Uhlir v. Golden Triangle Development Corp.

• Decision Date: 23 December 1988
• Docket Number: No. 2-88-081-CV,2-88-081-CV
• Citation: Uhlir v. Golden Triangle Development Corp., 763 S.W.2d 512 (Tex. App. 1988)
• Parties: G. Ann UHLIR, Appellant, v. GOLDEN TRIANGLE DEVELOPMENT CORPORATION, Appellee.
• Court: Texas Court of Appeals

Page 512

763 S.W.2d 512

G. Ann UHLIR, Appellant, v.GOLDEN TRIANGLE DEVELOPMENT CORPORATION, Appellee.

No. 2-88-081-CV.

Court of Appeals of Texas Fort Worth.

Dec. 23, 1988.

Rehearing Denied Feb. 8, 1989.

Royce Coleman, Denton, for appellant.

Richard H. Kelsey, P.C., Denton, for appellee.

Before FENDER, C.J., and BURDOCK and FARRIS, JJ.

OPINION

FENDER, Chief Justice.

This case involves a construction contract.Appellant, G. Ann Uhlir, hired appellee, Golden Triangle Development Corporation(Golden Triangle), to build a house for her.Uhlir made progress payments to Golden Triangle but withheld the final payment of $6,500.00 as she maintained the house had not been finished.Golden Triangle sued claiming it had fully performed, and performed extras, entitling it to payment.The trial court, after findings of fact by the jury, entered judgment for Golden Triangle in the amount of $24,395.01.Uhlir raises six points of error on appeal and asks that Golden Triangle take nothing and that she be awarded attorney's fees.

We affirm.

Uhlir's first three points of error are similar and will be discussed together.Uhlir alleges that the jury's findings preclude any theory of recovery by Golden Triangle.In point of error number one, Uhlir alleges that the finding of the jury in special issue number three meant that Golden Triangle could not recover on a theory of substantial performance.In points of error numbers two and three, Uhlir alleges that Golden Triangle could not recover under the contract as there were jury findings that Golden Triangle had failed to fully perform and obtain an architect's certificate of completion.Uhlir argues that such conditions were precedent to any final payment.

The following special issues were submitted to the jury:

SPECIAL ISSUENO. 1:

Do you find from a preponderance of the evidence that GOLDEN TRIANGLE DEVELOPMENT CORPORATION fully and completely performed all of the work on G. ANN. UHLIR's house, which it agreed to do, in Plaintiff's Exhibit 1.

ANSWER: "We do." or "We do not."

ANSWER: WE DO NOT

If you have answered the above and foregoing Special IssueNo. 1, "we do not" and only in that event, answer the following Special IssueNo. 2.

SPECIAL ISSUENO. 2:

Do you find from a preponderance of the evidence that GOLDEN TRIANGLE DEVELOPMENT CORPORATION substantially completed its contract with the Defendant, G. ANN UHLIR, such contract being admitted in evidence as Plaintiff's Exhibit 1.

INSTRUCTION:

The term, "substantial completion," as used in this charge, means that the improvements contemplated in the construction agreement must be so completed that the premises is capable of being utilized for its intended purposes as a home even though there may be incompleted aspects of the construction.The term, "substantial completion," contemplates a degree of completeness such that a reasonable person would be willing and able to make their home in the building.The term does not require that every aspect of the construction contract be fully completed.

ANSWER: "We do." or "We do not."

ANSWER: WE DO

If you have answered Special IssueNo. 2"We do" and only in that event, answer the following Special IssueNo. 3.

SPECIAL ISSUENO. 3:

Do you find from a preponderance of the evidence that GOLDEN TRIANGLE DEVELOPMENT CORPORATION would have completed all of its work on the G. ANN UHLIR house, which it was required to do under the terms of the construction agreement in evidence as Plaintiff's Exhibit 1 if G. ANN UHLIR had paid to GOLDEN TRIANGLE DEVELOPMENT CORPORATION the money, if any, which she owed for the construction.

ANSWER: "We do." or "We do not."

ANSWER: WE DO

....

SPECIAL ISSUENO. 12:

Do you find from a preponderance of the evidence that a final certificate for payment has been issued by the architect pursuant to the agreement introduced into evidence as Plaintiff's ExhibitNo. 1?

ANSWER: "We do" or "We do not".

ANSWER: WE DO NOT

The doctrine of substantial performance allows a contractor to recover on the contract the full performance price, less the cost of remedying those defects that can be fixed.Vance v. My Apartment Steak House, Inc., 677 S.W.2d 480, 481(Tex.1984).Substantial performance means there was no willful departure from the terms of the contract and no omission of essential points of the project.Uvalde Rock Asphalt Co. v. Fantham, 210 S.W.2d 646, 650(Tex.Civ.App.--Galveston 1948, no writ).A pleading of full performance of the contract will support submission of an issue to the jury on substantial performance.Shaddock v. Storm King Window Co., 696 S.W.2d 271, 273(Tex.App.--Fort Worth1985, writ ref'd n.r.e.).

