CCC Group, Inc. v. South Central Cement, Ltd.
450 S.W.3d 191
Tex. App.2014Background
- South Central Cement hired River Consulting to design two 22,000-ton cement storage warehouses using a novel three-concentric-block retaining-wall system joined by epoxy and metal "shear plates."
- River recommended CCC Group as a contractor; River contracted with CCC, but South Central had no written contract with CCC. River left the project partway through construction.
- CCC encountered misalignment placing shear plates after ~700 blocks; CCC personnel claim they were told by South Central representatives to omit the plates and rely on epoxy; South Central disputes that it authorized omission.
- Warehouse A partially collapsed on April 27, 2007, during its first unloading; CCC performed cleanup and rebuilt walls to a reduced height and was paid about $928,000.
- South Central sued CCC and River for breach of contract and negligence; a jury found for South Central and awarded past and future repair damages, delay and reduced-capacity damages, and attorney's fees; the trial court entered judgment and CCC appealed.
- On appeal, the First Court of Appeals sustained CCC's challenge to the evidentiary support for future repair damages and reversed and remanded for a new trial on liability and damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of contract obligating CCC to install shear plates | South Central: CCC had an oral post-River agreement to manage and build per River's design, which included shear plates | CCC: No contractual obligation to install plates; South Central agreed during construction to omit plates | Held: Evidence (including CCC witnesses) supported that plates were part of the design and CCC had contractual obligation; jury could credit South Central's witnesses |
| Whether South Central agreed to omit shear plates (change in design) | South Central: No agreement to omit plates; CCC breached by failing to install them | CCC: South Central (Gonzalez) consented to omit plates | Held: Credibility dispute resolved for South Central; jury could disbelieve CCC's consent evidence |
| Causation — did omission of shear plates cause collapse? | South Central: Expert testimony (Holloway, Dreher) showed omission made wall far less resistant and caused collapse | CCC: Other testimony (Jaramillo, Arles) blamed River's defective design; Holloway's opinion was conclusory and not tied to facts | Held: Expert testimony of Holloway and Dreher was competent and tied to facts; evidence sufficient to support causation finding |
| Damages — future repair costs supported by evidence? | South Central: BEI estimates ($4M–$5.4M) supported by Arles' testimony | CCC: Arles was unqualified for costs, testimony conclusory and lacked foundation | Held: Arles's testimony was conclusory and unreliable and BEI estimates lacked foundation; no competent evidence for future repair damages — vacated and remanded for new trial on liability and damages |
Key Cases Cited
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (legal- and factual-sufficiency standards for appellate review)
- Cain v. Bain, 709 S.W.2d 175 (Tex. 1986) (factual-sufficiency standard)
- McGalliard v. Kuhlmann, 722 S.W.2d 694 (Tex. 1986) (factfinder may believe or disbelieve witnesses)
- Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227 (Tex. 2004) (preservation of expert-reliability complaints requires timely objection)
- E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995) (expert testimony must be relevant and rest on reliable foundation)
- Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998) (analytical gap doctrine for expert testimony)
- City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009) (expert testimony is conclusory if unsupported by factual basis)
- Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007) (remand versus rendition when appellate court sustains no-evidence challenge)