Turner, Collie & Braden, Inc. v. Brookhollow, Inc.

• Decision Date: 04 June 1981
• Docket Number: No. 17818,17818
• Citation: 624 S.W.2d 203
• Parties: TURNER, COLLIE & BRADEN, INC., Appellant, v. BROOKHOLLOW, INC. et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 203

624 S.W.2d 203

TURNER, COLLIE & BRADEN, INC., Appellant, v. BROOKHOLLOW, INC. et al., Appellees.

No. 17818 Court of Civil Appeals of Texas, Houston (1st Dist.).

June 4, 1981.

Rehearing Denied Aug. 6, 1981.

Fulbright & Jaworski, Frank G. Jones, Roger Townsend, Houston, for appellant.

Johnson, Swanson & Barbee, Merril L. Hartman, Charles W. Cunningham, Houston, for appellees.

Before WARREN, EVANS and DOYLE, JJ.

WARREN, Justice.

This is an appeal from a judgment granting appellees indemnity against appellant from an award of the jury in favor of the general contractor, Whitelak, Inc., and from an additional award of damages in favor of appellees against appellant. No appeal was taken from the judgment in favor of Whitelak, Inc.

Whitelak, Inc., as general contractor, agreed to construct an underground sewer system for appellees. Appellant was hired by appellees to act as the engineer on the project. The underground system was built at a depth which was beneath the water table in the area of construction. The line was completed, but before final inspection was made, numerous leaks and cracks in the line were discovered. The contractor undertook to repair these defects, but the repairs were interrupted by a dispute with an abutting landowner who alleged an encroachment and claimed that the line as built was causing damages to his property. Several months later this dispute was resolved and the contractor resumed its repair efforts. Thereafter, the contractor abandoned the repair efforts and demanded payment for the work and materials expended by it in its attempts to repair the line. Shortly thereafter, appellees abandoned the line and decided to construct another line shallower than the one already in place.

The general contractor sued appellees for the extra work it performed while attempting to repair the line. Appellees sued appellant for indemnity against the claims of the contractor and for other damages it allegedly incurred because of appellant's negligent engineering services. Appellant brought a counterclaim against appellees for unpaid engineering fees.

The main issue in the lawsuit concerned which party was liable for the leaks and cracks in the line. The contractor claimed that appellant was liable because it would not approve the use of special section 5, a procedure sometimes used in building underground lines when the soil is perenially wet. (Special Section 5 is a construction method whereby the pipe is encased and reinforced by timber and then compacted with shale and other materials.)

In answer to special issues, the jury found, among other things, that: (1) the conduct of appellant was the sole cause of the failure of the trunk sewer to be in operating condition, (2) the value of the repair work and materials furnished by Whitelak, Inc., was $176,970.69, (3) the total sum of $236,245.13 would reasonably compensate appellees for the damages which they have suffered and will suffer in the future as a result of the failure of the trunk sewer to be in operating condition, and (4) appellant did not perform the engineering services covered by certain invoices.

In answering certain of the above issues, the jury impliedly found that Whitelak, Inc., substantially performed, or was prevented from substantially performing, the contract in accordance with the plans and specifications contained in the contract.

In twenty-four points of error, appellant claims that the judgment should be reversed because: (1) the contractor failed to complete construction, (2) there was no evidence to support the jury's findings that the conduct of appellant was the sole cause of the failure of the trunk line to be in operating condition, (3) the damages, interest and attorneys fees awarded against it were erroneous as a matter of law, (4) the evidence showed that it was entitled to recover against appellees for its engineering services furnished as a matter of law, and (5) the trial court erroneously excluded certain evidence and erroneously admitted certain evidence.

Before beginning a discussion of the points of error, we must point out that many of the points of error raised by the parties complain that "the trial court erred in entering judgment ...." In some instances the parties intended to raise "no evidence" points, but in others "insufficiency points" were attempted to be raised. A point of error which states that the trial court erred in rendering judgment on a verdict because of the state of the evidence, if it is adequate for any purpose, is only a "no evidence" point. Chemical Cleaning, Inc. v. Chemical Cleaning and Equipment Service, Inc., 462 S.W.2d 276 (Tex.1970). In reviewing those points of error in which appellant or cross-appellant urges error by the trial court in entering judgment, we will call the point a "no evidence" point and will consider only that evidence which tends to support the finding. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

First, appellant contends that the trial court erred in entering judgment because the contractor failed to complete construction.

