*1 123 N;” triаl “Betty court’s Wyatt Drilling v. we REVERSE ment interest. See Penrod (5th Co., Cir.1984); appellees 951, punitive damages to n. 3 of 735 F.2d 955 award Co., punitive appellees Barrios Louisiana Constr. Materials receive v. RENDER that (6th Cir.1972). Second, 1157, 465 F.2d 1168 trial court’s amend- damages; we declare ongoing calculating prejudgment interest judgment judgment and RENDER ed VOID jury. a is difficult for remainder judgment; on the first Sanford Vidrine, Boats, 958, Bros. Inc. v. 412 F.2d judgment is AFFIRMED. (5th Cir.1969); Airlines, n. Nat’l Inc. 973 13 (5th Stiles, 400, Cir.), v. F.2d cert. NYE not Former PAUL W. Chief Justice denied, 885, 157, 80 S.Ct. 4 L.Ed.2d 361 U.S. participating. (1959). However, justifications policy these inapplicable
are of a when beneficiaries bring
deceased seaman a Jones Act or DOH- wrongful claim. The
SA death Fifth Circuit prejudg
has indicated that the calculation of in wrongful
ment is easier death interest cases the loss occurs at time. because one Barrios, Stiles, 1168; at at 465 F.2d 268 F.2d CITY OF BEAUMONT Furthermore, 406 n. 6. the Fifth Circuit has Telephone Southwestern provision just held that DOHSA’s “fair and Appellants, Company, compensation pecuniary for the loss sus v. prejudgment tained” in mandates interest special the absence of circumstances. Stiles CONSTRUCTORS, EXCAVATORS & holding prejudgment at F.2d 406. INC., Appellee. interest recoverable under DOHSA percent where court awarded the district ten No. 09-92-029 CV. annum,
per per the court and where itself Texas, Appeals Court calculation, prejudgment formed interest Beaumont. the Fifth Circuit stated: We do not believe that rationale for 16, 1993. Dec. disallowing prejudgment in interest Jones Rehearing Feb. 1994. Overruled justifies brought Act at law cases disallow- ing brought that interest DOHSA cases Dissenting Opinion of wrongful at law. Most of Burgess Feb. 1994. Justice death case occur a moment. Calculation from prejudgment interest that moment relatively easy is a task.
Snyder, at 839 F.2d 1094. appellees
Accordingly, we hold recovery prejudgment
entitled in- Furthermore,
terest under DOHSA. be- wrongful action
cause this suit is death Act, personal
under and not a the Jones action,
injury distinguish this we case appellees were entitled to
Cano and hold recovery prejudgment interest under point Appellants’ Act. thirteenth Jones
of error is overruled. trial court’s REVERSE “Betty N” RENDER the F/V appellees nothing against the take F/V
126
Tyrone Cooper, City Atty., ry Asst. Bruce W. to Excavators’ contract. Bell had no con- Cobb, Beaumont, Deborah Heaton McElva- tractual relation with Excavators and the Dillard, Kovach, Houston, ney, McElvaney telephone company & was not advised that the Oleson, Beard, Cheryl Wells, Peyton, actually D. contract and exe- had been awarded Crawford, Beaumont, Greenberg, April Hunt & cuted until Bell received a notice (the appellants. preconstruction meeting precon- certain meeting). Query: struction Were the 220 Scott, Goforth, Lewis, Robert Scott & working days salutary available and Williams, Houstоn, Duesler, Thomas W. City? Query: Could not the look to the Adams, Duesler, L.L.P., Coffey & E.Wm. days scheduling City’s work? Heaner, Jr., Co., Gulf State Utilities Beau- wording think From the contract we mont, Lewis, Henry, Clint W. Lewis and *4 yes query. Nothing the answer is to each in Beaumont, appellee. for basic contract authorizes the Excavators project. the accelerate work the WALKER, C.J., Before BURGESS, BROOKSHIRE and JJ. The record reflects that Excavators com-
pleted project its contract on the within the OPINION days. allotted Excavators was assessed no penalty damages types or other for un- BROOKSHIRE, Justice. timely completion. clearly The evidence In March of Excavators & Construc- percent that a 16.7 shows Excavators made (Excavators) tors, Inc., against filed suit $168,000. project, being profit on the about City (City), of Beaumont Southwestern fin- Bell’s contentions are that Excavators (Bell), Telephone Company Gulf States Utili- contractually project ished the within the ties, (GSU), Shipman, Inc. Fittz & Inc. profit allotted time and made the that it (Fittz), Cable, (Cable), Liberty T.V. Inc. intended to make. It was demonstrated that inefficiency delay damages allegedly for opportunity perform no loss or to bid or performance suffered Excavators in the any other work on other contract existed. City. a contract it into had entered Excavators lost no other work. Excavators settled the enti- with several of prior ties to trial. Trial was had before a Excavators’ Position and Contentions
jury, jury and the found in favor of Excava- vis-a-vis Bell Judgment tors as and Bell. brought legal proceeding Excavators al- was entered in favor of Excavators and it delayed performance leging that was in the it pay ordered the Excavators’ improvement of its excavation and work indemnify partially and also ordered Bell to relocating telephone poles. delay Bell’s in its under Ordinance No. 85-50. From alleged it as a Excavators suffered appeal that this ensued. resequencing by result of the Bell. Excava- tors claimed it suffered inefficiencies due to The Basic Contract and its Provision for delays resequencing Bell’s in work. These Working Days Working and 240 caused because Excava- inefficiencies were Days Completion for Final tors contended it had to relocate and reas- City agreed to a Excavators sign equipment its own and its crews of 8, 1986, April nearly written contract on working claimed men. Excavators paid one million dollars to be and awarded equipment charges rental and labor costs. Excavators; provide Excavators was to very substantially generally costs These widening improvements to street and other after occurred within six months Avenue, Highland City. in a street preconstruction meeting. widening improvements and the were to be substantially working completed within 220 Question Enterprises The Thomason finally completed days and within work 21*0 8, 1986, ing days. costs April On Bell was not a Excavators contended-for increased signato- alleged with certain ineffi- party to the contract —it never was a were associated utilities. were case addition new When- ciencies which this well Excavators n own workmen and own working any existing presented utilities obstruc- ever (Exca- work, then contractor performing crews work Exca- tions to vators) notify engi- previously professional would vators had subcontracted out work). (Thomason necessary job. move Enterprises neer on When Thomason services, poles, guywires, pipelines or Relevant to this matter Excavators claimed obstructions, initial other Excavators forced because work, necessary arrangements necessary duty to make the its contract it was to have its operators employees perform the owners and utilities. own the Thomason work with language of the contract lay so that off We conclude Excavators would have to duty put this on notice employees thereby allegedly run a contractor changes have to employees risk that own hired that all of the involved would their would be Nevertheless, during progress contracting firm. be made work— another upon beginning the Excavators insisted affirmatively Excavators claimed that its own since Hence, immediately. perform previously crew did not work subcon- efficiently have known that there would be de- tracted work as as Thomason should lays. clearly, And the construction contract would have and that such inefficiencies dam- (City) aged alleged provides the owner will not be amount of *5 delays $102,785. damage for of to about The Thomason issue liable account due work by changes owner-operator resulted of from sole decision Excavators. made only progress of utility Not and involved which hindered did Excavators increase its cost be alleged damages, mitigate to its the work. Nor will owner liable it failed for Thus, damages. by the due to relo- costs and dam- costs incurred contractor Excavators services, aged cating poles, ap- utility Excavators. service and purtenances. coming superintendent Evidence from for Thomason showed that chose Excavators Damage Delay” “No The for Clause perform simply to the Thomason work be- high profit cause it was and work that Exca- “owner-operator” in The term or “owner” performed efficiently vators work as City, the contract means but the broad Furthermore, Thomason could have. this owner-operator language to of used as superintendent of- testified that Excavators poles evidently utility would refer to other performed profit- ten Hence, Thomason work when utility operators. certain owners and able to so. do importance paramount are in this issues of One, damage delay” appeal. for does “no City
The
of Beaumont’s Point of
implicated
clause
and viable under
become
Reply
No. 1
Error
Point
Two,
damage for
record?
does the “no
of Excavators
(or
delay”
rather
preclude
clause
Excavators
Excavators)
recovery by
any inef-
for loss of
City’s point
The
number one contends that
ficiency
delay damages?
usually con-
or
As
overruling
City’s
the trial court erred in
strued,
delay”
damage for
the so-called “no
motion for
non obstante veredicto
essentially
contractor the
clause
denies the
clause,
damage
delay”
con-
as the “no
for
damages
delays of
right to
for
others
recover
tained in the basic construction contract be-
performance of a construction con-
in the
Excavators,
City
precluded
tween the
See,
Annotation,
Brunner,
T.
tract.
Maurice
recovery
delays
inefficiency damages.
for
or
Damage”
Validity
“No
Construction
Delay Building
Respect
Duty
Clause
Responsibility
Excavators
Contract,
187,
A.L.R.3rd
Inspect
Construction
the Work Site
(1976).
197-200
provided
itself
The construction contract
Texas,
provisions in construction
inspect
In
similar
that the contractor would
the route
given
by the
been
effect
during
bidding period
contracts have
the construction
Ball
City
v. R.F.
and a
courts. See
Houston
and check thаt location
utilities
for
(Tex.Civ.
Co.,
Inc.,
problems as
570 S.W.2d
possibility
Const.
conflicts
App.
by
operators
[14th Dist.]
writ ref'd
owners or
of utilities. Excava-
— Houston
n.r.e.).
wording
of the clause makes
by
tors
this and
arguing
refutes
counters
purpose
obvious its
and intent which is to
damages
that the
for
apply
do not
exculpate
liability
damages
for
damages
allegedly
by
that were
sustained
(1)
any delay
due to
“changes
from:
made
Excavators in this case.
owner-operator
utility
hin
(1)
argues
damage
that:
the no
(2)
work”,
progress
der the
“incurred in
simply
apply
clause
does
to Excavators
services,
relocating utility
services,
poles,
applies only
here because this
un-
clause
appurtenances.”
