Zorrilla v. Aypco Constr. Ii, LLC

• Citation: 421 S.W.3d 54
• Decision Date: 13 December 2013
• Docket Number: No. 13–12–00359–CV.,13–12–00359–CV.
• Parties: Mirta ZORRILLA, Appellant, v. AYPCO CONSTRUCTION II, LLC and Jose Luis Munoz, Appellees.
• Court: Texas Court of Appeals

421 S.W.3d 54

Mirta ZORRILLA, Appellant,

v.AYPCO CONSTRUCTION II, LLC and Jose Luis Munoz, Appellees.

No. 13–12–00359–CV.

Court of Appeals of Texas, Corpus Christi–Edinburg.

Oct. 3, 2013.

Rehearing and En Banc Reconsideration Overruled Dec. 13, 2013.

Brandy M. Wingate, McAllen, Maitreya Tomlinson, Austin, for Appellant.

J.W. Dyer, Dyer & Associates, McAllen, for Appellees.

Before Justices RODRIGUEZ, GARZA, and PERKES.

OPINION

Opinion by Justice RODRIGUEZ.

This is an appeal from a jury's verdict in favor of appellees AYPCO Construction II, LLC and Jorge Luis Munoz (collectively, AYPCO) on their breach of contract and fraud claims against appellant Mirta Zorrilla. By seven issues, Zorrilla challenges: the sufficiency of the evidence supporting the jury's breach of contract and fraud findings; the trial court's refusal to submit a prior material breach jury instruction requested by Zorrilla; the prejudgment interest awarded in the judgment; the foreclosure of two mechanic's liens in favor of AYPCO; the awarding of both attorney's fees and exemplary damages, which Zorrilla contends is a double recovery in light of AYPCO's fraud election; and the amount of exemplary damages. We affirm as modified.

I. Background

Zorrilla contracted with AYPCO to complete construction of her home at 15555 N. 23rd Street in Edinburg, Texas.¹ The contract contained a clause that required any changes to the original plans to be in writing and agreed to by both parties.

AYPCO began work in December 2006. AYPCO billed Zorrilla through weekly invoice-type documents it titled “weekly advances,” which would list the expenses incurred by AYPCO during that week. Zorrilla paid the invoices through the end of April 2007. Substantial additional work that was not explicitly included in the original contract was done on the N. 23rd Street home (the construction of a large guest house and structure connecting the guest house to the main house) and on another home owned by Zorrilla at 3518 Plaza del Lago (repairs to the sprinkler system and painting and other work to remediate water damage). The parties dispute the extent to which Zorrilla approved this additional work and whether it was authorized under the contract. Zorrilla contends that she never authorized the construction of a guest house at the N. 23rd Street property, which was the bulk of the additional work not covered by the contract; that she repeatedly requested that AYPCO cease work when she realized that the additional work was being performed; and that the “weekly advances” given to her by AYPCO were confusing, vague, and did not give her the written notice required under the contract. AYPCO contends that Zorrilla requested all of the additional work that was performed; that AYPCO detailed all of the additional work in the “weekly advances”; and that Zorrilla was repeatedly late in making payments on the weekly invoices and then completely ceased making payments in May 2007.

After Zorrilla refused to make further payments, AYPCO sued Zorrilla for breach of contract and fraud.² The breach of contract and fraud actions were based on Zorrilla's alleged failure to pay the costs for the work done in May 2007 at N. 23rd Street and Plaza del Lago. AYPCO also sought foreclosure of mechanics' liens it had attached to those properties. The case was tried to a jury.

At the charge conference, Zorrilla asked for a jury question on prior material breach by AYPCO for its failure to execute written change orders before performing the additional work. The trial court denied Zorrilla's request. The jury then found that Zorrilla breached her contract with AYPCO and awarded $54,264.15 in damages for the N. 23rd Street project and $2,390 in damages for the Plaza del Lago project. The jury awarded $150,000 in attorney's fees based on the contract action. The jury also found that Zorrilla committed fraud and awarded the same damages for fraud as it awarded for the contract verdict, a total of $56,654.15. In connection with the fraud verdict, the jury additionally awarded $250,000 in exemplary damages.

