*1 41 establish deposition testimony the of the tion by paving remainder problem” Nevertheless, the injuries from con- Warren their resulted alley gravel. with Therefore, they he O’Reilly patrons. testified that remains dissatisfied duct City against he the alley the because wants claim prevail on nuisance cannot remaining ten or twelve feet of pave require the City City’s the failure to the due to adjacent garage the to his with con- alley O’Reillyto erect fence. crete. reasons, that the we conclude For these Regarding drop-off garage the at the City’s by sustaining court erred trial entrance, that he still Warren testified Cozbys’ as to the plea jurisdiction to the notwithstanding the garage, cannot use claim. nuisance provide a gravel City added sustaining affirm the court’s order We the gravel He testified that
transition. City’s jurisdiction to the plea irregular drop. drop “an Parts provides Act. Cozbys’ under the Tort Claims claims fast, parts slope.” He believes slow— Cozbys’ as to the reverse the order We “irregular drop” poses a risk of dam- claims inverse condemnation and nuisance park he age attempts vehicle portion of and remand that this cause perceived restriction on garage. This proceedings for further con- the trial court Cozbys’ garage appears access to opinion. with this sistent to be inherent the nature of eleva- tion difference which exists between
alley garage. temporary caused re
The fence Cozbys’ property. striction of access record, appears From it “mu- City dhole” the created when tried drop-off ameliorate the likewise a tem was STONE FROST CRUSHED Nevertheless, porary condition. even COMPANY, INC., give temporary nuisance can rise to com- Appellant, damages. Bayouth pensable v. Lion Oil Co., 867, Loyd Inc., Resources, 110, v. ECO ODELL GEER CONSTRUCTION (Tex.App.-Houston [14th Disk] CO., Appellee. INC., pet.).
However, Cozbys prevail cannot on a No. 10-00-282-CV. theory allegation re- nuisance for their Texas, Appeals garding City’s require failure Waco. O’Reilly “injuries” to erect a fence. The they claim to sustained as a result of have Dec. failure O’Reilly’s to erect a fence are “inherent” the absence of a fence. See Auth., v. San River
Wickham Jacinto (Tex.App.-Beaumont 133; denied); pet. Loyd, 956 S.W.2d at Corp. Compton, Hoechst Celanese (TexApp.-Houston [14th writ). Rather, peti- their Dist.] *3 Waco, Studensky, Reed Jack-
James E. son, Fairfield, appellant. for Erskine, Twombly, F. Blake C. James Firm, Austin, appellee. Onstad Law DAVIS, Justice Justice Before Chief VANCE, and Justice GRAY.
OPINION DAVIS, Justice.
REX D. Chief Company Odell Geer Construction (“Geer”) Frost Crushed Stone Com- sued (“Frost”) of breach of pany under theories contract, negligent misrepresentation, trial, Geer promissory estoppel. Before except on all claims non-suited Frost jury tri- estoppel. Following al, judgment in favor of the court entered jury damages awarded actual Geer. The $40,000 attorney’s fees. plus amount of 1) there is no evidence argues sup- factually insufficient promis- port the reliance element of Geer’s 2) claim; there is no evi- sory estoppel factually insufficient evidence dence and defense the statute of frauds overcome 3) Frost; by the statute established recovery prom- Frost’s oral frauds bars 4) law; the trial ise as a matter of submitting question of lost erred in 5) the trial court jury; profits to recover attor- permitting erred in ney contingent per- (Tex.App.-El fees based on a fee 837 S.W.2d 781-82 Paso centage. requisites writ (1) Texas are: Background (2) promise; foreseeability of reliance (3) promisor; thereon substan 12, 1995, On October Geer submitted a promisee tial reliance to his detri (as subcontractor) bid to Ellis McGinnis Fischer, English ment. See (“Ellis”), Company gen- Construction Bailey, 972 S.W.2d at contractor, produce eral and haul “flex 193; Vista, Holt, Allied project. a highway base” rock for *4 138, 141 (Tex.App.-Houston [14th Dist.] to rock supply contends Frost offered 1999, pet. project telephone in a to Geer for the 30, 1995, conversation. On October Geer Antonio San Court has held that Trucking Company sent a letter to Texas promissory estoppel is a viable cause of (“TTC”) offering to haul to contract action in bid construction The court cases. rock, “flex conditioned upon base” Geer’s held:
receipt of a contract from Ellis. Geer most, all, As true in bid con- asserts that it relied promise on Frost’s cases, present struction situation furnish the rock when it contracted with Therefore, does not involve a contract. haul subsequently TTC to the rock. Ellis promissory estop- were we to hold that 2, accepted Geer’s bid on November pel does not exist in bid construction bid, After accepted pro- Ellis Geer’s Frost cases, that, necessarily this would mean price vided a written for the rock. quote notwithstanding any language or con- signed hauling TTC contract with Geer duct the subcontractor which leads 9, 1995, transport November general contractor to do that which later, rock. months Frost notified Several and, he would not otherwise have done supply that it be Geer unable injury, incur or thereby, general loss rock as previously promised. would be denied all contractor relief. proposition This is untenable and con-
Promissory Estoppel underlying premise flicts with the promissory Accordingly, estoppel. we Although promissory estoppel is promissory estoppel find that is viable normally theory, it is an avail defensive cause of action in bid cases. construction promisee able cause of action to a who relied to detriment on an his otherwise Traco, Co., Inc., Inc. v. Arrow Glass 814 promise. unenforceable See Wheeler v. 186, 189 Antonio (Tex.App.-San S.W.2d White, 93, denied) (citations 398 S.W.2d 96-97 1991, omitted); writ see Reyna Edinburg, v. First Nat’l Bank 55 Marine, Sipco Wyatt also Sens. 58, 4 (Tex.App.-Corpus (Tex. S.W.3d 70 n. Co., 602, Field 857 S.W.2d 605 Sen. 2001, Brighton v. pet.); writ) Christi no Bodies 1993, no App.-Houston [1st Dist.] (Tex. Builders, Inc., 159, 29 S.W.3d 166 (permitting recovery promissory estop- 2000, pet.); App.-Houston [14th Dist.] pel plaintiff where relied on subcontrac Austin, 180, 972 Bailey City v. S.W.2d job). promise painting tor’s to do 1998, denied); (Tex.App.-Austin pet. 193 Reliance Communications, Inc. v. Skin Cherokee Inc., 313, A ny’s, (Tex.App. central element of 893 S.W.2d denied); detrimental reliance. See Gil -Eastland writ Henderson v. IS, Bank-Midland, N.A, Texas martin v. KVTV-Channel Commerce conclu people in their (Tex.App.-San Antonio fair-minded differ ” (quoting Burroughs Id. Wellcome Pharmacy sions.’ (citing Collins v. Allied pet.) (Tex. Crye, 907 Inc., Co. Mgt, (Tex.App.- 1995)). writ)). 1994, no Reli [14th Dist.] Houston promise on the be reasonable
ance must Frost Rey Whitener testified justified. Id. American Tobacco (citing rock promise furnish the made an oral Grinnell, (Tex. Co. In contracted with TTC. before Geer 605). 1997); Sipco, 857 S.W.2d at own, its hauling stead of rock on one, Frost that there haul the contends to contract TTC to decided and factually is no evidence insufficient furnished Frost. The written rock prior to confirm oral quote evidence the reliance element served Frost’s Considering only promise Geer’s claim. Geer. sup tend to contends that shows that evidence inferences which port disregarding rely on the contested issue and promises did not Frost’s be- 1) contrary, *5 all evidence inferences to figures Geer did not Frost’s cause: use 2) than Ellis; we hold that the record contains more submitting in its bid to of evidence that Geer detrimen quote scintilla Frost’s written came after Geer had fur tally promise relied on oral Frost’s argues, contracted with TTC. howev- Geer 711; Havner, at er, nish the rock. 953 S.W.2d detrimentally that it Frost’s relied on Beard, at 49 S.W.3d 55. promise contracting oral with TTC to haul the rock. Factual Sufficiency