(2)
construction;
derground work and
disputed
It is not
the contract
provides
the contract
for work
between Excavators and
contains a valid
delayed
or hindered
if the Exca-
fact,
damage
no
In
put
clause.
vators suffered actual
and if the
entirety
that contract in its
into evidence.
contractee,
is,
City,
responsible
question
The crucial
is whether the clause
delays.
for the cost caused
applies in such a manner as to defeat Exca
recovery
delay
efficiency
vators’
or loss of
Bell’s Point of Error No. 1 and
damages.
practical
pragmatic
There is a
Legal Duty
the No
Defense
reason
delay”
for “no
clauses to
adamant, uncompro
Bell takes the
incorporated
be
in such construction con
(Bell)
mising position that it
owed and owes
record,
tracts.
this ease and under this
legal duty
to Excavators. Bell maintains
parties actually
knowledge
and fore
total,
that it and Excavators were and are
possibilities
delays.
language
saw the
legal strangers.
duty
Bell claims that no
of the contract itself stated: “It is contem
whatsoever existed that
was owed Bell
plated
existing
that the removal of
utilities
Excavators.
record is clear that there is
accomplished
the construction area will be
*6
any
a total absence of
contract between Bell
during the work of this contract.”
It
is
Hence,
and Excavators.
there can be no
parties
obvious that the
to the contract and
duty arising
ordinary
out of a
contract. Bell
especially
actually contemplated
argues
duty
that no common-law
exists and
delays under the contract sinсe the work was
duty
imposed upon
no common-law
is
it.
existing
to be done under the
circumstances.
Furthermore,
argues
question
Bell
that the
Again, Excavators elected to start work at
duty
strictly
question
of
a
of law for the
once, thereby breaching
scope
a
of the work
appellate
trial court or the
court to decide.
provision. The record reflects that Excava
compare
County
and
See
Fort Bend
Drain
plenty
ample opportuni
tors had
of
and
time
Sbrusch,
(Tex.1991);
age D. v.
The Record and the obviously contemplation within the Damage Thereunder of the “No parties logically and there were intentions on Delay” Clause *8 part parties recognize the of the to an as integral part of the basic contract. parties, Both the and Excavators cite the clause contained in Item 600.07 Important work done Excavators was the contract. This has clause been and will underground language construction. The continue to be referred to ás the “no dam spelled out in Item 600.01 defined under- age” clause. Excavators insists that this “no grоund construction. We think various damage” applies only underground clause to clauses, phrases, provisions, paragraphs underground construction and work. This ambiguous; of the contract are if not says clause it not in is involved this case. ambiguous, they are inconsistent with each disagree. proves The otherwise. record other. But the record the reflects that under heading “Governing Specifi- damage”
Under the contract the “no clause stated that Provisions”, Special cations and (City) there is an the owner will not be liable dam- for “Specifications Item 600 entitled for ages delays changes Under- on account due to ground owner-operator (City). Construction of Water and made the Sewer This construction, Pipes.” underground applies underground Item 600.01 describes clause to nec- that when fails to observe exclusively underground construc- not services, guylines, any poles, underground essary Importantly, con- to move tion. struction, record, obstructions, delays in under this caused the contrac- pipelines, other Damagewise, delays necessary these surface work. make obligated to tor was intermingled. The de- were intertwined and owner-operator of the arrangements with the lays by underground construction of the con- general conditions utilities. The delays. separable from other were not provide that the contractor specifically tract damages Certainly, expert on Excavators’ means, solely responsible for the be shall Thus, separate did them. the “no dam- not methods, proce- techniques, sequences, and applies age” in case. clause construction, including notice to of the dures problems. additional, The contractor independent utilities of
There is an clause adequate planning and providing duty in the contract this: “nor will to make basic had excavations started. [City] [sic] be liable cost before preparation OWNER relocating poles, “Sequence incurred utilities of Work” so Item 600.02 entitled service indepen- appurtenances.” This services mandates.
dent clause absolves owner of utilities liability occurring costs Schwartzkopf, Testimony of William relocating poles. utilities and service Expert, on Excavators’ Moreover, Item is and is 600.01 harmonious Damages 600.07, doubly making to be read with Item applicable damage” the “no clause. Excavators, plaintiff, offered an The He expert, Schwartzkopf. testi one William position that “no
Excavators takes the
damages amounted
fied that Excavators total
damage”
simply
clause of the basic contract
$230,721. This exact amount was awarded
but,
apply
does not
to it
this clause does not
from all
jury.
This total sum resulted
make
such
limitation. Excavators further
delays
partici
all inefficiencies
all
argues
damage”
appli-
that the “no
clause is
job. Schwartzkopf
only
pants
parties
underground
cable
construction and
underground
freely
road work
not
con-
cross examination that
admitted
But,
point
jury
struction.
give
that Excavators
he could not
a total number of
if underground
misses is
construction
days
delayed.
had been
that Excavators
inefficiencies,
delays,
defined causes
or hin-
expert
also
that he
admitted
work,
ders the surface
then the owner or
study. He
no
gave
opin
done a causation
operator
simply
of utilities
liable
delay,
any,
as to
to what
ion
causation as
if
damages.
such
Excavators has failed to
damage.
gave
opinion
He
caused what
prove
separation
resulting
of the
confluent
party
caused what
as what
defendant
damages.
damage.
study
He conducted no
as to an
allocation of the
between
performance
an
contract had
overall
gave
Bell.
of the dam
He
no allocation
$973,701.50.
bond in the
There
amount
parties.
ages
the numerous
between
record,
perfor-
were two bonds in the
one for
payment,
one for
both of which
mance and
prov
plaintiff
had the burden
scope
amounts. The
identical
(and
ing that
and hindrances
clearly
work
includes storm sewers and wa-
therewith)
connected
that were sued
events
scope
improvements.
ter line
plaintiffs money
upon actually caused the
improvements.
sewer
work refers
storm
*9
damages. That burden is an essential ele
extending in-
improvements
of
These
consist
of
and the
ment of Excavators cause
action
building new
let leads and
inlets
even
resulting damages
of
must be shown.
amount
system.
new storm sewer
construction
aof
as
of
The causal nexus as well
the amount
underground construction.
Storm sewers are
by compe
damages must be demonstrated
improvements
line
of
The water
consisted
Compugraphic
six-inch,
Morgan
v.
tent evidence.
replacing a
cast iron water line with
729,
(Tex.1984), the
Corp.,
larger, eight-inch,
675 S.W.2d
asbestos cement water
eight-inch
underground.
line
held:
line. This
Court
involved,
upon
Whether the event sued
tractor
that there was a
caused
causal
any injuries
plaintiff
delay
is another
relationship
mat-
such
and the ne-
between
entirely.
ter
The causal nexus
cessity
between
of additional actu-
reasonableness
the event
upon
plaintiffs
sued
and the
Company
al cost.
Construction
J.D. Hedin
injuries
strictly
damages
is
referable
States,
v. United
347 F.2d
The burden rests the contractor elements or items of additional cost was what by competent to establish evidence the dura was described as flatwork. “Flatwork” was *10 delay, delay, tion of the fact of such the driveways the and term for the concrete and that greater pavements. originally there was no fault of the con- had been This work Thomason, you’ve up with a final num- Q. later And come was subcontracted to at by delay itself an additional in this disruption damages done ber $102,785. expert The cost to Excavators of how much? case of very that at first this like stated sounded $230,721. A. decision, to poor business but this was done keep together. Query: Was the work crew The trial was entered City against an element of the City the in the against favor of Excavators Bell? not. and We think $230,721. exact of the amount (in appellee’s position point on this inefficiency dam delay all the and amount of determining directly perform previously to by Schwartzkopf ages as testified to work) being subcontracted was that it was very cent. This was very and dollar to telephone company working told that jury’s finding. also way getting poles out of the and city pre-judg- additional Against was an clearing other the area entities $125,494.57. expert ahead of Excavators. The stated that ment interest award of prudent Excavators had made a business Additionally, concedes that expert then another decision. The described delays from experienced certain excavation being equipment item as additional cost of alleged other than those in the law causes $65,374. expert then a third included lay- missing engineering suit. It referred to item, payment an Thomason. additional to shutdowns, rain, hurricane, outs, under- perceive record that this that the reflects alia, gas ground including, utilities inter payment to Thomason was an sum additional underground con- lines and certain water money con- of over and above Thomason’s duits. price compensate attempt tract to Thoma- Query: charged son. this to be Was firmly abundantly is clear’ estab- It and Bell? The next item of addi- Schwartzkopfs estimate of dam- lished amounted tional indirect cost excess ages truly represented the total amount of all $31,800. expert’s based on the This was all actors and entities on factors testimony project that the could have been job. jury precisely answered the esti- September finished but was mate and amount testified Schwartz- Therefore, job
finished until if the had later. hence, jury kopf; answer levels completed by September been the end of Bell, ’86, had against the some which the Excavators could moved on have Cable, projects correctly to other these indirect so-called attributable to to have been charged Entex, costs could have been to the other GSU, other subcontractors However, new, projects. no other available engineers. project professional well as projects were shown Excavators.1 Hence, $230,721 figure obviously could confluent, correct; syn- it includes testimony not be expert’s The climacteric of this damages. сhronous the record is: fact, telling you’re Q. During project the course of this the record As matter 1. you those Jury had shut down on any that utilities other reflects that Excavators did not recall days? may them to work been available for I’ve never claimed utilities has us shut A. perform. Seemingly, contract for and Excava- for the excavation. down other than actually down tors concedes that it never shut go stop Q. do oth- You would excavation and alleged delays performed but rather other due items of work? er Cooper, required by the Earl work contract. correct, A. That’s ma’am. superintendent, Excavators’ testified: Q. work of work were items of Other items days you Q. When about the couldn't we talk by you pursuant required performed to be Highland Project, Beaumont; excavate out on the Avenue your contract with telling gentlemen you're not ladies correct. Yes, ma’am, Jury days you they excavate on those couldn’t were. A. sure any during didn’t do other work? them at some time You to do time, no, project? at A. I’ve never said that right. That’s ma’am. *11 Sehwartzkopf damages. testified: on the law error is Reversible of. Well, proved. Q. just finally let’s move to— delay portion. your figure And is —are Sehwartzkopf through July testified that your figures represent intended to the to- trial, charges 31st of the his total as an tal delay inefficiency damages by caused — $12,580.34. expert witness would be excavation, any delay including delays provision the absence of a contractual Cable, by Liberty GSU, Entex, TCI or