In its motion for entry of judgment, AYPCO elected to recover under its fraud claim.³ In its judgment, the trial court awarded $56,654.15 in actual damages, $45,877.48 in pre-judgment interest, $250,000 in exemplary damages, and $150,000 in attorney's fees. The trial court also ordered that both properties be foreclosed and sold to satisfy the judgment. Zorrilla filed a motion for new trial, arguing that the trial court erred in failing to require AYPCO to elect remedies, that the evidence was insufficient to support the verdict, that the exemplary damages should be reduced in accordance with the statutory cap, that the liens were invalid, and that the trial court used an incorrect pre-judgment interest calculation. The motion was overruled by operation of law, seeTex.R. Civ. P. 329b(c), and this appeal followed.

II. Evidence of Fraud

Because AYPCO elected to recover on the jury's fraud verdict, we first address Zorrilla's fifth issue, in which she argues that the evidence was legally and factually insufficient to support the jury's finding that she committed fraud. SeeTex.R.App. P. 47.1. Specifically, Zorrilla argues that the evidence was insufficient to prove she never intended to perform her part of the contract as promised.

A. Standard of Review

We will sustain a legal-sufficiency or no-evidence challenge if the record shows: (1) the complete absence of evidence of a vital fact; (2) the court is barred by the rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005). When reviewing a no-evidence challenge, we view the evidence in the light most favorable to the finding, crediting favorable evidence if a reasonable fact-finder could and disregarding contrary evidence unless a reasonable fact-finder could not. Id. at 807. The ultimate test for legal sufficiency is whether the evidence would enable reasonable and fair-minded people to make the finding under review. Id. at 827. In reviewing a no-evidence issue, the court indulges every reasonable inference in support of that finding. Id. at 822.

“Jurors are the sole judges of the credibility of the witnesses and the weight to give their testimony. They may choose to believe one witness and disbelieve another. Reviewing courts cannot impose their own opinions to the contrary.” Id. at 819. “Most credibility questions are implicit rather than explicit in a jury's verdict.” Id. Therefore, reviewing courts must assume that the jurors decided all credibility questions in favor of the verdict if reasonable persons could do so. Id. “Courts reviewing all the evidence in a light favorable to the verdict thus assume that jurors credited testimony favorable to the verdict and disbelieved testimony contrary to it.” Id.

In reviewing a factual-sufficiency challenge to a jury finding on an issue on which the appellant did not have the burden of proof, as is the case here, we consider and weigh all of the evidence and set aside the verdict only if the evidence that supports the jury finding is so weak as to make the verdict clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam); Ins. Network of Tex. v. Kloesel, 266 S.W.3d 456, 469–70 (Tex.App.-Corpus Christi 2008, pet. denied). In our factual-sufficiency review, we consider and weigh all the evidence, but like in our legal-sufficiency review, we defer to the jury as the sole judge of the witnesses' credibility. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001); see Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003). The jury may choose to believe one witness over another, and a reviewing court may not impose its own opinion to the contrary. Golden Eagle Archery, 116 S.W.3d at 761.

B. Applicable Law

In the context of a civil jury trial, the sufficiency of the evidence is reviewed in light of the charge submitted if no objection is made to the charge. Romero v. KPH Consolidation, Inc., 166 S.W.3d 212, 221 (Tex.2005); Wal–Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 715 (Tex.2001). Here, Zorrilla made no objections to the fraud question, so we will review the evidence in light of the law included in the charge submitted to the jury in this case. The fraud question in this case provided as follows:

Did MIRTA ZORRILLA commit fraud against AYPCO CONSTRUCTION II, LLC?

Fraud occurs when:

a. a party makes a material misrepresentation, and

b. the misrepresentation is made with knowledge of its falsity or made recklessly without any knowledge of the truth and as a positive assertion, and

c. the misrepresentation is made with the intention that it should be acted on by the other party, and

d. the other party relies on the misrepresentation and thereby suffers injury.

“Misrepresentation” means:

A false statement of fact, or

A promise of future performance made with an intent, at the time the promise was made, not to perform as promised.

Zorrilla's fifth issue focuses on whether there was sufficient evidence of the requisite fraudulent intent—i.e., under the law in the charge here, whether there was evidence that, at the time Zorrilla made her promise under the contract, she did not intend to perform.

“A promise of future performance constitutes an actionable misrepresentation if the promise was made with no intention of performing at the time it was made.” [Formosa Plastics Corp. v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998) ]. “Proving that a party had no intention of performing at the time a contract was made is not easy, as intent to defraud is not usually susceptible to direct proof.” Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 305 (Tex.2006) (citing Spoljaric v. Percival Tours,...