Abdul Khan v. the Chai Road, Inc., D/B/A Waterjet Works
05-16-00346-CV
| Tex. App. | Jul 17, 2017Background
- Khan contracted WaterJet to adapt and cut a stone foyer medallion design; agreed price was $25,000 (paid) plus materials (WaterJet cost + 20%) and a potential $6,000 extra for a larger design.
- WaterJet prepared designs; Khan approved a revised design in mid‑June and requested minor changes; WaterJet ordered materials and invoiced Khan $11,891.57 on June 27, 2014, stating payment due on receipt and required before shipping.
- Khan did not pay the materials invoice; WaterJet proceeded with cutting and informed Khan final drawings would be available once the invoice was paid; Khan refused to pay after receipt of the invoice.
- Khan sued WaterJet for breach and sought refund of $25,000; WaterJet counterclaimed for the $6,000 design fee and $11,891.57 for materials.
- A jury found a contract existed, Khan materially breached, WaterJet did not breach, and awarded WaterJet $17,891.57; trial court entered judgment for WaterJet and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a mistrial was required after witness referenced Khan’s religion | The offhand reference to not wanting cherubs/angels revealed Khan’s Muslim faith and caused incurable prejudice requiring mistrial | The comment was isolated, promptly sustained as irrelevant, never repeated, and did not imply untrustworthiness | No abuse of discretion; single, brief, sustained comment did not cause incurable harm |
| Whether jury instruction used incorrect measure of damages (did not deduct costs saved by WaterJet) | Jury should have been instructed to subtract costs WaterJet avoided by not performing; no evidence of avoided costs was produced | Charge was not objected to; damages must be measured by the charge given; evidence supported amounts the jury was instructed to find | Error not preserved; on the charge given, evidence legally sufficient to support $17,891.57 award |
| Whether WaterJet performed or tendered performance under the contract | Khan contends WaterJet failed to deliver final plans/materials and thus did not tender performance | WaterJet produced drawings, ordered materials, invoiced Khan with agreed payment terms, and made final drawings available upon payment — refusal to pay put Khan in default | Some evidence supports WaterJet’s tender; jury finding that Khan materially breached is supported |
| Overall sufficiency of evidence to support breach and damages | Khan argues insufficiency on performance and measure of damages | WaterJet points to agreement terms, invoices, design approvals, unpaid amounts, and jury instruction | Evidence sufficient under the charge; judgment affirmed |
Key Cases Cited
- Phillips v. Bramlett, 288 S.W.3d 876 (Tex. 2009) (standard for incurable jury argument)
- Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678 (Tex. 2008) (examples and analysis of incurable argument)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (legal‑sufficiency review standard)
- Qaddura v. Indo‑European Foods, Inc., 141 S.W.3d 882 (Tex. App.—Dallas 2004) (benefit‑of‑the‑bargain damages for contract breach)
- Equistar Chemicals, L.P. v. Dresser‑Rand Co., 240 S.W.3d 864 (Tex. 2007) (preservation of charge errors and duty to object/request instructions)
- Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195 (Tex. 2004) (material breach excuses other party’s performance)
- Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835 (Tex. 1979) (factors for assessing prejudice from improper argument)