or contrary, a contractor situated such as anybody else out there? may be entitled to recover dam- They’re represent A. intended to the to- ages city, from a contractee home rule for delay by tal other than normal causes. I delay, inefficiency losses hin- due to mean, basis, clearly day-to-day you on a if work; drance of the but the contractor must rainstorm, get a delay; that’s a but that’s (1) prove: delayed work or hin- was expected job delay. an and estimated in the (2) dered; damages that it suffered because delay The parties, from what I call third hindrance; delay very impor- mentioned, people you that’s the— (S) tantly, responsi- that the contractee was Q. figure’s damages Yeah. Your not for ble the act or which omission caused delays alleged charged caused delay, inefficiency, or the hindrance. particularly of Beaumont over This Excavators has failed to do. The water meters? responsible delays would not be A. To delays the extent those are normal subcontractors, parties, third or other and I—that’s correct. operators, utilities owners or or acts of na- ture, God; or acts of nor would Bell. Q. rep- This calculation is not intended to damages you resent consider attrib- Issue Causation presence utable to the of Southwestern undergird opinion To and buttress our we poles? note that the record shows from Excavators’ Well, significant part delay, A. of this expert: my reading from I didn’t do a causa- —and Q. Okay. personally give You can’t us a analysis. significant part tion But a itof days total amount that Excavators & appear does to be attributable South- delayed project? Constructors was on this poles. western Bell part A. I wasn’t that as asked to do Q. But have not done a causation so, no, my analysis; I can’t do that. study and no allocation? Q. give any A. I opin- have not done an allocation. That’s You weren’t asked to just reading jobsite diary ions on causation in this case at all? —not diary, daily They reports. appear added) (Emphasis A. No. cause, significant poles being to be a those Thus, Sehwartzkopf unequivocally stated that there. opinion damages his was not based or saying You’re that’s true of GSU origi- allocated on causation as to the various poles; isn’t that correct? certainly nal defendants not as to the say I’d have to I can’t differentiate City perceive and Bell. Excavators had poles they between whose were. It was settled with several other defendants before poles generally. settling parties trial. The defendants are Thus, Sehwartzkopf delays by appeal. expert included this testified definitely overlapping GSU and caused GSU as well as there was some $230,721 Again, damage figure delay inefficiency others. claims and the claims. No encompasses study disruptions productivity all the had been done this case, “anybody expert claims and to do a attributable to nor had this been asked analysis ... out analysis. scheduling there”. This award was schedule confiseatorily adjudged against been and distributed furnished unfair; Excavators; pro- Bell. It is due Excavators failed to do emasculates cess; orchideetomy performed Importantly, expert an asked: has been so. *12 analysis delays that have I was to assume that here is asked —what delays analysis a damage the and do assumption on an that all of these were based added) utilities; accordingly. (Emphasis delays by were caused is correct? Hence, expert not the the could answers of inadvertent; they repeated been have No, entirely A. that’s not correct. It’s several times. assumption all based the job Sehwartzkopf agreed had Mr. that the by persons are caused other than years four he been finished for about before Excavators & Constructors. the had first had a chance even view Q. Okay. segregated You haven’t these Further, interpret the project as we site. delay sundry among various and claims damage record included estimates there were various out the companies the involved on by back concerning made the work taken project? Thomason, a Excavators subcontractor. from that, requested A. I have not been do by Excava- Extra labor costs were incurred added) (Emphasis I nor have done that. work, In Excava- usurping tors. Thomason’s itself; mitigate tors it failed to wounded “[D]elays by persons are caused other than damages. definitely Excavators & in- Constructors” defendants, cludes entities and other factors It must that there is evidence be noted City judgment than the Bell. But the Exca- probative evaluation that considerable provides City pay that the and Bell all dam- vators took the Thomason work because over total, concurrent, ages highly profitable intermingled, the same to Exca- would be —the vators; damages. requiring coeval error Thomason had bid the work at This is re- cheaper versal. amount. jury damage the issue at answered point testimony At another in his the damage precisely figure given total the same expert, Sehwartzkopf, unequivocally testified $280,721. Hence, expert, namely, the this figures damages represented that his judgment figure brought forward delay inefficiency damages total the total against necessarily and Bell. It is delay damages by any delay caused incorrect, requires reversal egregious, excavation, by Cable, including delays judgment. jury’s neces- answer of sarily Entex, GSU, anybody job. or out on else damages or had to include some double included, damage figures definitely His in the damages overlapping elements of amount, damages delay total wrongfully against assessed a number of entities other than proves City and The record that the Bell. City and Bell. underground with the construction interfered expert Again, the reiterated he did Hence, surface work. excavation analysis not make a causation and he damages and that were was awarded monies study as
made a to the allocation dam- disallowed the basic contract. ages. His “I answer was: done an important para- We note that an decretal just reading job- That’s allocation. from graph judgment awards Excavators diary diary, daily reports.” site the—not Beaumont, $230,721.00 against plus April that sum from interest on important testimony was reiterated 18, 1991, through October date again. again in the rec- time We find judgment, total amount of interest ord, question: “Again, you’ve study done $125,494.57. Thus, amounting inter- this Answer: “That’s causation this case?” ” important Then est award is incorrect. this correct. paragraph portion orders decretal The record reflects: against City, together judgment Well, delay I causation in- pre-judgment post-judgment don’t do a with all terest, analysis quite joint at all. shall I’m not sure what be a several mean, Thus, joint against your question I do—I also Bell. and several is but didn’t contaminated, delay. judgment against asked causation Bell is erro- I wasn’t to do a neous, addition, $173,040.75 responsible and harmful. costs for which the was ordered to be received totalling to Excavators on this third Bell, plus pre-judgment $222,337.50; certain element post-judgment interest leveled Bell. *13 (4) appellate attorneys’ fees 75% of all the harmful, er- Since we found reversible City responsible for which the becomes $230,721, joint in the ror initial amount of the appeal in the event of an to Excavators liability against and several Bell must neces- case; in this sarily be reversed. (5) costs for which 75% of all taxable court paramount para- In a later and decretal City responsible; the is graph, judgment the that the total decreed (6) post-judgment interest which accrues judgment amount of the trial in favor of all set out above. the sums $777,497.23 against City the to be City not We conclude the is indemnified plus figure taxable court costs which exclud- fees, fees, attorney’s professional Bell for ed, course, post-judgment ap- of interest and Again, necessarily, errone- exhibit costs. pellate attorneys’ figure But this of fees. ous, $230,721 is the of all the invalid basis $777,497.23 figure included the erroneous of large other awards and for that reason $230,721. paragraph contained an order judgment against Bell must be reversed. recovery theory of was based on the promissory estoppel. Excavators recovered Promissory Estoppel $537,161.67 $537,161.67 against Bell and this jointly severally record, amount was awarded determine Under this we City Bell. The erroneous promissory estoppel is not the basis for $230,721 pollutes amount of vitiates and leading an of action to a affirmative cause subsequent mathematical calculations. recovery presented under the facts this case. Restatement (Second) CONTRACTS of paragraph, Then in a later decretal (1981) generally § the doc 90 has dealt with judgment pleadings recites that based on the promissory estoppel being trine of based trial, parties, of the the evidence adduced at type promise promisor on that which the of verdict; jury’s and the the court had deter- reasonably expect to induce action or should (pursuant mined to the terms of the franchise part promisee or a forbearance on the agreement City Bell between the person such third and which does induce evidence) City into is was admitted Promissory estoppel action or forbearance. partial indemnity entitled to from Bell for a if, if, only injustice applicable becomes part judgment City to owed only by can be avoided the enforcement judgment Then recites that Excavators. promise. promise made. But a must be have and recover a made; promise we We conclude that no indemnity against paid Bell for all amounts rely conclude Excavators did not on Dillard’s pursuant judgment up to Excavators utterances; and we so hold as a matter of to: Promissory estoppel in its re law. basic (1) $226,106.58 delay 75% of the or loss (2) (1) promise, quirements demands: fore efficiency damages by Ex- suffered seeability promi- thereon reliance responsi- is cavators for which the (3) sor, prom- substantial reliance ble, $169,579.93; totalling [the 75%] Fischer, English isee to his detriment. v. $230,721 the harmful some [Note: —less 521, (Tex.1983); Traco, 660 524 Inc. S.W.2d reducing given small credits Co., Inc., 814 v. Arrow Glass S.W.2d $230,721 $226,106.58 the basis —is denied). (Te x.App.—San Antonio writ 190 erroneous calculation] has failed in each of these re (2) pre-judgment 75% of the interest quirements. $122,984.68 amounting on that sum $92,238.51; precedent establishes Decisional wrong] [This amount of interest requirement separate element or fourth and (3) estop- $296,450.00 engage promissory attorneys’ the doctrine 75% of the
fees, is a pel. separate fourth and element professional fees and trial exhibit That
137
misrepresenta-
negligent
so-called
injustice
avoided
finding that
can be
definite
tion,
any,
Bell.
if
made
only by
promise. See
enforcement of
Bank, Etc.,
Nat.
Fretz
Co. v. Southern
Const.
clearly shown
meeting it was
At this same
(Tex.Civ.App.
[1st
S.W.2d
to do
good deal of work
—Houston
still had a
that GSU
1980), rev’d and remanded on other
Dist.]
representative of
in the future and
(Tex.1982).
grounds,
More
626 S.W.2d
attendees
notified the
clearly
warned
over,
prove
failed to
the cor
Excavators has
work as
to start its
be able
that Bell would
promissory
under
rect measure
completed
project.
as GSU
soon
estoppel.
merely
Furthermore,
representative
Bell’s
four
looking
probably
at
Bell was
stated that
*14
manner,
perceive, the
guarded
In a
we
starting date
part;
no
Bell’s
weeks on
refraining
Supreme
Texas
Court has
none could
Bell. At that time
given for
was
approval
overtly
affirmatively condoning
wait on other
given
Bell had to
be
because
promissory estoppel in situations such as
Elec-
including
and Gold Crest
parties,
Cable
has
Supreme
us. The
Court
the one before
among
factors. The
Company,
other
tric
estoppel
and stated that
written on this issue
fact,
In
the owner
one factor.
weather was
operates
pre
in nature and
to
is defensive
(depending on
explained that
of Excavators
existing right.
vent the loss
an
It does
put
many people Excavators decided to
how
liability
operate to create
where it does
drag our
job):
don’t intend to
“We
Bank
otherwise exist. Hruska v. First State
in a
feet that’s for sure.” Excavators
(Tex.1988).