The contract provided in part as follows:

FINAL PAYMENT

Final payment, constituting the entire unpaid balance of the Contract Sum, shall be paid by the Owner to the Contractor when the Work has been completed, the Contract fully performed, and a final Certificate for Payment has been issued by the Architect.

We find, based on the jury's answers, that Golden Triangle was entitled to recover on the theory of substantial performance.This allows Golden Triangle to recover on the contract amount less the cost of remedying defects that the jury has found.Vance, 677 S.W.2d at 481.We find this doctrine to be applicable even though the contract expressly stated that final payment should be contingent on full completion and the issuance of an architect's certificate.

A finding that a contract has been substantially completed is the legal equivalent of full compliance, less any offsets for remediable defects.Del Monte Corp. v. Martin, 574 S.W.2d 597, 599(Tex.Civ.App.--San Antonio 1978, no writ).The effect of the jury's finding on special issues numbers one and two is to allow Uhlir to offset the cost of remedying defects against the balance owed.Likewise, the failure of Golden Triangle to obtain the issuance of an architect's certificate (special issue number twelve) will not preclude recovery on a theory of substantial performance.We find in this case that the issuance of the architect's certificate was merely another method of assuring final completion.The jury's answer in special issue number two replaces the need for full completion (special issue number one) and the issuance of an architect's certificate (special issue number twelve) and allows Golden Triangle to take under the contract, less any defects.

We do not find that the jury's answer in special issue number three conflicts in any way with (or even affects) the answer in special issue number two.We do not read, as claimed by Uhlir, special issue number three as to find that Golden Triangle acted in bad faith so as to be precluded from recovering under the equitable theory of substantial performance.The answer merely provides that Golden Triangle stood ready to perform if Uhlir had paid it.We believe this goes to the theory of full performance, which the judgment does not rely on.Uhlir's first three points of error are overruled.

In point of error number four, Uhlir complains that the trial court erred in awarding Golden Triangle $2,258.01 in extras as there was insufficient evidence, or no evidence, to support a finding that these charges were agreed to in writing.The contract contained the following clause:

ARTICLE 2

THE WORK

The Contractor shall perform all the Work required by the Contract Documents for ...

Construction and completion of the home at said address in conformance with plans and specifications attached.Any changes to said plans and specifications after the effective date of this contract shall be in writing with charges determined prior to making changes.

The following special issues were submitted to the jury:

SPECIAL ISSUENO.: 4

Find from a preponderance of the evidence the amount of money, if any, owed by G. ANN UHLIR to GOLDEN TRIANGLE DEVELOPMENT CORPORATION for exceeding allowances, if any, extra work, if any, and changes, if any, requested by and beneficial to G. ANN UHLIR in connection with the house at 1901 Highland Park Circle.

INSTRUCTION:

In answering this question, you must include the reasonable value, if any, or any extra work, if any, and changes, if any requested by G. ANN UHLIR and completed by GOLDEN TRIANGLE DEVELOPMENT CORPORATION, even if the extra work or changes were not specifically included in the written contract and any allowance overruns.Do not, however, include any interest in answering this question.Do not include in your calculations any offset or damages which you may find in this charge to be owing by GOLDEN TRIANGLE DEVELOPMENT CORPORATION to G. ANN UHLIR.This question inquires only about the debt, if any, owed by G. ANN UHLIR to GOLDEN TRIANGLE DEVELOPMENT CORPORATION.

ANSWER: In dollars or "none."

ANSWER: $2,258.01

....

SPECIAL ISSUENO. 10:

Do you find from a preponderance of the evidence that the change and the charge for the materials and/or labor were agreed upon in writing with charges determined prior to making changes?

ANSWER: In making your answer check (X)"Yes" or "No" as to each of the following categories:

                                       Yes          No
                                                       ----        ----
                 1.  Wallpaper                      (   X    )  (        )
                 2.  Carpet                         (        )  (        )
                 3.  Vinyl                          (        )  (        )
                 4.  Tile--
                     A. Master Bath                 (   X    )  (        )
                     B. Guest Bath                  (   X    )  (        )
                 5.  Light fixtures                 (   X    )  (        )
                 6.  Appliances                     (   X    )  (        )
                 7.  Window Stools                  (        )  (   X    )
                 8.  Green Paint--not used          (        )  (   X    )
                 9.  Dimmers & switch to wall plug  (        )  (        )
                10.  Light in bookcase              (        )  (   X    )
                11.  Exposed aggregate sidewalk     (        )  (   X    )
                12.  Crosstie and drainage work     (        )  (        )
                13.  Closet

...