In order to present a "no evidence" point on appeal, the complaining party must have brought the complaint to the attention of the trial court. He can do this by one of five ways:

(1) file a motion for instructed verdict;

(2) object to the submission of a vital fact issue;

(3) file a motion for judgment non obstante veredicto;

(4) file a motion to disregard the jury's answer to a vital fact issue; or

(5) file a motion for new trial specifically raising the complaint. Aero Energy, Inc. v. Circle C. Drilling Co., 699 S.W.2d 821, 822 (Tex.1985).

A complaint in a motion for new trial that the jury's answers to specific special issues are "contrary to the great weight and overwhelming preponderance of the evidence, and in any event, as a matter of law, plaintiff is entitled to a new trial" is sufficient to support a factual insufficiency claim. Cavitt v. Jetton's Greenway Plaza Cafeteria, 563 S.W.2d 319, 321 (Tex.Civ.App.-Houston [1st Dist.] 1978, no writ).

When appellant points out that the evidence can show only one state of facts, the complaint is a no evidence point, as is a complaint that the findings are not supported by any legal, competent evidence. Soto v. Doehne, 625 S.W.2d 60, 62 (Tex.App.-San Antonio 1981, no writ). Legal sufficiency of the evidence is raised by complaints that the evidence "clearly showed" a state of facts or "compels" a certain finding or conclusion, La Sara Grain Co. v. First National Bank of Mercedes, 673 S.W.2d 558, 568 (Tex.1984); Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982), that the "undisputed" evidence establishes the existence of a fact, Royal Indemnity Co. v. Hume, 477 S.W.2d 683, 687 (Tex.Civ.App.-San Antonio 1972, no writ), or that certain findings are without any support in the evidence and are against the uncontradicted testimony, Spurlock v. Burnette, 365 S.W.2d 812, 814 (Tex.Civ.App.-Austin 1963, no writ).

In studying the substance of each complaint raised in the motion for new trial, we find appellants did make the trial court aware of their complaint that the evidence was both factually and legally insufficient to support the jury findings. ¹

On review of a legal insufficiency point of error we consider only that evidence and the reasonable inferences that can be drawn therefrom, in their most favorable light, to support the jury's findings while disregarding all others. McKnight v. Hill & Hill Exterminators, Inc., 689 S.W.2d 206, 207 (Tex.1985); Glover v. Texas General Indemnity Co., 619 S.W.2d 400, 401 (Tex.1981).

In determining the factual sufficiency of the evidence we must consider and weigh all the evidence, set aside the judgment, and order a new trial if the verdict is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

BREACH OF CONTRACT

The testimony presented by the parties was conflicting as to whether Consolidated Services, Inc. attended progress meetings held by Tribble & Stephens Company with the subcontractors or was aware of any scheduled completion date or project schedule, whether extras completed by Consolidated Services, Inc. were authorized orally (though the contract required written changes only), whether Consolidated Services, Inc. was prevented from timely completing its work due to poor job coordination on behalf of Tribble & Stephens Company, whether Consolidated Services, Inc. had a sufficient number of workers on the job, and how much work Consolidated Services, Inc. actually completed before it was removed from the job. Evidence was produced supporting each side of these issues.

Evidence was presented which, if believed, tended to show that Consolidated Services, Inc. was prevented from timely completing its work due to a lack of materials to be provided by Target and a lack of adequate job coordination by Tribble & Stephens Company. Specific examples of these are seen in the testimony by the Wades (appellees) that pig tails (electrical connections) were too short and Consolidated Services, Inc. had to move junction boxes to accommodate the shorter tails, that the kitchen equipment to be supplied by Target did not arrive timely so that Consolidated Services, Inc. could wire the area, that the original plans given Consolidated Services, Inc. deviated from subsequent plans specifying the location of the cash register counters which resulted in the floor boxes being located in the wrong area, and the testimony of George Tenney, area superintendent for Collier Electric, that beams for the soffit were not completed even by the time Collier Electric, the replacement electrical subcontractor, took over, thus preventing Consolidated Services, Inc. from installing the soffit light fixtures. Tribble & Stephens Company's attitude toward changes, such as demanding that Consolidated Services, Inc. redo the check out counters without a written change order as well as their threat to Consolidated Services, Inc. to terminate the contract should they not complete this and other changes, provides a sufficient basis for the jury to make its finding that Tribble & Stephens Company breached the contract. There is evidence, and it is more than a scintilla, to support this finding.

Ken Norton, Tribble & Stephens Company's project manager, testified that Consolidated Services, Inc. was terminated due to non-performance "in the aspect of not supporting, and not helping us, keep up with the project schedule. The continued reluctance to provide more man power on the job to meet those needs." There is sufficient evidence that Consolidated Services, Inc. was prevented from timely performing its electrical work due to circumstances controlled by Target and Tribble & Stephens Company which would not justify Tribble & Stephens Company's termination of the contract. There is also evidence the jury could believe that Consolidated Services, Inc. did supply sufficient manpower for the job. Thus, the jury's finding that Tribble & Stephens Company wrongfully terminated the contract is supported by the evidence and is not so against the overwhelming weight and credibility of the evidence as to be manifestly unjust.

The jury is the finder of fact and had the opportunity to observe the witnesses and determine their credibility. As such, they resolved the conflict in favor of Consolidated Services, Inc. Thus, we must overrule appellants' factual insufficiency complaints. In the absence of a total lack of evidence on the issue, we cannot sustain appellants' no evidence points. Appellants' points of error 13 and 14 are overruled.

Appellants raise evidentiary sufficiency points concerning the award of $70,054.00 as contract damages and urge that the award is clearly excessive. In their substantive argument under these points they claim the proper measure of damages was not submitted to the jury and that Consolidated Services, Inc. failed to present evidence on the proper measure.

Appellants failed to raise the issue of an improper measure of damages in the trial court and thus waived review of their complaint. Nelson Cash Register, Inc. v. Data Terminal Systems, Inc., 671 S.W.2d 594, 599 (Tex.App.-San Antonio 1984, no writ); Pool v. Dickson, 512 S.W.2d 68, 70 (Tex.Civ.App.-Tyler 1974, no writ); Success Motivation Institute, Inc. v. Lawlis, 503 S.W.2d 864, 867 (Tex.Civ.App.-Houston [1st Dist.] 1973, writ ref'd n.r.e.).

The trial court submitted the following special issue on contract damages:

SPECIAL ISSUE NO. 2:

What damages, if any, do you find from a preponderance of the evidence resulted from the said breach of contract, if any you have so found?

ANSWER: In Dollars and Cents, if any.

ANSWER: $70,054.00

Justo Garcia, a dry wall subcontractor for Tribble & Stephens...