Deanville,
promises were utterances or some Negligent The Doctrine of speculative ideas as to future events. No Misrepresentation negligent misrepresentation Dur- occurred. ing point April 17th discussion at a By reasoning, theory like —but response any question not as a or answer negligent misrepresentation not entitle does query posed by repre- Excavators —Bell’s damages. profits See Excavators to lost sentative, Dillard, Scott stated that Bell was § 552B ToRts, (Seoond) Restatement “looking probably at four weeks on our *15 (1977). provision that mandates part” “probably” operative is the word. — damages theory or recoverable under meeting, Cooper,
Later in the same
Earl
negligent misrepre
cause of action known as
superintendent
representative
of Ex-
only
damages
sentation are
those
cavators, posed
question
a
to the different
compensate
necessarily
to
would
be awarded
utility representatives.
question
gen-
in
pecuniary
plaintiff-litigant
actual
for
was,
long
eral
“how
would Excavators be
upon
losses he has
and because of
suffered
looking
everybody getting
pole
at
off the
so
upon
misrepresenta
his actual reliance
they
response
could
be moved.”
here there is no reliance —nor
tions —but
question
there was no definite or set
negligent misrepresentation.
gave
response
time frame. Bell
no
and made
negligent misrepre-
this
Under
doctrine
promise
response
query.
no
a
as
sentation,
supply
must
known
speculative
the dеfendant
maintains that
it was
as to the
timing
instigation
completion of
Bank v.
of Bell’s
false information. Federal Land
(Tex.1991).
Sloane,
the relocation work.
We find
139
Contracting Company v.
The utterances had to do with future Wunderlich
United
States,
(1965);
complicated problems
173
180
events. There were
351 F.2d
Ct.Cl.
hin-
compare
with the future events. There were
J.D. Hedin Construction
see
States,
inherent
in the future
F.2d
171
Company
drances
v.
United
(1965).
dependent upon
proof
pro-
events. Bell’s actions were
No causation
Ct.Cl.
third, fourth,
parties.
Proving
fifth
the to-
presented.
actions
bative value
confluent,
damages
synchronous,
tal of
coeval
above,
From what has been discussed
wholly inadequate.
appears
justice
that the element of
must be
truly
in order to
the doc-
established
invoke
Damages
Apportionment of
negligent misrepresentation
negli-
trine of
injustice
gent representation.
thinkWe
Furthermore,
apportionment
there was no
in this
Excavators has
been shown
remaining
damages between the two
negligent
record. We find no evidence of
established rules of dam
defendants. Under
misrepresentation.
Excavators made
a
Texas,
ages
applied in
when certain dam
profit
project.
handsome
ages
injuries result from two or more
causes and one defendant is liable
Indeed,
different
very
reading
we decide a
careful
of the causes of the
some
meeting
transcript
preconstruction
all;
proper
then
order that there be
replete
warnings
demonstrates it was
damages,
award of
it becomes incumbent
and admonishments
Bell to Excavators of
portion of the
plaintiff
to establish which
having
Bell’s uncertainties of
to wait on the
from the causes for which
others,
resulted
completion of the work of
of no defi-
is liable. 28 TexJur.
particular
date,
defendant
beginning
ending
nite
and no definite
(1980);
3d,
§
Damages,
see and com
perceive
date. We
that an essential element
*16
Matthews,
pare,
v.
119
Tucker Oil Co.
S.W.2d
negligent
of the cause of action based on
1938,
(Tex.Civ.App.
Worth
misrepresentation
negligent
is that the
mis-
—Fort
writ);
compare
see also and
Panhandle &
representation had to contain the element of
Wiggins,
Ry.
v.
future. a careful The of Excavators analysis transcrip- of the notes and verbatim against causes of action Bell Excavators’ preconstruction tion meeting would negligent misrepre- encompassed negligence, speaker rather that the show uttered state- promissory estoppel. sentation and Excava- full ments that were of caution. alleged representa- tors of certain breaches allegedly by Bell. promises tions or made Burden of Proof on Damages— pleаded Additionally, Excavators for attor- Whose Burden? City ney’s fees and interest and sued the damages The amount of needs to be expert also for its trial exhibits. its fees and proven reasonably certainty with to each 1991, April City part In the latter of filed plaintiffs defendant. This is the burden. against a cross-action Bell for indemnities The causation or causal connection between allegedly City pursuant City’s due the to the inju plaintiffs the event sued and the Receipts Gross Ordinance No. 85-50—the damages by must be ries or demonstrated particular franchise. This cross-action was of‘probative evidence value. and com See separately by the to be tried as announced Corp., pare Morgan Compugraphic v. Bench. trial (Tex.1984). dealing S.W.2d 729 When with construction, plaintiff jury responded questions contract of has the part pertinent, relevant that burden to show the nature and extent of found comply obligations its alleged delays damages and the had failed to various by delays the utilities and that Bell caused which are connected or caused to relocate delay damages. part. compare on each defendant’s See Indemnity damages of and amounts Bell’s Position on These elements alleged Under Franchise to Bell’s were restricted nonperformance City’s alleged or the failure entry Bell contended before the to relocate certain meters and water coordi- level, judgment final at trial utility nate certain other relocations. against solely to recover Bell under elected theory promissory estoppel, being only expert gave testimony that Excavator’s his recovery by affording attorney’s fees figure conclusion line ultimate and bottom plaintiff. We determine cannot delays was based on total number of fees, attorney’s fees, experts’ recover inefficiency damages that were caused Furthermore, against cost exhibit Bell. actions of numerous entities and natural complained that in to be a what it contended that, than Bell and forces other (and surprise ruling any notice or without furthermore, suffered Exca- evidence), present any opportunity to multiple included vators factors utilities a judgment trial court entered in favor of the poles. than water other meters and City against Bell the indemnificatiоn under (by Sehwartzkopf): record reflects theory. part The indemnification Q. been you In this case have not re- entitled to ruled analysis, quested to do a schedule partial for the amount it certain indemnities you? required pay to Excavators. A. That’s correct. Later, to a pursuant December of Q. And a schedule anal- haven’t done Bell, the find- request of court rendered trial ysis? dealing ings law of fact and conclusions of I have one. A. And not done City’s with the indemnification claim analysis you have here is January supplemen- Bell. certain assumption an that all of these based on findings law tal of fact conclusions of utilities; were caused However, objec- rendered. Bell's later correct? requests tions and for either additional findings amended and conclusions of No, fact entirely that’s correct. It’s judge. denied law were the trial assumption that all based *17 delays by persons other than are caused contesting the presents points Bell of error Excavators & Constructors. Bell, in favor of to the adverse Q. Okay. segregated You these haven’t based on indemnification under Ordinance among delay sundry claims the prior to the trial various 85-50. Bell contends that pro- claims, companies out on various involved trial court deter- of Excavators’ ject? mined to hear the cross-ac- indemnification later, separate time. against Bell at a
tion that, do requested A. I have been only Ex- Accordingly, proceeded the trial I nor have done that. Bell, remaining cavators’ theories you it’s custom- Q. And understand Inc. Fittz & City, Shipman, and Fittz & for utili- business ary in the construction Shipman close of the was dismissed at the aboveground ties, having specifically those by the trial court. evidence pole every- until their poles, not move typical? Isn’t that pole? off of that one’s Two, Three, of Bell’s Points Error said, you nor- To restate what I think A. Challenging the and Four — pole won’t move mally owner of the Damages Awarded are off of the pole until all the wires of only clearly that the The record reflects belong to. they pole, no matter who damages thereof of and the amount measure in the indus- Q. practice that’s the And loss its so-called proffered Excavators was try? efficiency delay damages result- of industry. practice A. That’s also multiple and resulted ed from factors including multiple parties, actors and you saying delay hours? party. Are not a A. who was one subcontractor No, job. Q. layouts. other actors and entities on the Nor did Schwartzkopf reach a conclu- determine and I’m I A. not —I can’t reference that —how concerning portion alleged sion what use that term. of nature such as resulted from acts Well, Q. engineer has some relocation But, spite a hurricane. hard rains and layouts prepare. evidence offered Schwartz- Oh, you engineering A. mean the draw- $230,721 kopf the full that the amount ings? entities; damages from numerous factors and Q. Sure. nevertheless, jury question answered A. To extent those weren’t 'normal number ten in that exact amount. delays, they would he in that. I calculated City simply amount of did not cause that say analysis say have to I’ve done no damages. attributable, any, how much should be if Also, clearly jury’s award is erroneous engineer getting drawing mathematically wrong, because the changes promptly. just out I don’t know. matters of un- amount includes Q. point many is that items are derground compare construction. See and your included or can be included in calcu- Co., Hurst v. Sears Roebuck & 647 S.W.2d lations here which are attrib- (Tex.1983). presence utable to causes other than the poles presence Southwestern Bell or the Jerry Testimony Braxton’s on Proftts Utility poles? States Gulf case, Upon Jerry the trial of the Mr. causations; A. There could be other Braxton was a witness. He was the 100 that’s correct. I’ve not done nor have I percent owner of Excavators. He stated any I’ve done causation testified analysis. industry profits that the usual be and would percent
should be 15 and 20 on this between job. This record reveals that on another days theOf 89 downtime that are occasion, given testimony he had sworn original claimed in the Excavators & Con- profit might range per from 20 to 25 claim, structors’ did determine if cent —but not more. Excavators had made a days? rain However, profit percent. of 16.7 $230,721, Yes, percent award of the additional eight days sir. There were rain age profit percent. rise to would about included in the claim. profit additionally large margin defeats Q. Hurricane Bonnie included recovery promissory a basis based on es- claim? toppel because Excavators did not and can A. Yes. injustice that an not demonstrate was done *18 propеr Is it a contractor Exca- like basis, Upon to it. this additional Excavators delay vators & Constructors to claim dam- as a matter law is entitled to recover ages against utility company a or attorney’s litigation its fees and other fees anyone workday else on downtime expenses against In Bell. accordance prevents when the weather it? with the above discussion we therefore sus No, sir, proper. that’s not two, three, points tain Bell’s of error added) (emphasis four. Schwartzkopf affirmatively admitted and Five, Six, Seven, Bell’s of Error Points conceded that he had conducted no causation Eight Refuting Promissory Estoppel, — study any specificity to determine with what Fault, Attacking Allocation of And portions any alleged damages resulted Rulings Trial Court’s on Certain Mo- conduct; portion from Bell’s nor what tions alleged damages City’s resulted from the conduct; portion alleged explicitly nor what The record demonstrates that that Excavators resulted from GSU’s conduct and Bell could not have foreseen any parties rely upon the conduct of other to. the suit and would utterances made employee fact, Bell who made the utter- employee. In Excavators did not Bell’s spoke ambiguous