Brock Independent School District v. Tony Briones D/B/A West Texas Concrete and Metal Buildings, Samuel Trevino D/B/A Sam's Construction

Citation: Not availableDocket: 02-07-00002-CV

Court: Court of Appeals of Texas; March 13, 2008; Texas; State Appellate Court

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Brock Independent School District (BISD) initiated legal action against Tony Briones d/b/a West Texas Concrete and Metal Buildings and Samuel Trevino d/b/a Sam’s Construction for damages related to the installation of a roof as part of a school construction project. A jury awarded BISD $519,771. BISD raised five issues on appeal, claiming the trial court improperly submitted two jury instructions, that the jury's findings on negligence apportionment and contract compliance were against the evidence's weight, and that the evidence did not sufficiently support the jury's damages award. The factual background indicates that BISD sought to construct a new elementary and middle school in late 2001, hiring D.S.A. Inc. as a construction manager and Stuckey Architects, Inc. as the architect. After awarding contracts to various subcontractors, Briones was contracted in March 2002 to handle specific aspects of the project, including the roof installation. Briones subcontracted part of the work to Trevino, who began construction in mid-2002. The project specified the installation of a standing seam metal roof, requiring a warranty from RollCOM for weathertightness, which was not obtained until after the contract with Briones was signed. Issues arose when Trevino's crew, following erroneous installation instructions from job superintendent Tom Weaver, deviated from the correct installation method. By Spring 2003, problems with the roof led to RollCOM's refusal to issue the warranty due to non-compliance with its specifications. The appellate court affirmed the trial court's decisions.

RollCOM's second inspection of the roof revealed ongoing installation errors. BISD hired Exterior Consulting Innovations, Inc. (ECI) for an independent assessment, which identified 115 leaks and stated that the roof was improperly installed, deviating from both specifications and manufacturer instructions. Sandefur admitted that the installation plans provided to contractors lacked RollCOM's instructions, and Frank Trevino noted that his crew's "shop drawings" were less detailed than the RollCOM manual, which he reviewed only shortly before his trial testimony. DSA allowed Briones an opportunity to fix the roof defects, but he failed, leading BISD to declare Briones in breach of contract in March 2004 and terminate his rights to complete the project. ECI concluded that the roof was irreparable, necessitating a new installation. Stuckey also indicated that either a new roof or an overlay was required to address the issues. BISD subsequently sued Briones and Trevino for breach of contract, breach of warranty, violations of the Deceptive Trade Practices Act (DTPA), and negligence. In turn, Briones and Trevino sued DSA, but the trial court granted summary judgment in favor of DSA on those claims. During the trial, the court instructed the jury to attribute DSA's actions to BISD. The jury found that BISD was 85% negligent, Briones 10%, and Trevino 5%. The jury ruled "No" on the DTPA question and on whether Briones breached his contract, but affirmed that Briones violated a warranty, awarding BISD $519,771 in damages. BISD’s motion for a new trial was denied, prompting an appeal. BISD contended that the damages award lacked evidentiary support and that the jury's finding regarding contract compliance contradicted the evidence. The standard of review requires BISD to show that the adverse finding was against the great weight of the evidence, necessitating a thorough evaluation of all presented evidence. The trier of fact retains the discretion to judge witness credibility and testimony weight.

Juries possess broad discretion to award damages based on trial evidence, but they cannot arbitrarily set amounts unsupported by that evidence. While BISD claimed the jury was only presented with two specific damage calculations ($1,027,205.45 and $898,011.73) based on competitive bids for roof repairs, additional evidence, including a "Project Proposal Register" showing bids from various contractors, was also available. Notably, a bid from Lon Smith Roofing, totaling $519,771.00, aligns with the jury's award. The jury could have reasonably adjusted BISD's claimed figures by excluding unnecessary service costs. BISD's argument for measuring damages at the time of trial due to a continuing breach by Briones was deemed unpersuasive, as BISD had declared Briones in breach and terminated the contract in March 2004, precluding any further repairs. The jury's award of $519,771.00 was thus within its discretion and supported by the evidence, leading to the conclusion that the damages finding was not contrary to the evidence presented.

