Wright Way Const. Co., Inc. v. Harlingen Mall Co.

• Decision Date: 18 October 1990
• Docket Number: No. 13-89-312-CV,13-89-312-CV
• Parties: WRIGHT WAY CONSTRUCTION COMPANY, INC. and Atlantic Insurance Company, Appellants, v. HARLINGEN MALL COMPANY, a Texas Limited Partnership, Appellee.
• Court: Texas Court of Appeals

Page 415

799 S.W.2d 415

WRIGHT WAY CONSTRUCTION COMPANY, INC. and Atlantic Insurance Company, Appellants, v. HARLINGEN MALL COMPANY, a Texas Limited Partnership, Appellee.

No. 13-89-312-CV.

Court of Appeals of Texas Corpus Christi.

Oct. 18, 1990 Appellants' Rehearing Granted Oct. 18, 1990 Appellee's Rehearing Overruled Oct. 18, 1990 Second Motion for Rehearing Overruled Nov. 15, 1990.

Roger W. Hughes, Adams & Graham, Harlingen, Charles C. Murray, Atlas & Hall, McAllen, Tom Lockhart, Adams, Graham, Jenkins, Graham & Hamby, Harlingen, for appellants.

Robert C. Sheline, Gibbon, Gibbon & Sheline, Harlingen, Russell H. McMains, McMains & Constant, Corpus Christi, Charles A. Carlson, III, Harlingen, Kimberly Hall Seger, McMains & Constant, Corpus Christi, for appellee.

Before KEYS, KENNEDY, and SEERDEN, JJ.

OPINION

KEYS, Justice.

Our former opinion is withdrawn in favor of the following.

I.

Appellee, Harlingen Mall Company, filed suit against Wright Way Construction Company, and Atlantic Insurance Company, Inc., ¹ appellants, for breach of contract and breach of warranty. The Mall also sued Atlantic for breach of the duty of good faith and fair dealing. The basis for the contract and warranty claims was Wright Way's use of improper paving methods. This allegedly caused premature ravelling ² in Valle Vista Mall's parking lot. The jury found Wright Way breached the contract and failed to find Atlantic breached the duty of good faith and fair dealing. The trial court entered judgment jointly and severally against Wright Way and Atlantic for damages and against Wright Way for Attorneys' fees.

By eleven points of error appellants Atlantic and Wright Way argue that the trial court erred. The Mall brings one cross point. Due to the failure of the trial court to instruct the jury on the defense of estoppel, we reverse and remand for a new trial. Portions of the judgment are not appealed and therefore final.

In addition to the Mall and Wright Way, the other participants in this dispute were Robert Wright, Melvin Simon & Associates (Melvin Simon), Lockwood, Andrews, & Newnam, Inc. (LAN), and Raba-Kistner. Robert Wright owned Wright Way. Melvin Simon was the Mall's developer. LAN was the engineering firm hired by the Mall. Raba-Kistner was an independent geo-technical engineering firm employed by the Mall. Raba-Kistner played a disputed role in this litigation.

The uncontroverted facts indicate that the Mall employed Raba-Kistner to do field testing, quality control, and other engineering work. Testimony and a letter indicate that Raba-Kistner was to create the crucial batch design ³ and conduct quality control. According to the Mall, Wright Way's failure to do a batch design and conduct quality control were the cause of the abnormal ravelling. According to Wright Way, this contractual requirement was either waived, or the Mall was estopped to enforce it because they agreed that Raba-Kistner was to perform these functions.

On March 9, 1982, the Mall and Wright Way signed a contract requiring Wright Way to pave the parking lot and perform other work involved in the construction of the Valle Vista Mall. The contract called for a parking lot with a compacted sub-grade injected with lime slurry, a cement stabilized caliche base, and a Class A Type D hot mix asphaltic concrete surface one and one half inches thick. The contract required appellant to employ a "reputable commercial laboratory" to develop a batch design and for quality control. Additionally, the contract required the work to be performed in a good and workmanlike manner. The contract included two warranties. The original warranty covered defects in materials and workmanship occurring within one year from date of acceptance, as well as latent defects. The second warranty covered defects occurring until April 1, 1984.

In May 1982, Wright Way began laying down the asphaltic concrete surface. Almost immediately, differences of opinion arose concerning the proper paving procedures. Specifically, LAN complained that the asphalt was being rolled after it had cooled and joints were not cut. In some instances, it was rolled the day after it was laid. Nevertheless, the work was accepted during June and most of July.