un- interpret- ances them in an rely. utterances not be could way as to the time or times involved. certain promise upon as a which Excavators ed any The utterances did not induce action rely person should or could nor which part from of Exca- forbearance action utterance or should making the could have vators. (Seoond) any reasonably expected induce detri- would Restatement of CON- § 90 mandates that for a further part mental action or forbearance on TRACTS binding to be and to be promise actionable Excavators. (Second) Restatement of CON- promisor injustice must in- upon the an be 90(1). promisor § A Bell was —and TRACTS promise binding only and the is volved certainly a maker of an promisor not a if —and only injustice by en- if, an can be avoided under utterance cannot be held liable this injustice forcing promise. that No to Exca- promisor only A made record. can be liable its vators is shown. Excavators recovered prom- meaningful reliance his or her Thus, profit. anticipated we sustain Bell’s he or she foresee or should ise where does seven, five, six, eight. points of error reasonably foresee reliance. reverse the below. See and We negates any record is that But this one Sloane, compare Land Bank v. Federal $973,- Excavators not cancel its reliance. did at 442. S.W.2d City in it 701.50 contract with the had record, this Excavators did Under profit. never in- percent a 16.7 Excavators it in what manner that would have show contemplated actually it formed Bell that away from this lucrative contract walked binding walking away signed, from this con- contemplated walking away it even fact, City. In Excavators’ tract with Again, profitable this deal. Excavators corporate disprove any such pragmatic acts it scope of the work when violated “walking away”. simply perceive We do not duty by starting its its breached contractual any position was in to “walk that Excavators to find in when it did. fail this work away” from this lucrative contract. Excava- lengthy record that established that evidence away” it could “walked tors contends differently than Excavators would have acted contract. it did not “walk from the Since uncertain, if the conditional utter it did act proves away”, argues Excavators spoken. Certainly had not no ances been record, disagree. this reliance. We Under shown; produc nor is causal connection was impunity could not “walk cause; proximate nor cause demon ing is away.” Excavators no such intentions. had Consultants, Larson, v. Cook Inc. strated. Clearly, of a causal there was evidence (Tex.App 700 S.W.2d . —Dallas connection between Bell’s utterances n.r.e.). Again, ref'd we sustain Bell’s writ fact, precon- In at the alleged reliances. Excavators, eight. error we deter point meeting, that Ex- announced struction mine, way alleged nothing by take can already the basic con- executed cavators misrepresentation. Nor can it re negligent street-widening for this tract with try the same unless a remand ordered Query: practicality, how project. could Supreme Court. away” “walk from this lucrative record, additionally we Under entire street-widening contract? overwhelming great conclude *19 meeting preconstruction an autho- At the preponderance of the evidence is weight and representative of Excavators made contrary jury’s finding question rized on alleged order neg- such as: need a work dealing statements “We nine Bell’s number with month, ready a today.... were to start on ligence. We reach the same conclusion ago.... negli- jury’s findings and a half Our barricade Excavators’ month the as to as jury’s negligence. The an- people gence be out there tomorrow.... We and GSU’s will main dam- drainage question that end.... ten —the our swer to number can start the days evidence working age five or six issue —is incorrect because planning We are the exactness of as to greatly hours.” was literal- insufficient eight Excavators week amount. ly begin the work. chomping at the bit to Appeals delayed excavating Our Court of can unfind Gulf States or Excava- affirmatively. project? facts. We cannot find facts tors on this But, (of point negli note that on this Bell’s delayed. A. I believe was I gence) overwhelming preponderance have can’t make no—I a statement as the evidence shows Bell had hired an extra most, who did the who did the least. perform underground contractor to work and Q. Okay. immediately pro Bell’s crews returned to the my dealings A. I know in with South- ject following spite Hurricane Bonnie in Bell, up western if I called and asked them the fact that Bell had extensive hurricane something, they I do felt like repair and needed to much of its pretty responsive. phone system regular for its customers all surrounding over Beaumont and territory. meetings Did have on-the-site brought Work crews from other states were employees with Southwestern Bell about help in to emergency situation. One utility conference? witness, Fittz, Richard Faust of and also the Yes, sir, along I all believe with Richardson, Inspector Gary both testi I Liberty utilities had some with GSU always fied that Bell responsive to re Cable, and I believe we had some with quests for delay relocations and did not Ex Entex. Statten, cavators. superintendent David subcontractors, for one of Excavators’ testi testimony given by The above Richard delay fied that Bell progress did not of Faust, employee Shipman, an for Fittz & project. We find and hold that there was consulting engineers project. Faust pervasive underground work and buried professional engineer. awas
work that had to be done in connection with above, As noted Excavators breached the certain belonged utilities —some of which definitely basic contract in that it and affir- proves Bell. The record in connection with matively started its construction and its work preservation old, historic oak trees prior telephone, to the time the relocation of go that Bell underground decided to completed. electrical and water utilities was portion being designated of the work that, proffered addition to Otherwise, the center section. Bell would witness Faust. This witness vouched heavy, have received defeating flack from the owner, being fact that the of Beau- Society Historical of Beaumont and other Bell, mont —not should have furnished the powerful groups of citizens. upon lands per- work was to be Furthermore, perma- formed. easements for Bell had contracted independent with an changes existing nent structures or facili- contracting company Rody known as Con- ties paid would be obtained and underground struction to do certain con- City. provisions place in the contract struction and buried Highland work on the obligations upon these relevant duties and project. Avenue This was done Bell to Bell. But we held —not expedite matters and to accommodate Exca- duty was owed Bell to Excavators. clearly vators. record also reflects that negligence The issue of the of Bell is to be realistically anything, before Bell could do only Supreme retried if ordered GSU, Cable, complete and others had to Court. their work. The record shows Cable did preconstruction meeting. not attend the Ex- Bell’s Point of Error Number Twelve— apparently cavators never called or notified Limiting Instruction Cable; nor did Excavators first contact Ca- preconstruction ble after the close of the point Bell’s of error number twelve meeting. charges that the trial court erred in submit ting jury questions, being certain six and
Noteworthy is this evidence: seven, they in the form submitted because you any Do have requested criticism or com- failed to include Bell's limited in plaint about think argues Gulf States? Do struction. Bell that 277 Tex.R.Civ.P.
144 process agree. due was not denial of Bell’s constitutional heeded. We We conclude day merits jury questions rights having incom of in court on the six and seven were its Scott, having type proceeding plete. See Lone Star v. 759 and notice Steel Co. 1988, against conclude (Tex.App. which it must defend. We S.W.2d 144 writ — Texarkana denied); Hall, 424, given day Bell full that should have been its Rеeves v. 428 S.W.2d writ). Ques in (Tex.Civ.App. court. no — Austin proper tions six seven failed include a and to given a that Bell was not We conclude or concept rule as set out in Stowers v. to be and to opportunity reasonable heard Harper, (Tex.Civ.App. Tyler S.W.2d — in A orderly defend an manner. valuable n.r.e.). must be shown writ ref'd It right right that Bell not was the afforded representation promisor that the be present and to evidence cross-examine estopped in party caused the other to act against claims it. witnesses defense of different, way way affirmative from the that points our sustain Bell’s view of rationale we promisee action acted. This different fifteen, thirteen, fourteen, of error number promisee’s prejudice. must be to the If pro- points urge lack of and sixteen. These exist, estoppel not no these elements do then misconstruing process, cedural due error requested arises. Id. The instruction was City to the the intent of Bell and as substantially correct. We held that clause, indemnity and and the no evidence promissory estoppel applicable is not to this factually points involved. insufficient evidence case. We not retreat therefrom. This do governing, section 15 of Ordi- A relevant implicated only upon a paragraph is remand employs following part nance 85-50 in Supreme Court. wording: Company, assigns, its successors and Indemnity The Issue and harmless indemnify, shall save hold argues strongly injuries that the court any Bell and all claims for City’s cross action personal property announced that occa- damage separately against arising be considered Bell would out the construc- sioned maintenance, tion, reconstruction, attempt opera- tried. was no either to There up indemnity companies clause or to prove properly repair commu- tion or said added) against during (emphasis week trial. defend the three system.... nication this; despite the Bell maintains trial money damages de- sought prior try the indemni court’s commitment Highland Av- lays. widening project manner; never ty separate in a clause issue enue, perceive, resulted in betterments we theless, judg proceeded to render the court think there was improvements. We against half a million ment Bell for about City’s person- to the no or detriment says prior that it no notice dollars. Bell contemplated by the franchise property al pres absolutely prior opportunity to pro- completion this street ordinance. After indemnity ent evidence defense of opine that yielded results. ject beneficial claim. indemnity gravamen and thrust Bell, timely encompass fails betterments not clause City, The did contends in- Clearly, not improvements. did judgment regarding any proposed submit actions, negli- its own urging demnify against itself indemnity objected, Bell claims. indemnity The does gences, or indemnity for a later defalcations. court to leave the issue necessary reloca- purposeful envision request was Later time. Bell’s refused. placed itself pro- has entry tions. objections to certain Bell indemnity clause. con- evidence within the judgment lodged. posed final exercising privileges; it was proceeded here was not court to enter sua tends of about discharging to the tune in- its burdens untried sponte award poles $375,000. City used some of Bell amount- demnification fights control. $484,155. traffic and vehicular Bell claims ing large sum to recover City did not its entitlement day in Bell claims show it did not have its court. 85-50 10 of Ordinance apparent patent in view section such is an an act *21 lines, involving lights the use of eight-inch, traffic or other asbestos cement water these systems, being responsible any being placed underground. ample Bell not There is party originally planned whatsoever reason of construction evidence that Bell had or maintenance designed major underground of traffic and other un- wires cables and belonging City. derground along Nor has the relocation of its facilities discharged proof Highland certainly burden of under section Avenue. This was under- 3 of dealing ground Ordinance 85-50 with reimburse- work. Evidence also exists that Bell (that indemnity ments to Bell. speed up These clause is- later decided in order to facilities) given sues are evidentiary to be full place court relocations of its it would hearings if Supreme aerially. Court orders a re- some of these facilities The aerial mand. plans quickly could executed be more to ac- preconstruc- commodate Excavators. The
