Bowles Construction Company v. Vernon Bridwell D/B/A Tri-State Mechanical ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Bowles Construction Company

Appellant

Vs.                   No. 11-02-00079-CV -- Appeal from Comanche County

Vernon Bridwell d/b/a Tri-State Mechanical

Appellee

This is an appeal from a judgment in favor of Vernon Bridwell d/b/a Tri-State Mechanical in a pipeline construction case.  A jury awarded damages under a theory of quantum meruit.  The jury also awarded attorney=s fees.  Because we find that the evidence was factually and legally sufficient to support the awards, we affirm. 

Upper Leon River Municipal Water District (Water District) awarded Bowles Construction Company a 1.6 million dollar contract which, among other things, provided for the construction of a 15-mile pipeline from Comanche into De Leon.  Vernon Bridwell, owner of Tri-State Mechanical, contacted Bowles Construction Company and indicated an interest in performing the pipeline part of the project. The parties met in Houston to discuss the job and to determine whether Bridwell could do the work.  Later, R. E. (Potter) Bowles, Bridwell, and Bridwell=s superintendent met in Comanche to discuss a contract for the pipeline project.  The three drove to the job site from Comanche to De Leon looking at the area where the pipeline would be laid.  During this time, the three discussed the type of sub-surface to be dug. The surface appeared to be sandy peanut farms.  The Water District had drilled test holes along the pipeline right-of-way, and the bore logs showed no rock in the area.  The three agreed that a contractor could dig about 1,000 feet a day.  After driving the route and discussing the bore logs and the project, Bowles Construction Company and Bridwell entered into an oral contract for $2.90 per lineal foot. Bridwell=s crew began work in November 1996.  Shortly after beginning digging, the crew ran into rock.  Bridwell=s crew did not have the proper equipment to dig in rock.  Both Bridwell and Bowles testified that Bridwell informed Bowles Construction Company of the rock problem.  At Bowles Construction Company=s direction, Bridwell then moved to another location on the pipeline project, and the digging went fairly easily into Comanche. The crew then returned to where it first encountered rock but could not dig the rock with the equipment they had. Bridwell testified that he spoke with Bowles and again told him of the problem.  Bridwell testified that Bowles told him to get rock equipment to dig the rock and that they would settle up at the end of the job.  Bowles denied making such a statement to Bridwell.

Bridwell finished the job in November 1997.  The superintendent for Bridwell testified that Bridwell dug about 17,038 lineal feet of rock.  An estimator for Bridwell testified that $10 per lineal foot is a reasonable charge for digging rock.  By their answer, the jury found that Bowles Construction Company had knowledge that Bridwell had expended extra labor and expected to be paid for that labor. The jury also found that Bowles Construction Company committed no fraud.  The jury awarded Bridwell $70,266 as damages under a quantum meruit theory.  The jury also awarded attorney=s fees to Bridwell.  

In its first point of error, Bowles Construction Company argues that, because there was an express contract between the parties that covered all work necessary to complete the job and because the jury found that there was no fraud on the part of Bowles Construction Company, Bridwell cannot recover under quantum meruit. 

A party cannot recover under quantum meruit if the subject matter is covered by an express contract unless there is a finding of fraud.  Truly v. Austin, 744 S.W.2d 934 (Tex.1988).  If there is no contract or if there is a contract and fraud exists, a party may recover under the theory of quantum meruit if it is shown that valuable services were rendered or materials furnished for the person sought to be charged; that the services and materials were accepted by the person sought to be charged and were used and enjoyed by him; and that the circumstances reasonably notified the person sought to be charged that the claimant in performing such services was expecting to be paid by the person sought to be charged. Vortt Exploration Company, Inc. v. Chevron U.S.A. Inc., 787 S.W.2d 942 (Tex.1990).

In reviewing a legal insufficiency claim, the court must consider only the evidence and inferences supporting the judgment and disregard all the evidence and inferences to the contrary.  Leitch v. Hornsby, 935 S.W.2d 114 (Tex.1996). A legal sufficiency point will be sustained when:  (a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of a vital fact.  Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. den=d, 523 U.S. 1119 (1998).  A legal insufficiency challenge must be overruled if the record contains any evidence of probative force to sustain the finding. Leitch v. Hornsby, supra.  When reviewing a factual insufficiency challenge, the court must consider, weigh, and examine all of the evidence which supports or undermines the jury's finding.  Plas‑Tex, Inc. v. U.S. Steel Corporation, 772 S.W.2d 442, 445 (Tex.1989).  It is the jury's role to judge the credibility of the evidence, to assign the weight to be given to testimony, and to resolve inconsistencies within or conflicts among the witnesses= testimony.  Corpus Christi Area Teachers Credit Union v. Hernandez, 814 S.W.2d 195, 197 (Tex.App. ‑ San Antonio 1991, no writ).  The verdict will be set aside only if the evidence, standing alone, is too weak to support the finding or if the finding is so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong.  Cain v. Bain, 709 S.W.2d 175 (Tex.1986).

The jury found that Bowles Construction Company committed no fraud and awarded damages based on the finding that there was not an express contract.  Bowles Construction Company argues that the subject matter of the oral agreement entered into by the parties was the laying of a pipeline regardless of whether in dirt or rock.  Further, it argues that digging rock was necessary for the completion of that contract.  We disagree.  In determining the existence and contents of an oral contract, the court looks to the communications between the parties and to the acts and circumstances surrounding those communications.  Wiley v. Bertelsen, 770 S.W.2d 878, 882 (Tex.App. ‑ Texarkana 1989, no writ).  The testimony concerning the communications and circumstances existing at the time the oral contract was entered supports a finding that the contract related to dirt only.  Before entering into the agreement, the parties discussed the surface to be dug.  The bore logs had shown no rock in the area.  The surface appeared to be only dirt.  The contract price of $2.90 per lineal foot was a reasonable contract price for digging dirt.  Therefore, having reviewed the record, we conclude that there was sufficient evidence for the jury to find that there was an agreement to dig dirt only and that there was not an express contract for digging rock.  Therefore, an award under quantum meruit was proper even without a finding of fraud.  Bowles Construction Company=s first point of error is overruled.