An additional dispute arose concerning batch design and quality control. The Mall requested a batch design prior to the lay down of the asphalt, but Wright Way did not provide one. Robert Wright testified that he was going to hire Shilstone, a local lab. He did not hire Shilstone, however, because he was told Raba-Kistner would do the batch design. On June 18, 1982, Melvin Simon & Associates wrote a letter to Robert Wright indicating an agreement existed under which Raba-Kistner would conduct the batch design and quality control. On July 16, 1982, the Mall withheld a $90,000.00 payment to Wright Way because of dissatisfaction with Wright Way's procedures. This dispute was resolved when Wright Way offered the second warranty. The job was completed and accepted by the Mall. It opened in July 1983.

Around January 1984, the pavement began ravelling and some potholes appeared. Wright Way made an effort to repair these problems but they continued to get worse. The Mall attempted to get Wright Way to fix the problem areas pursuant to the warranty but was not satisfied with Wright Way's efforts to fix the ravelling. Immediately prior to the warranty's expiration on April 1, 1984, a series of letters were sent to Wright Way seeking pavement repairs. At that time about 10% of the pavement was ravelling. On March 23, 1984, the Mall sent another letter to Wright Way and Atlantic requesting repairs under the warranty. Wright Way did not respond. After April 1, the warranty deadline, the Mall again sent a letter to Wright Way and the bonding company requesting repairs and stating that if repairs were not made the Mall would consider Wright Way in breach of the contract.

In October 1984, Robert Wright and an engineer from Melvin Simon met at the Mall and discussed the ravelling. Robert Wright told the engineer that he would repair the parking lot by applying a surface coating to those areas that were ravelling.

Problems with the pavement and Wright Way continued. By spring of 1985, the entire parking lot was ravelling and Wright Way had not repaired it as promised. On April 15, 1985, Melvin Simon sent a letter to Robert Wright and Atlantic indicating that the entire parking lot needed repair due to ravelling. The basis for the requested repairs was the latent defects provision of the warranty. At roughly the same time, early April, Raba-Kistner inspected and surveyed the parking lot. The survey divided the parking lot into three color coded zones in need of different types of repairs. Wright Way promised to repair the red zone for no charge under the warranty. The Mall accepted bids on the two other areas. Although Wright Way had not placed a bid, the Mall requested a bid on the other areas from Wright Way. Wright Way later bid on the work but did not get the job. Subsequently, the Mall paid a different paving contractor to apply a seal coat to the entire parking lot, including the areas Wright Way promised to repair. On June 4, 1986, the Mall demanded that Wright Way pay $211,387.50 for this work, and over $6,000.00 for attorney's fees.

On August 5, 1986, this suit was filed. The Mall's theory of the case was that Wright Way's failure to do a batch design caused the ravelling because the batch design was needed to monitor the percentage of air in the asphalt, a critical design parameter. This design parameter was not monitored by Raba-Kistner during paving. The problem was compounded, according to the Mall, by improper compaction methods. Wright Way's defense was that the Mall waived or was estopped from complaining of the failure to conduct a batch design or any other defect in the construction.

The trial court refused the instructions offered by Wright Way on waiver and estoppel and submitted a broad form question. After the jury reached a verdict, the court entered judgment against Wright Way and Atlantic for $350,000.00, and awarded $157,721.00 for attorneys fees and costs against Wright Way, but not Atlantic. The jury found no breach of the duty of good faith and fair dealing by Atlantic.

II.

Wright Way and Atlantic, by their first point of error, bring into focus the principal question presented in this appeal: whether the question submitted to the jury, unaided by the refused instructions, encompassed estoppel, appellant's controlling defensive issue. We hold that it did not. First we must determine if the error was preserved.

A.

In order to preserve charge error appellant must comply with Tex.Rules Civ.P. 271-279. If the error is the omission of an instruction relied on by the requesting party three steps are required by the Rules to preserve error: a proper instruction must be tendered in writing and requested prior to submission; a specific objection must be made to the omission of the instruction; and the court must make a ruling.

As a preliminary matter, on motion for rehearing the question has been raised by both parties whether both an objection and a request for submission is required to preserve error where a party complains of the omission of its instruction in the court's charge. Some confusion exists in this area. See e.g. Dorsaneo and McMains, The Submission of the Case to the Jury: Back to the Past, 60-61, Advanced Appellate Practice Course (October 1990) (objection and request are not required to preserve charge error). This court has repeatedly held that an objection and a proper request are required to preserve charge error if the trial court omits a question, definition or instruction relied on by the requesting party. National Fire Ins. v. Valero Energy Corp., 777 S.W.2d 501, 508 (Tex.App.--Corpus Christi 1989, writ denied); Texas Cookie Co. v. Hendricks & Peralta, Inc., 747 S.W.2d 873, 878 (Tex.App.--Corpus Christi 19...