Underground byWork anticipated underground tion conference work such as storm sewers. The under- Cooper Earl representa- was Excavators’ ground intermingled construction so job tive on the superintеn- acted as the with the other work so as to invoke the “no job. dent for the He was Excavators’ ace delay” clause. witness. We testimony conclude that his acknowledges underground there was performed. construction scope to be Question Damages proved underground work construc- Against Awarded tion performed. be As well as under- In the expert record before us the ground work, a prepared. sub-base had to be Excavators, Schwartzkopf, failed to make Cooper Earl testified: any damages. allocation of He failed to limit Q. thing on, One I quite wasn’t clear damages to water meter and above you get when you’re down here talking ground utilities. opinion, Above we (4) steps about the you have four is figure have set out that the overall testified underground (5), excavate, work and five to, $230,721, being types delay included all (6) prepare six is sub-base and on and on. alleged inefficiency damages suffered You meaning are not you to tell us have to Excavators from all sources. These factors (4) (5) step finish four step before five included factors other than water meters and (5) you’ve got to finish five to do of six Thus, ground above utilities. Excavators’ (6), (7), (8) (9)? eight seven or nine position is unhorsed. The word- No, you to, A. ma’am. Some do have ing question nothing. ten cures The an- not all. ($230,721) grossly swer to ten excessive as Q. got You’ve paving excavate before to water ground meters and above utilities. the street? allegata probata et and the verdict are A. That’s correct. at expert war. The also testified that he Q. But, thing. That’s one could be study conducted no causation to determine doing excavation underground work portion what alleged damages driveway and some sidewalk and work at Bell. time; the same is that correct? oft-repeated damage award was Yes, A. ma’am. by overwhelming shown evidence to have fact, As a matter taking that was garnered been compilation from a of informa- place project. on this provided by tion employees certain Yes, ma’am. agents plaintiff. This information was
Considerable, important prepared compiled storm sewer im- years about two after provements accomplished were to be includ- the law suit had been initiated. The basic ing the building extension of inlet leads and compilation information used for the was not new inlets to the storm accuracy sewers. Water line verified for its or reasonable cer- improvements performed by tainty by were to be Schwartzkopf. re- The amount of six-inch, placing cast iron water lines simply awarded did not *22 lays beginning causal connection or the dam- con- correlation to at Alabama Street and learned, ages against City tinuing scholarly, set the and and Bell. forward. The Bench a conscientious trial instructed verdict Important Miscellanea respect favor of Fittz. and defer- With ruling, conclude, clearly ence this was we trial Bench determined that Ar error. In view of record relevant to .the ticle entitled “Contract Documents” Fittz, delays delays by and caused those contract, ambiguous basic was also in and against and cannot taxed costs be complete because numerous blanks Bell. had form not been filled in—nor it exclu was relevancy. in its and sive thrust The trial Query: Why pay Bell for Fittz’ should scope that Bench concluded of the work actions or inactions whether it included con- part agree. professional a proper engi- was basic contract. than We duct less The trial Bench stated neering that basic contract conduct not? In this record this or ambiguous meaning duty was that the that much to Fittz. is clear. Bell owed no going to contract was be submitted to the Bell had no contract with Fittz. Bell wasn’t However, jury fact-finding a doing any as function. as work or construction that affected analyze charge special questions, slightest degree, we even to the Fittz. There- fore, not this was done. Parol on numer evidence or inactions actions caused points freely delays ous was admitted before the simply committed Fittz could not jury. The trial Bench tended to conclude Fittz be visited Bell. Whether conduct- that said was read in harmony profession- Article 8 to be ed its in a manner to affairs reach delay” not, with the engineering “no for clause and al standards and criteria thereby applicable general, be to the overall a to as would not be defense available Fittz example, construction. Bell. As Bell should not an delays pay to caused Gold Cooper acknowledged Earl Excava- an Company Crest Electric which was ordi- tors’ work had been shut down on certain nary not electrical subcоntractor was acknowledged days because of rain. He also doing professional engineering If work. poles operated by that traffic owned or contractor, simply Fittz had been another City signals control traffic and vehicle charged to Fittz’ could not be Bell. holding up devices were the work. This was point this out at trial the test We because alleged delay City part an on the employed used to instruct a standard Cooper to made was attributable Bell. verdict in favor of Fittz was that evidence of special appeal City expedite to the to - professional engineering stan- violations delayed pro- moving of all obstacles that lacking. dards This was an irrelevant was ject. He referred water meters rights respectfully Bell. test poles owned utilities —more one. than He to Bell differ. The instructed verdict as was acknowledged underground construction error. delayed. had and work and sewer work been concerned vis-á-vis Clearly, delay” pro- the “no Fittz’ clause was delays. Cooper’s applied position engineering to these fessional conduct or standards. delayed major be- perceive was that the had matters But we that the thrust and Cooper's necessity keeping gravamen Earl testi- cause of the traffic the severe mony lights working and traffic control devices in that the was to blame for the motoring regu- delays. public had to be most number of order. accidents, protected per- lated and avoid daily reports From notations in the injuries, including death. Bell had no sonal daily Cooper, diaries of Earl it was dem- any entity duty regard to the traffic underground utilities un- onstrated that
lights. derground construction were involved. record; daily Cooper daily diary personal de- Earl testified that there were lays Shipman. reports caused Fittz & His testi- were the records of Excavators. length inter- Cooper Earl testified at some mony probative was of value issue an gas preting utilities de- the basic contract. He was not that the and electric attorney. clearly He testified the relocation of these utilities had been duty responsibility completed and had the [sic]? *23 to it that see the utilities were out of Excava- A. That’s correct. way. definitely tors’ He felt like it was definitely We determine that there had to be City’s duty obligation provide Excava- typographical question. a error in the It tors awith clear area in which to work. must have been that the relocation of these Cooper scope testified that he considered completed utilities had not been word —the important of the work to be an part of the “not” omitted. contract. He described it as a brief sum- Q. Why you go job on take the if did mary project of the entire and it contained you they completed knew hadn’t the relo- requirements project. of the they cation as indicated? scope provided of the work in rele- During preconstruction meeting vant, controlling part: they they get indicated to us that would project join recently will two con- way way out of our and be out of our for roadway improvement projects. structed the construction. Irving Extension, These are the Street paramount importance ques- Of are these widening Highland Avenue from Cooper “they tions and answers. Earl said U.S. 96 & 287 to Florida Avenue. This promises. indicated”. Indications are not street, project will consist of storm sewer certainly legal promises Indications are improvements, along water line legal reliance can be based. Earl driveways. new sidewalks and The reloca- Cooper overthrew Excavators. telephone, tion electrical and water util- part This crucial of the record makes required ities prior will be to the start of construction, glaringly Cooper, clear that Mr. Earl a stel- added) (emphasis Excavators, lar superin- witness for and the Excavators did not provision; heed this all of and, job, acknowledged tendent on the in- alleged delays resulted from Excavators deed, scope insisted that the of the work was begin immediately. insistence to its work part a of the basic contract and was consid- Cooper acknowledged scope that the of the making ered in Excavators’ bid. His testi- part work was a the contract documents. mony only can be taken to be an admission Cooper insisted that when he and Excavators scope that the un- work dictated and prepared and submitted the bid to the equivocally required telephone, that all the important that one of the documents was the electrical and water utilities had to be com- “Scope document called of Work”. Excava- pletely removed and relocated and that these scope tors had violated the unques- of work completed place prior relocations had to take tionably. to the start of work Excavators. His Then, surprisingly, Cooper Mr. was asked testimony prove and this record that Excava- by his own counsel: prerequisite. tors breached this contractual Q. got questions you I’ve some about Nevertheless, Cooper knew the actual situa- page the first scope of the work jobsite tion at and made allowances provision. get if I Let’s see can to it here. therefor in the bid. paragraph, The third says, last sentence here, Necessarily, digress, we in a telephone, “The relocation of electrical and manner, important point most out we required prior water utilities will be during great stretches of this record that start construction.” Correct? apparently lengthy there were numerous A. That’s correct. concerning conferences at the bench trial inquiry Then comes another basic and evi- evidence, objections procedures including dence of a fundamental breach of the basic exhibits, objections objec- and numerous contract: tions from various counsel. For the most And, April you part, large majority on at when of these conferences preconstruction you conference knew that at the bench were not recorded. We do not only place. knew that the —that know what took the — Cooper espe-