There are two facts about which there is little or no dispute. The first is that the construction of the line was completed by the contractor and the second is that the line was never in operating condition for any appreciable length of time. It is appellant's contention that it was the obligation of the contractor to deliver the line in operating condition regardless of any deficiency in the plans and specifications, or of the conduct of the other parties to the suit. To support this proposition appellant relies on the case of Lonergan v. San Antonio Loan and Trust Co., 101 Tex. 63, 104 S.W. 1061 (1907). That case held that a contractor is not excused from the full and complete performance of a building contract even if the specifications are defective. The theory underlying the holding is that the contractor is in as good a position as the owner to know whether the plans and specifications are sufficient for the intended purpose and, if he agrees to build the improvement according to the plans at a fixed price, he must do so. In that case the building fell before it was completed because of the negligent plans furnished by an architect who was not a party to the suit. The court held that as between the owner and contractor, the contractor should bear the loss. In a case similar to ours, this court held that a contractor was entitled to recover his additional expense incurred for repairs when the breaks in an underground sewer occurred because the owner's inspector negligently directed the contractor to use an insufficient amount of shell at points in the line where the breaks occurred. City of Houston v. L. J. Fuller, Inc., 311 S.W.2d 285 (Tex.Civ.App.-Houston (1st Dist.) 1958, no writ). The court in the Fuller case distinguished that case from Lonergan, supra, but we will not attempt to do so in our case, because it is extremely doubtful whether Lonergan is applicable to our case. In fact, our courts have recognized that a cause of action exists in favor of a contractor against an owner or architect who furnishes defective plans and specifications. Board of Regents of the University of Texas v. S&G Construction Co., 529 S.W.2d 90 (Tex.Civ.App.-Austin 1975, writ ref'd n.r.e.) (where the court held that the failure to provide the builder with correct plans and specifications "... as were necessary to carry out the work was a breach of contract entitling the builder to recover its additional costs"), and Newell v. Mosley, 469 S.W.2d 481 (Tex.Civ.App.-Tyler 1971, writ ref'd n.r.e.) (where the court held that the plaintiff who engaged a contractor to build a house on a lot according to plans prepared by the plaintiff's architect impliedly warranted that the plans and specifications were sufficient for the purpose in view). Mr. Charles Whitehead, the contractor's president, testified that he requested permission from appellant to use special section 5, which was a more expensive method than the one being used to lay the pipe, but that permission was refused. Also, Mr. Wendell Beard, an engineer who was called to testify as an expert for both the contractor and appellees, testified that special section 5 should have been used and that the failure to do so was the cause of the breaks and cracks in the line. Some of appellant's witnesses gave similar testimony. This testimony is legally sufficient to support the finding of the jury that the conduct of appellant was the sole cause of the failure of the line to operate.

We will next consider appellant's six points of error pertaining to the trial court's improperly admitting and improperly excluding certain evidence during trial.

First, appellant claims that the trial court erred in excluding appellant's offer of testimony to impeach Wendell Beard by showing bias and motive for testifying against appellant.

On a bill of exception, appellant elicited from Wendell Beard, an expert witness for both the contractor and appellees, that he was a partner in an engineering firm which was a predecessor to the firm of Turner, Collie & Braden; that he had taken money from the surplus account with permission of one of the members of the predecessor firm; that the withdrawals were made for the purpose of paying for a residence he was building; that although Mr. Turner, a named member of the new firm of Turner, Collie & Braden, knew of and consented to the withdrawal, he used this as a reason for the termination of Mr. Beard as a partner in the predecessor firm, but it was other controversies between Mr. Turner and him which caused the termination; that he was terminated in 1955; that the only living survivor of the transaction was a man in Ft. Worth approaching 80 years of age; that the overdraws were paid back; that he had no resentment as a result of the situation and considers many ex-employees now at Turner, Collie & Braden as his friends.

Generally, a party has the...