No Evidence sufficiency challenge A factual re all the quires weigh us to consider and claim, review a When we no evidence we evidence, just sup not which the evidence only the consider evidence and inferences ports the verdict. See Maritime Overseas which tend to the contested issue Ellis, 406-07 Corp. all disregard evidence and inferences (Tex.1998) (citations omitted). set We will contrary. to the Merrell Dow See only contrary to the verdict if it is so aside Pharms., Havner, overwhelming weight evidence Beard, Beard v. clearly unjust. Id. We wrong as to be (Tex.App.-Waco 2001, pet. upon credibili may pass the witnesses’ (a) such point We will sustain if: there is our for that of ty judgment or substitute complete absence of a vital evidence of clearly if the jury, even evidence (b) fact; we are barred rules of law or Viewing all support a different result. Id. giving only evidence from to the weight sufficiency for a chal the evidence factual (c) fact; prove evidence offered to a vital lenge, agree we with Frost’s contention offered fact is prove the evidence a vital rely that did not on the information (d) scintilla; than a mere no more or submitting from Frost when a bid conclusively oppo evidence establishes (Ellis). The is general proper contractor (citing site of the vital fact. Robert W. Id. sue, however, is contract whether Geer’s Calvert, “No Evidence” and “Insufficient made in on Frost’s with TTC was reliance Error, Points Evidence” Tex. L.Rev. to furnish the rock. promises (I960)). than a scintilla 362-63 “More Whitener, and Chief sup Rey of evidence exists when the evidence Vice-President whole, Geer, Ray finding, ‘rises to a that porting as a Estimator testified that would reasonable and of Frost called him in October level enable Fleet price and submitted a for furnishing price quote the written from Frost confirms rock project. on the Whitener that stated testimony of Whitener regarding initial phone conversation occurred be- Thus, promise. Fleet’s earlier we find the fore Geer was awarded the Ellis contract. factually evidence justify sufficient to offered contract with TTC to haul finding that Geer relied on Frost’s oral the rock furnished Frost in a letter promise to its detriment contracting dated October re- Whitener to haul TTC the rock. ceived price quote Frost’s written confirm- Accordingly, point one is overruled.
ing
prior
conversation
November
Frost,
1995. Whitener called
and Fleet
Statute of Frauds as a Defense
quote
confirmed the written
to furnish the
two,
In argues
Frost
that
rock.
there is no evidence
factually
insuffi
testified, however,
Fleet
the first
cient
overcome the statute of
time he had any contact with Geer
inwas
frauds defense it
Specifically,
asserted.
December
after Geer had contracted
Frost asserts that
there is no evidence
with TTC.
promised
sign
that it
agree
written
President,
Frost,
Frost
Marcus
testified
misrepresented
ment or
that the statute of
price
Frost sent a
quote directly to frauds had been satisfied.
5, 1995,
Ellis on October
with knowledge
three,
In point
argues
that Geer was the subcontractor. He con-
submitting
trial court erred in
a jury ques-
*6
firmed that Frost
later sent a written
tion
promissory estoppel theory
on a
of
quote to Geer.
recovery
promise
because the
is unenforce-
Viewing
record,
all the evidence in the
able
a
as matter
law under the statute
we do not find the verdict to be so con-
Specifically,
of frauds.
urges
Frost
trary
overwhelming weight
to the
of the Geer’s claims are unenforceable because
clearly wrong
unjust.
evidence as to be
writing
satisfy
necessary
no
exists to
the
Whitener testified that
an
Fleet made
oral
contractual elements of price, quantity,
in
promise
October to furnish the rock.
delivery.
and time of
While Fleet testified that his first contact
promis
This is not
case where
December,
in
jury
Geer came
the
was
sory
estoppel was asserted as
counter-
free to believe
testimony.
Whitener’s
See
Here,
Co.,
defense to the statute of frauds.1
427,
Lance v.
as
USAA Ins.