The record that Mr. Earl We conclude that evidence-wise and reflects cially plaintiff Exca- gave days from the evidence of the deposition that lasted to ten nine judgment vators that under the he was stand as live wrongfully cast an adverse have been jury for to four witness before the three Cable, GSU, delays days. him We commend for his candor and Entex, Fittz, and other contractors and sub- patience. sanguinely his conclude that project. Highland Avenue contractors truthfully he testified to a number breach- A few were occasioned es of the basic contract were committed *24 itself. Excavators its own crew to moved by Cooper’s Excavators. We conclude that city Highland another to do work while the testimony along entirety with the the rec- of progress. this project was in We stress that ord, although separate apart and from prof- from crucial evidence comes witnesses Schwartzkopfs testimony, demon- expert very A by important fered Excavators. money jury’s against that the strates award by Sep- phase Cooper’s of is that evidence the and Bell In was erroneous. the 1, 1986, stopped tember Excavators had alternative, money we that the hold award working Highland on the west side of Avenue against great weight preponder- the was and the of and thereafter moved over to east side ance of the evidence to extent that was Highland. Cooper acknowledged after that unjust manifestly clearly wrong. and This 1st, excavating September ruling in of alternative is made the case a Highland. side of the east east On by Supreme ordered remand Court. Highland poles side of were located the of poles GSU. Bell’s were on west side. one, only perceive that there was or equivocation He testified without that there two, perhaps telephone poles standing left single pole belonged was but a to Bell 10th, certainly after October or after October very early part that was in of relocated 20th, Counting period 1986. six-month December 1986. 20th, 1986, April after 18th or had virtu- Bell ally completed poles its relocation of pecuniary Bell interest in the con- had of period anticipated end the six-month and project. certainly tract or in the Bell could completion for the of desired profit. clearly make no record estab- event, expended its work. the one or two Bell the approximate lishes that telephone poles remaining $375,000 after 10th October of its facilities and sum relocate pecuniary or 20th utilities. This lack of interest ex- October could have plodes theory negligent representation of jury in the amount awarded misrepresentation. negligent Bell neces- against Bell. It correct that Excavators sarily expend complete had to monies to necessary prior started to do some work underground of its facilities be- construction However, mid-May in 1986. the substantial location and the of cause of the densities began May efforts on or about of Excavators in area of certain business establishments 22nd, May Counting 20th or 1986. from the High South Park School because May dates, period the six-month wоuld have planted ancient These oaks. oaks been ended about 20th or Novem- on or November high in front which had at one school ber 22nd of 1986. After November date beginnings time of Uni- housed Lamar cogently eompellingly reflects record versity. If aerial had been cables lines only telephone that there was one and one used, very require lines a these would standing. entirety of pole left In view the large cutting trimming amount opinion lengthy it is admit —we —but place. to take these oaks would have justifications length in there are —and changed appearance would have their view calculations con- mathematical beauty reduced their and aesthetic value. $230,721 sequelae cerning the award and its Cooper’s Braxton, review Earl testimo- after a Mr. owner of the stock sole ny, complied Excavators, we conclude that we there under- testified that Co., being per- ground Pool v. Ford S.W.2d 629 work Motor construction and (Tex.1986) through and its formed subcontrac- dicta. agreed delay tors. Braxton that in certain instanc- We must stress that some of the go es Bell days could forward with its work some of the downtime resulted waiting complete because it was original Cable Hurricane Bonnie. This was in the its relocation work. Braxton had claim conceded of Excavators. Hurricane Bonnie was deposition major in his and had stated that storm. We find the record: margin profit project on a like this one Q. Hurricane Bonnie included run percent. would from 20 to 25 We find claim? the record: A. Yes. Q. Okay. As a matter of fact —and when proper Is it for a contractor like Exca- you percent, told us 20 to 25 you said it delay vators & to claim Constructors dam- run high everything could if worked ages against utility company So, properly. pretty that means under a anyone workday else for a on downtime perfect much set of circumstances prevents when the weather it? might anticipate making as much as 20 to No, sir, proper. that’s not percent. right? Is that *25 glaringly This record demonstrates that Yes,
A. ma’am. Excavators knew that it would encounter Q. Okay. perfect And less than circum- delays inevitable and unavoidable since Exca- stances, your which is project, normal prior vators commenced its work to the relo- percent? would be 15 to 20 cation of the utilities and the water meters Yes, A. ma’am. Excavators, and the other facilities. at their project, But on Schwartzkopf this testified to option, necessarily own chose encounter jury and the awarded which would these plan under their of work. increase the amount profit addition, to 40 prepare failed to percent. failed to distribute a schedule of work until August early late or September of 1986. expert A thusly: defendant’s testified contractually Such schedule of work was Q. Now, Okay. this, if I understand Ex- prepared by preconstruc- be the time of the cavators & Constructors’ claim is essential- meeting certainly by May tion of 1986.
ly they could money have made more agree appraisal We do not with the they than bid? testimony relating Jerry of one witness Yes, A. sir. Braxton. The record reflects: Q. they Could money made more Q. they With this schedule that had in they than bid? any mind was there on the side friction They A. money did make they more than Jery between [sic] and Richard Earl bid. they Faust toas this schedule that had Q. they they answer is could and mind? did? no, Jerry A. Ias know Braxton Not — Yes, A. sir. Cooper, and Earl no. Q. they Could have made as much more Q. quote I don’t understand [sic] what money they as want? you you explain? mean. Would they A. I don’t think could have. Braxton, Jerry heart, A. his bless would complain Q. Okay. coming up about the sun in the you What would the —have cal- morning from the east. I don’t mean to be profit culated what the would be—what the that, just Jerry smart about profit percentage but this is would for be Braxton, complain any- and he will about they paid & Constructors if were what thing. I’m they want, probably And sure he request what —the last he— —the complained about me I when wasn’t there. quantifications last —the last of their [sic] claim? certainly approached And we have not Yes, They A. making sir. would be a 46 appeal any review of the record in this percent profit job. on this such idea. of, according to concerning funding lost to the extent one
Another witness testified $17,000,000. Fortunately, report, at a over complaints of Braxton: date, recouped most much later Well, Jerry complain on the Q. when did this The statement of facts loss. Highland project what did he com- Avenue documentary vividly demonstrate evidence plain about? ground utili- relocation of the above utility complained A. He about locations. through the com- ties were to be coordinated complained He He about weather. City and of Fittz bined efforts complained a lоt of— about indemnity hearing a full reason Q. stop me I (Interrupting) Let there. question necessary made inasmuch why be want to sure that does we— additional and different onerous complain about the weather? contractor duty obligations Bell had no duties and while much, They they? don’t do like progress of obligation to coordinate the No, A. sir. engineer, professional A Richard work. talking Q. you’re Is that what about? Faust, gave evidence employed Fittz Yes, sir. Scott, Mr. counsel Ex- when solicited Q. Anything else? cavators: just during pro- the course of the A. He — going to be Gulf there weren’t So that, ject things up are that come there way going up the side States in the west know, obstacles, just, you underground least half of the street or at the first know, things. things, general project, there? *26 defense, damage delay” it the “no for Under A. true. That’s noteworthy president of Excava- that any have criticism or com- Do underground complained tors about obsta- you think plaint about Gulf States? Do question posed by A Excavators’ coun- cles. delayed excavating Gulf or Excava- States posi- Excavators took the sel revealed that project? tors on that six was a reasonable time tion months delayed. A. I I believe Excavators was complete have for Bell to its work. As we as to have no—I can’t make a statement above, virtually pointed out Bell accom- most, least. who did the who did exception very plished this with of a few Q. Okay. presence explained. poles, the of which was record, fact, place at a in the Excavators my dealings I know in with South- work; complete its desired six months to Bell, up if I and asked them western called place it another Excavators stated could at [sic], something they like to I felt do so in 11 to 12 completed its work weeks. pretty responsive. nothing in the basic contract that We see professional engineer swore that: same right complete gives the Excavators eleven, just I general as note “[b]ut under in 11 weeks. Nor does the con- excavations read, have taken that he should [Excavators] require City comply or Bell to tract any problems into in his bid that account cost weeks estimate. a result relocation of came about as however, Bell argued, The record on utilities.” demonstrates in August of have started its work should pole to last Octobеr next record, but, 1985; High- as we read the Underground pulled con- was and removed. put project been on hold land Avenue had opera- underground struction and work money by City. great because of loss tions, involved improvements, and obstacles duty obligation there We decide was integral changes being an numerous —all its nine months before the Bell to start work part These factors of the basic contract. meeting. very preconstruction first delay” implicated the “no clause. that it position the definite was shows that there Braxton took Significantly, the record it that the underground duty utili- to see to involving were obstacles implement removed delay in utilities were ties and that obstacles caused these timely properly. their relocations surface work. the excavation resulting and the damages, part testimony developed confluent of Birchfleld’s any, if we conclude that were related to the by counsel for Excavators. Cable owned no construction, were, turn, underground in so utility poles; poles it rented from GSU or closely intermingled intertwined and with the Bell. Birchfield was not invited to attend surface work that the “no damage delay” preconstruction and did not attend the meet- clause is infused into the contract and the ing; dogmatically he no notice. received He Highland project. Avenue specific As a ex- charged any that Fittz failed to do coordinat- ample clearly evidence, set forth ing relationship of the work in to the Cable underground should be noted construc- company. tion large had to be extended because of a plans Scheduling engineering plans underground sanitary pipe storm or sewer were needed. These matters needed to be made out of concrete that was encountered carefully prepared and furnished to so Cable unexpectedly by Excavators. The same had starting have a Cable could date and not been plat. shown on This obstruc- finishing plans date. These would inform tion was not discovered until it was encoun- Cable as to what and when it should order tered; but it had to be removed order to equipment in materials and order to do its do other work. part of the work. The did not furnish
