Pelco Construction Company v. Chambers County, Texas, Kurt Amundson, and Amundson Consulting, Inc.
01-14-00317-CV
Tex. App.Feb 12, 2015Background
- Pelco Construction Co. appeals a trial-court disposition in a contract dispute with Chambers County, arising from a public works project in Chambers County, Texas.
- The trial court granted Chambers County’s no-evidence and traditional motions for summary judgment on Pelco’s breach-of-contract and related claims.
- Pelco challenged whether Chambers County’s conduct (withholding retainage and incomplete payments) amounted to a material breach.
- Pelco terminated the contract after Chambers County allegedly breached first, and later sought damages and attorney’s fees.
- The jury awarded damages against Pelco, which the trial court later set aside in favor of a judgment notwithstanding the verdict, with Pelco seeking reversal and rendering or remand for damages.
- The issues center on whether Chambers County materially breached first, and whether the damages were properly found by the jury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Material breach priority | Pelco: Chambers County’s withholding retainage and incomplete payments breached first. | Chambers County: no material breach; any breach by Pelco was the cause of damages. | Chambers County materially breached first; Pelco discharged. |
| Independent support for summary judgment | Pelco contends the first summary judgment was improper for precluding its breach claims. | Chambers County argues second motion for summary judgment independently supports judgment. | First SJ error; second SJ cannot independently sustain judgment. |
| Damages evidence sufficiency | Pelco contends Chambers County’s damages were not conclusively established and jury could reject the model. | Chambers County argues the damages model was conclusive. | Jury not required to accept Chambers County’s damages; damages not conclusively established. |
| Remittitur/amount of damages | Pelco seeks rendering or remand for proper damages. | Chambers County requests no remittitur | Remittitur not appropriate; court should render or remand for damages as warranted. |
Key Cases Cited
- Gulf Liquids New River Project, LLC v. Gulsby Eng’g, Inc., 356 S.W.3d 54 (Tex.App.–Houston [1st Dist.] 2011) (material breach can discharge the other party from performance (no pet))
- New York Party Shuttle, LLC v. Bilello, 414 S.W.3d 206 (Tex.App.–Houston [1st Dist.] 2013) (failure to make full payment can be a material breach)
- Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195 (Tex. 2004) (material breach analysis and consequences; discharge rule)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (judicial attention to evidentiary weight of damages and jury discretion)
- Binur v. Jacobo, 135 S.W.3d 646 (Tex. 2004) (no automatic conclusive effect of witness testimony; jury may disbelieve)
- Deep Nines, Inc. v. McAfee, Inc., 246 S.W.3d 842 (Tex.App.–Dallas 2008) (summary judgment requires genuine issue of material fact)
- Golden Eagle Archery v. Jackson, 116 S.W.3d 757 (Tex. 2003) (jury may reject self-serving testimony; damages require support)
- Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000) (remittitur standards; appellate interference limited)