934 S.W.2d
writ) (the
Traco,
in
sought
429
Geer
affirmative relief
(Tex.App.-Waco
equitable
under the
doctrine
jury
is free to
believe or disbelieve
witness,
premise
on
that it
regardless of whether
the wit-
based
the
det
controverted).
testimony
rimentally
ness’s
on
oral
is later
relied
Frost’s
bid. See
Traco,
Frost offered no other
814
at
Frost’s
evidence to contro-
S.W.2d
188.
statute
Further,
testimony.
arguments ignore
vert Whitener’s
of frauds
Geer’s basic
cases, promissory estoppel
promise.
(citing Nagle
1. In some
is used
forceable oral
Id.
v.
(Tex.1982);
plea.
Nagle,
as a counter-defensive
See Sonnichsen
633 S.W.2d
800
Baylor
(Tex.
937).
University,
Burger,
v.
"Moore”
492 S.W.2d at
To
App.-Waco
pet.) (citing
“Moore”
avoid the statute of
defense
frauds
con
Co.,
tract,
Burger,
Phillips
promissory estoppel exception
Petroleum
set
(Tex.1972)).
Burger applies
S.W.2d
In those cir
forth in "Moore”
when the
cumstances, promissory estoppel may
promises
agreement
party
sign
be used
a written
application
complies
to bar the
of the statute of frauds
which itself
with the statute of
126; Nagle,
and allow enforcement of an otherwise unen
frauds. Id. at
ten Attorney’s Fees only action because it is further evidence Accordingly, promise. of Frost’s oral 1) five, argues In point number Frost points two and three are overruled. in charging the the trial court erred attor- “Jury Question in No. 3” on jury Damages 2) fees; there is no evidence ney’s four, argues In Frost the trial attorney’s fees award based support awarding profits erred in lost contingency percentage. fee bargain damages. or benefit of the
alternative, Object Failure Frost contends that there is no factually insufficient evidence First, will whether we address damages award. properly preserved any complaint charge error. The record regarding Damages recoverable in a case “Jury object that Frost did not shows profits are not the Question preserve To No. 3.” error promisee expected, only that the but must the trial jury charge, party make to restore him to the necessary amount timely and complaint, court aware of the position in he would had which have been a ruling. and obtain See State plainly, not relied on Fretz promise. he See v. Highways Transp. & Public Dep’t Bank, Nat. Const. Co. Southern (Tex.1992). 235, 241 Payne, 838 S.W.2d (Tex.1981); Holt, 987 made Objections must be before case, Thus, present at in the charge jury. read Missouri See damages necessary are the amount Cross, 868, 873 Pac. R.R. Co. v. place position which would Rescue-Nat’l Operation have been not for reliance on Frost’s Houston, 937 *7 Planned Parenthood of promise. The that evidence established (Tex.App.-Houston [14th transported could have furnished and Geer 1996), modified, as Dist.] aff'd per rock itself the ton. Geer $5.50 (Tex.1998). By objecting ques to produce to chose not and haul the rock Frost waived error tion has to promised itself when Frost furnish the question. of the regard submission promise rock. Geer relied on Frost’s contracting with to haul the rock TTC “No Reasonable Evidence” of Ultimately, from Frost’s site. was Fees Attorney’s ton, pay per instead of forced TTC $6.59 Next, ton, per haul the rock we address whether Geer from Geer’s $5.50 a scintilla of evidence following per presented own site Frost’s refusal to more than attorney’s This the fees award. support jury’s form. created a difference of $1.09 Per place posi in its cites Arthur Andersen & Co. v. per original ton Equip. Corp. proposition for the ry tion. The evidence shows that Geer need 40,000 contingent agreement tons rock for of a fee approximately ed of thus, an award damages and the is not sufficient project, the reliance alone $40,000. attorney’s of 817-18 approximate This calculation fees. action, (Tex.1997). DTPA is not lost Ac In that cause of damages profits. based on plain “the Supreme evi found that cordingly, we hold that there is some the Court simply jury ask the to award factually and sufficient evidence tiff cannot dence recovery attorney’s of the a fee be- percentage Accordingly, as fees award. without cause evidence of the factors iden- five overruled. 1.04, in Disciplinary jury
tified
Rule
judgment
The
is affirmed.
meaningful way
has no
if the
to determine
were in fact
fees
reasonable
neces-
dissenting.