Charley plans; professional Testimony engineers nor did the Adams’ plans; furnish the nor did Excavators. Ca- Mr. Adams’ sworn statements in the rec- simply proрerly perform ble could not ord are unequivocal. clear and He stated the tasks and duties without these essential ma- City crews had to work on repairs certain concerning splic- terials. Problems arose moving well as the meters and that Excava- ing reconnecting of cables and lines. tors itself had made engaged mistakes and Splicing reconnecting caused the loss of wrong procedures; hence, many signal which in turn DBS loss improperly attempting profit from its picture quality and reduced the retail negligences own wrongful and its own acts. witness, Birchfield, television viewers. This important testimony Adams’ could be dis- further testified that there was no reason *27 further, length cussed but the opinion of this why anybody from Bell should call to Cable prohibits testimony same. His was to the give update Cable an of the status or the underground effect that construction had to progress of the work. put in reasphalting be and installed before work could commence. We conclude that the Undoubtedly, Excavators wanted to make underground construction was so related to $230,000 profit job. an additional on this the other work that the concurrent expert opinion One delivered the that if Ex- resulting therefrom were in- intertwined and $300,000 cavators had bid an additional termixed, triggering the “no for de- job and still had been able to obtain the lay” clause. attempt Excavators made no to contract; then, only then and could Excava- distinguish separate or the tors have made the additional amount of damage. elements of $230,000 asking jury. it was from the expert, Roy, ques- a Mr. was asked this Michael K. Birchfíeld’s Evidence tion: superinten- Birchfield was a construction Q. say Is it a fair statement to make or to dent or foreman. He also acted'as a con- you that if don’t have a schedule that tells supervisor. employee struction He was the City City’s engineer or tells the when main thrust of of Cable. The his evidence you’re going working to be and where on a was that Fittz had never furnished him or his day given time and it be difficult at —would any company plans pro- and that these the relocation of the best to coordinate engineers coordinate fessional had failed to engineer’s utilities to conform to the ex- job. cogent testimony the work on the His pected schedule? certainly Fittz had' raised the issue that I think it could be done. A. don’t Nevertheless, delay damages. Fittz Q. you say impossible? it’s an instructed verdict. And this Would obtained A. Yes. BY MS. OLESEN: Q. City suing Southwestern Jerry
President Braxton and timely failure to Bell in this lawsuit for Absolve they, telephone poles, sir? remove their are Q. Okay. you let me ask this. I And Honor, MR. SCOTT: Your that’s y’all supposedly understand that had the question. action same There’s cross April, schedule back this bar chart. The They’ve pending. sued Southwestern you you give contract told had to Bell. Shipman and Fittz & a schedule. You not for failure OLESEN: It’s MS. precon- asked for schedule at the poles, Your timely telephone remove you meeting give struction it but didn’t Honor. anyone you you any think had didn’t indemnity, It’s for THE COURT: obligation right? to do Is that. objection. I think I’ll still sustain A. It would have been no use. that’s There is a cross action related Q. you any You didn’t think had obli- that. gation to do that? right. All MS. OLESEN: say just I A. I didn’t that. said would BY MS. OLESEN: have been no use. any Q. obligation They didn’t have [Bell] Q. obligation you think Did you, they, did sir? to coordinate relocation of utilities on this ma’am, No, they A. didn’t. [Bell] project? Q. them You didn’t have contract with job. A. That was not our [Bell]? Q. any obligation to You didn’t have do right. A. That’s that? Q. pay to remove [Bell] You didn’t them supposed A. That was to have been done poles? those prior to. No, go
Q. any obligation to A. ma’am. You didn’t have or South- out and talk to folks GSU expense? it at own They do their supposed else Bell. Someone western Yes, A. ma’am. you’re Is that what you. that for do telling us? Jerry Braxton Exonerates taken supposed to have been It was Department superinten- Water of, ma’am. care *28 complaint made dent testified you Q. yet Southwestern And think moving relationship to City against Con- obligation Excavators & to had an Braxton, in the meters. Mr. of the water go do their work and structors out record, swore: your with schedule? accordance complain you didn’t Q. he indicated And A. Not— moving meters his not to him about Q. their cost? And at moving them not enough or his crews fast ma’am, not City, obligation to A. An correct? enough. Is that fast to me. right. A. That’s suing Well, City’s Q. right. All complain? Q. You didn’t are, you? aren’t You them here. [City] didn’t department A. The water Honor, object I Your SCOTT: MR. meters they to move the know that suing is That’s not true. that. they out there. until true, absolutely not here. That’s them you not you or did Q. My point was: Did straight- to be needs I think that and him? complain to out. ened I com- him. complain to I A. did There’s a Sustained. THE COURT: somebody else. plained to action. cross Q. [City superintendent] negligent representation negligent He was there and every day. misrepresentation unless allowed the Su- course, preme Supreme if the Court. Of helped every day, A. And him we too. Court, argument, either with or without di- Q. guy complain And he was the there to the remand be fashioned in a rects meters, to relative to the he? wasn’t mode, Supreme different then the Court or- right. A. That’s course, will, prevail. ders of this interest- fact, your prior As a matter of testi- we, enticing appeal, ing challenging and mony depart- indicated water earnestness, Supreme great invite the prompt in ment was the relocation of their opinion. Court’s of our review meters; isn’t correct? retry only can breach of contract issues right. A. That’s against City provided Supreme Court Q. They they stay tried as best could orders a remand. do not. get ahead those meters out of maybe have and We could should your way? important discussed other matters and the did, They helped sure and we them. evidence of°other docu- witnesses other opinion admittedly long long. is —too evidentiary ments. We feel that these other criticizing person Before the throws the first rightness opinion matters infuse into our stone, let him or her read this record com- judgment. prised heavy of 17 volumes of statement of judgment judg- We reverse the and render facts, transcripts, five volumes and a le- nothing ment that Excavators take gion opinion justified, of exhibits. The is that Excavators take however, in order to dispositive address the from —and nothing Bell. points of error. points Some of these overlapping repeti- error were and somewhat AND RENDERED. REVERSED Also, tious. since we have set aside certain jury findings, necessary it became for us to BURGESS, J., dissents. Co., heed Pool supra. v. Ford Motor Pool BURGESS, Justice, requires detailing dissenting. the evidence.
The district court makes I respectfully dissent. The author of the finding and recites that the defendants Gulf majority opinion correctly High stated in Utilities, Inc., Cable, Liberty States T.V. Youngblood, lands Ins. Co. v. 820 S.W.2d previously Inc. had plaintiff settled with the (Tex.App. de writ —Beaumont Thus, judgment. before the date of that nied): obligated uphold “[W]e are $230,721 figure includes some double dam- jury’s if there verdict evidence of ages. same,” probative yet support value to jury. overturns the unanimous verdict of this language We realize that some of the disagree majority many I with the issues ambigu- franchise ordinance is loose and and, course, disposition. I their ultimate jury finding ous. We also find the crucial will, however, limit this dissent to the more $230,721 be, as an finding, alternative poiiits. salient great weight preponderance *29 clearly wrong evidence so as to be Day Completion The Clause manifestly unjust. 220/240 doing applied In so we accepted the appellate standards of review. day completion period The 220 substantial Supreme If the day completion period Court under their Rules or the 240 final was a merely judgment provision designed 170 and 180 reverses our protect contract the hearing argument simply without re- of Beaumont. It maximum was the court, imposi- mands the case to the district it is our time allowed Excavators the before opinion liquidated damages. majority and our that Excavators tion of Yet the proceed against only can type Bell on the issue of treats it as some of insulation from negligence being damages by delay. and none other. Excavators can- liable for Furthermore, retry promissory estoppel majority nothing not its theories of the states 154 Dil- mony representative, Bell’s to accel- from Scott
the contract authorizes Excavators lard, This is illustrative: project. erate is view- the work wrong ing perspective. the clause you representa- make some Did also nothing prevent contract to There is April meeting concerning at the 17 tions accelerating the work. The work, Excavators from how phases Southwestern’s company penalize a for effi- majority would sequenced? it advantage ciency taking of favor- and even did, yes, I believe I sir. majority The even “Ex- *30 expert amount meeting,” in Excavators’ testified preconstruction Bell at other words, jury was what reasonably damages. asked could not foresee evidence, City of amount of or risk of harm. reliance an- Bell and my majori- and Southwestern judgment, support does Beaumont majority question. Yet the disre- portion testi- swered the ty’s position. following majori- gards jury’s answer because
ty apparently portion Excava- believes parties.
tors’ were caused other jury
That was for the to decide. Their deci- supported
sion is and should evidence Assuming jury’s
stand. answer is incor-
rect, insufficiency factual this is and would remand, only in
result not a rendition. repeat,
To I legal find both a basis for
recovery and sufficient evidence in the record support jury’s findings and the trial judgment.
court’s I would affirm in all re-
spects. FORD, Appellant, Randall
Warren
v. Texas, Appellee.
The STATE of
No. 04-93-00006-CR. Texas, Appeals
Court of
San Antonio. 29,
Dec. 1993.
Rehearing Denied Jan. 1994.
Discretionary Review Refused
May 1994. able weather. notes In facts are identical a case where the almost penalty no or other cavators was assessed ease, Telephone Southwestern untimely typеs damages completion.” for Co., Company v. 574 Meader Construction early “untimely completion” comple- The 839, (Tex.Civ.App. Paso 842-843 S.W.2d —El tion. 1978, n.r.e.), legal duty was writ ref'd jury all the recognized. Here the answered Damages Delay The No for Clause necessary requirements impose fact unambig clear and sup the absence some duty upon Bell. Those answers are provision contrary, uous to the a ported by contractual the evidence. is recover contractor entitled to Promissory Estoppel delay from a for due to contractee losses estoppel is Clearly promissory available if proves hindrance of work work was hindered, Engineering, See Inc. Excavators. Westech delayed damages be or it suffered Constructors, Inc., v. 835 S.W.2d delay Clearwater cause of the or hindrance and writ). 1992, 190, (Tex.App 204 no responsible for the or contractee was acts . —Austin majority acknowledges the Restate delay hin The omissions which caused the or (1981), § of CONTRACTS 90 v. R.F. (Second) drance. Houston Ball Const. ment Co., directly estoppel. Inc., 75, promissory (Tex.Civ.App.— deals with 570 S.W.2d 77 n.r.e.); 1978, of the Restatement has been This section Dist.] Houston writ ref'd [14th Inc., Shintech, Constructors, See State adopted Texas courts. First Group v. Inc. Co., 687 144, Bank in Archer v. Schwarz (Tex.App. 688 148 S.W.2d —Houston 453, 1985, writ). 1985, (Tex.App. writ majority The S.W.2d no [14th Dist.] — Dallas n.r.e.), Traco, Inc. v. Arrow Glass delay” ref'd holds “no clause Co., Inc., (Tex.App.— 814 S.W.2d applied this contract to the entire contract denied). majori San Antonio writ The just underground construction law, finds, ty no clause, as matter of there were provisions. as noted promises representations made South majority, is item 600.07 of the contract. This finding is in con western Bell. This direct begins is a of item subset findings. again, jury’s to the Once tradiction specifications underground construction. support jury’s find any delay there is evidence to did not nor dam claim ings and this court should substitute ages underground con connected jury. judgment for that of the Excavators’ claims involved struction. roadway. This excavating paving Negligent Misrepresentation inapplicable controversy. clause Obviously falls this cause of action rises or Duty Bell’s Southwestern misrepresentations by upon issue found; jury so Southwestern Bell. majority represen- holds Bell made majority disregards. tations and could not antici- to Excavators rely pate “the would Damages timing utterances made sequencing