Dudley Construction, LTD., Richard Mark Dudley, and Hartford Fire Insurance Company v. ACT Pipe & Supply, Inc.
06-15-00045-CV
| Tex. App. | Dec 28, 2015Background
- ACT Pipe & Supply sued Dudley Construction, Richard Mark Dudley, Hartford Fire, and related entities for sworn-account claims, payment-bond claims, Prompt Pay Act, misapplication of trust funds, fraud, and alter-ego theories; Dudley Construction filed counterclaims for breach and fraud.
- Trial was held; the court directed verdicts in favor of several Dudley-related defendants on many of ACT’s claims and refused to submit some claims (including certain fraud and alter-ego theories) to the jury.
- The jury found ACT entitled to some recovery: a sworn-account award of $14,214.20 (Reclaimed Water Project) and bond claims of $14,214.20 and $110,629.70 (Reclaimed Water and Tabor Road projects), but it answered that ACT’s Tabor Road prices were not in accordance with the parties’ agreement and awarded $0 for trust-fund damages.
- The trial court granted ACT’s motion to disregard certain jury answers and entered JNOV on some issues, substituting findings (including that Tabor prices were in accordance with the agreement and that trust‑fund damages were $14,214.20 and $110,629.70), and awarded ACT a final judgment of $124,483.90 plus attorney’s fees of $131,823.99.
- Appellants appeal, arguing (inter alia) that the court erred in granting JNOV, in finding the payment‑bond notices sufficient (and thus perfecting bond claims), in awarding attorney’s fees (statutory and contract grounds), and in failing to file requested findings of fact and conclusions of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. JNOV on sworn-account (Tabor Road) | ACT: prices charged were contract‑compliant so judgment notwithstanding verdict was proper | Dudley: jury correctly found prices did not conform to the signed Purchase Order; JNOV improperly substituted court judgment for jury | Trial court granted JNOV for ACT (court substituted jury’s “No” on price conformity with “Yes”) |
| 2. JNOV on misapplication of trust funds | ACT: trust‑fund misapplication proved and damages established | Dudley: jury’s zero damages finding was supported; court improperly found damages conclusively proven and substituted its own damage calculation | Trial court granted JNOV and fixed trust‑fund damages for both projects |
| 3. Perfection of payment‑bond claims | ACT: sent required notices and sworn statements, thereby perfecting bond claims vs. contractor and surety | Dudley: notices were defective or misaddressed (many to the wrong entity) and one relevant notice lacked a sworn statement; bond claims not perfected | Jury found claims perfected; trial court accepted and entered judgment for ACT on bond claims (Appellants contest sufficiency) |
| 4. Award of attorney’s fees | ACT: entitled to fees (statute, bond statute, or contract) | Dudley: statutory prerequisites unmet (38.001/38.002), Dudley is a limited partnership (not an individual/corporation under §38.001), no contract authorizes fees, bond statute applies only to sureties, and fees were unsegregated/unreasonable | Trial court awarded $131,823.99 in fees to ACT; appellants argue award was erroneous and unsupported |
Key Cases Cited
- Jones v. Ben Maines Air Conditioning, Inc., 621 S.W.2d 437 (Tex. Civ. App.–Texarkana 1981) (elements of common‑law sworn‑account claim)
- Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392 (Tex. 1991) (standards governing JNOV/judgment n.o.v.)
- Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828 (Tex. 2009) (no‑evidence review standard described)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (evidentiary sufficiency standards and jury‑charge review principles)
- Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812 (Tex. 1997) (factors for assessing reasonable and necessary attorney’s fees)
- Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006) (segregation of attorney’s fees between recoverable and nonrecoverable claims)
- Formosa Plastics Corp. USA v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41 (Tex. 1998) (fraud/misrepresentation principles)
- Graham Central Station, Inc. v. Pena, 442 S.W.3d 261 (Tex. 2014) (no‑evidence review framework)