GRAY
Justice
Id. at
sary.”
818. The
Court
Supreme
GRAY, Justice, dissenting.
TOM
listed several factors that a fact-finder
majority
legislate
The
has chosen to
determining
should consider when
the rea-
from
bench
cause
and create a new
fee, including:
sonableness of a
previously recognized by
action not
(1) the time and
required,
labor
the nov-
court;
Supreme Court or
Texas
this
questions
elty
difficulty of the
in-
words,
other
majority has created
volved, and
required
perform
the skill
The DNA
to cre-
allegedly
monster.
used
legal
properly;
service
originated
ate
monster
in reference
Supreme
from the Texas
and was
(2)
accep-
the likelihood ...
given
breath
a few of our
courts
sister
particular
tance of the
will
employment
of appeals.
preclude
other employment
the law-
yer;
I
kill it. I
kill
This
would
it now.
newly created monster
a slow
has had
(3)
charged
the fee
customarily
start;
live,
grow
but
allowed to
it will
services;
locality for similar legal
many
until it kills
action.
other causes of
(4) the amount
involved and
results
negligent
action
Causes of
like fraud and
obtained;
will
and be-
misrepresentation
be weaker
unnecessary.
chooses
majority
come
(5) the time
imposed by
limitations
to let it live. The issue and the monster:
circumstances;
byor
client
standing
as a free
(6) the nature
length
profes-
of the
cause of action.
client;
relationship
sional
with the
conducted,
From
research I
have
(7) the experience,
reputation,
abili-
appears
only
one Texas intermediate
lawyer
ty
lawyers performing
or
appellate
recognized
has
this same
services; and
still
issue and
created
new cause
remaining
action. The
that have
courts
(8) whether the fee is fixed or contin-
*8
the issue have
so with
addressed
done
gent on results
uncertainty
obtained or
language”
thorough
“loose
and without
legal
of collection before
services
the
analysis.
majority
The
of this
fails
Court
have been rendered.
analyze
properly
the
which it
cases on
Id.
relies.
presented
the
evidence of
custom-
promissory
The
of whether
es-
confusion
ary attorney’s fees for
of case in
type
this
toppel
be the
a cause of
could
sole basis of
County, Texas.
submitted
Falls
Geer also
Supreme
action started with the Texas
spent
the amount of hours
opinion in
Court’s
v. White.
Wheeler
(Tex.
present-
White,
for trial.
preparing
Finally, Wheeler
statement
Id. at 193.
In
on
Cherokee.
most recent case relied
majority
opinion
Corpus
court
is another
from
Bailey,
summary
affirmed the
Reyna
Christi.
v. First Nat. Bank in
See
judgment
appellant’s
on the
breach of con-
Edinburg,
(Tex.App.-Corpus
time to detail and further discuss Texas cases have dealt and other But, majority of this because issue. Texas, Appellee. The STATE already reached its decision and Court has to 10-01-418-CR. Nos. 10-01-409-CR to clear pressures because of the time dockets, off the I am limited to this cases Texas, Appeals analysis abbreviated and discussion. Waco. there is no need to simply conclusion 11, 2002. Dec. Promissory create a new cause of action. equitable has an reme- place as fails dy when some other cause of action of one of equity protection demands be parties. equity only But should legal when remedies fail for
last resort believe, I on the re- some reason. based conducted, presents this case search unique distinguish be- very opportunity promissory estop- proper tween the role as pel remedy as a limited rather than standing In this in- free cause of action. stance, all claims Geer dismissed its pursued only
legal promisso- remedies ry majority has estoppel. relief the exactly the same
delivered Geer proven would have recovered it had But breach of contract. dismissed it Why that claim. should be allowed the remedy equitable same relief under an legal remedy? chose to seek as a herein, I For the re- expressed reasons spectfully dissent. (Tex.App.-Houston [1st promissory estoppel. Sipco theory other than Co., writ). Marine, Wyatt Dist.] Inc. Field Serv.
Servs.