In its second point, Bowles Construction Company argues that there was insufficient evidence to find that it knew that Bridwell expected to be paid extra for digging rock.  There is testimony in the record which shows that Bridwell told Bowles Construction Company about the presence of rock.  There is also testimony that  Bowles Construction Company represented to Bridwell on the phone and in person that Bowles Construction Company would pay for the extra expense of digging rock.  Determining the credibility of the evidence and the weight to be given to it is within the sole province of the jury that had the opportunity to observe the witnesses= demeanor on the stand; and, if sufficient evidence exists to support the jury=s findings, they will not be disregarded.  In re Barr, 13 S.W.3d 525 (Tex.1998).  Having reviewed the evidence, we conclude that the evidence sufficiently supports the jury=s finding that Bowles Construction Company had notice that Bridwell expected to be paid for the extra work of digging rock.  Bowles Construction Company=s second point of error is overruled.

            In Bowles Construction Company=s third point of error, it argues that the trial court erred because the proper measure of damages was not included in the charge and because there was not sufficient evidence to support the award of damages to Bridwell.  A judge has broad discretion in submitting issues in the jury charge.  Pic Realty Corporation v. Southfield Farms, Inc., 832 S.W.2d 610 (Tex.App. - Corpus Christi 1992, no writ).  Error in the jury charge is reversible only if, in light of the entire record, it probably caused the rendition of an improper judgment. TEX.R.APP.P. 44.1(a)(1).  The proper measure of damages in quantum meruit is the reasonable value of the services rendered and materials furnished by the complaining party.  Pic Realty Corporation v. Southfield Farms, Inc., supra.

The jury charge in this case read:  AWhat is the reasonable value of such compensable work at the time and place of performance?@ Bowles Construction Company objected at trial that this was not the proper measure of damages.  However, we find that, even if the issue was not the proper measure of damages, it was so close to the proper measure of damages that it could not have caused the rendition of an improper verdict. 

In addition, Bowles Construction Company argues that there was insufficient evidence regarding the damages.  We disagree.  Bridwell=s estimator testified to the formula used to calculate the expenses incurred by Bridwell for digging rock.  There was uncontroverted testimony at trial that the cost of digging in rock was $10 per lineal foot.  Also, there was uncontroverted testimony at trial that Bridwell dug through 17,038 feet of rock.  There was not another formula offered into evidence on how to calculate the value of the services rendered by Bridwell.  The record supports the jury finding of $70,266 as the reasonable value of the work done under a theory of quantum meruit.  Bowles Construction Company=s third point of error is overruled.

In the fourth point of error, Bowles Construction Company challenges the award of attorney=s fees as improper because Bridwell did not present its claim at least 30 days prior to filing suit.  The general attorney=s fees statute provides that a litigant who establishes a valid claim may recover reasonable attorney=s fees in addition to the amount of the claim.  TEX. CIV. PRAC. & REM. CODE ANN. ' 38.001 (Vernon 1997).  A party must follow the procedure set out in TEX. CIV. PRAC. & REM. CODE ANN. ' 38.002 (Vernon 1997).  The party must be represented by an attorney. The party must present a claim to the opposing party, and payment for the just amount owed must not be tendered before the expiration of the 30th day after the claim is presented.  Section 38.002.  Various forms of presentment, including both oral and written demands, have been held to be sufficient to support an award of attorney=s fees.  Jones v. Kelley, 614 S.W.2d 95 (Tex.1981).  The purpose of the requirement for presentment of a claim is to allow the person against whom a claim is asserted an opportunity to pay a claim without incurring an obligation for attorney=s fees.  One does not need to present its claim before filing suit. Shearer v. Allied Live Oak Bank, 758 S.W.2d 940 (Tex.App. - Corpus Christi 1988, writ den=d); Mackey v. Mackey, 721 S.W.2d 575 (Tex.App. - Corpus Christi 1986, no writ); Western Casualty and Surety Company v. Preis, 695 S.W.2d 579, 589 (Tex.App. - Corpus Christi 1985, writ ref=d n.r.e.).  The statute further provides that it is to Abe liberally construed to promote its underlying purposes.@  TEX. CIV. PRAC. & REM. CODE ANN. ' 38.005 (Vernon 1997). 

Here, the record shows that Bridwell requested payment for the extra services on the phone twice.  Bridwell talked to Bowles Construction Company=s assistant.  Bowles Construction Company received an invoice from Bridwell showing the amount owed on the dirt contract.  Invoices constitute sufficient demand for payment on a claim for services rendered, labor done, and material furnished.  De Los Santos v. Southwest Texas Methodist Hospital, 802 S.W.2d 749 (Tex.App. - San Antonio 1990, no writ); Roylex, Inc. v. Avco Community Developers, Inc., 559 S.W.2d 833 (Tex.Civ.App. - Houston [14th Dist.] 1977, no writ).  Also, Bridwell made a formal written demand to Bowles Construction Company on August 27, 2001. These communications represent sufficient presentment of Bridwell=s claim. The fourth point of error is overruled.

The judgment of the trial court is affirmed.

                                                                                                JIM R. WRIGHT

 JUSTICE

November 7, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.