The jury found that Tony Briones, operating as West Texas Concrete and Metal Buildings, did not fail to comply with the contract with Brock Independent School District (BISD), despite BISD's contention that the verdict was contrary to the evidence. BISD argued that Briones violated contractual obligations by not adhering to project specifications and by hiring subcontractors without written approval. Evidence indicated that RollCOM, the roofing manufacturer, refused to issue a warranty due to installation issues, including improper fastening and missing sealants. ECI, another evaluator, confirmed that the roof was improperly installed and recommended replacement due to leaks.

Additionally, it was revealed that project superintendent Weaver directed the installation process, often overriding standard procedures. He instructed the crew to use fewer fasteners due to material shortages and allowed work in adverse weather conditions. Briones noted that he felt compelled to follow Weaver's directions, reflecting a hierarchical command structure on site. The project plans provided to contractors lacked the necessary RollCOM installation instructions, which contributed to installation difficulties, such as misaligned anchor bolts and rusted materials.

Briones had sought approval to subcontract work to Trevino's crew, which Sandefur confirmed was acceptable. The jury evaluated witness credibility and determined that the evidence supported their conclusion, which is not subject to challenge in this context.

The evidence supporting the jury's "No" answer regarding the contract compliance issue is deemed sufficient and not clearly wrong or unjust. BISD's fifth issue is overruled. In BISD's first issue, it argues that the trial court incorrectly instructed the jury that the actions of DSA, Inc. are attributable to BISD, claiming this misrepresented agency law, removed agency questions from the jury, lacked evidentiary support, and commented on the evidence's weight. In its second issue, BISD contends that the jury's 85% negligence apportionment to BISD is against the great weight of the evidence. BISD's fourth issue challenges the inclusion of a damages mitigation instruction, arguing insufficient evidentiary support for it. The trial court is required to provide proper instructions for jury verdicts, with significant discretion afforded in this process. Any errors in jury instructions are reversible only if they resulted in harm that likely caused an improper judgment or hindered the appeal process. Appellees argue that BISD did not preserve some objections regarding the agency instruction, but the court disagrees, indicating BISD's objections were adequately noted.

To preserve error regarding the jury charge, a party must timely and clearly inform the trial court of the complaint and obtain a ruling, as established in State Department of Highways v. Payne and Tex. R. Civ. P. 274. The arguments presented by BISD revolve around claims that Weaver or DSA acted beyond their actual or apparent authority in negligent activities related to erroneous roof installation instructions. BISD contends it did not ratify DSA's actions, effectively communicating its complaint to the trial court, which allows for full consideration of its arguments.

BISD's objections assert that the trial court erred by including jury instructions that attributed the negligent actions of Weaver or DSA to BISD, arguing that the contract documents limited DSA's authority and provided no evidence of extended authority over the means or methods of construction work. The jury found Briones liable for breach of warranty and awarded BISD $519,771.00 in damages. This amount reflects the jury's breach of warranty finding and is not reduced based on a finding of 85% negligence attributed to BISD. The trial court's instruction that "the actions of DSA, Inc. are those of BISD" did not influence the damages awarded, as the jury was specifically instructed not to reduce the damage amount based on BISD's attributed negligence.

BISD's argument regarding a mitigation instruction contends there was insufficient evidence for its inclusion and claims that the jury may have awarded less damages due to this instruction. However, since no party contests the breach of warranty finding and the damages were affirmed, any potential error from the court's instruction was deemed harmless under Tex. R. App. P. 44.1. Consequently, BISD's first and second issues are overruled.

The trial court's inclusion of a mitigation instruction in the jury charge was assumed to be an abuse of discretion, but this error was not deemed harmful. The jury's damages determination was based on a contractor's bid for a roof overlay and ceiling panel replacement, which was supported by other calculations presented in evidence. There was no indication that the mitigation instruction influenced the jury's damages finding or led to an improper judgment, in accordance with Texas Rule of Appellate Procedure 44.1. All of BISD's arguments were overruled, and the trial court's judgment was affirmed. BISD's challenge regarding the factual sufficiency of the evidence was acknowledged, particularly since they bore the burden of proof for their breach of warranty claim. The damages award was attributed entirely to this claim, warranting a specific standard of review for factual sufficiency. Detailed explanations were provided regarding the installation of a standing seam roof, including the use of a mechanical seamer and hand crimper.

BISD argues that the jury instructions regarding agency misrepresent the law by asserting that there was insufficient evidence to prove that Weaver acted within his actual or apparent authority as an agent for BISD or DSA concerning roof installation instructions. BISD claims that the evidence does not definitively show that every act performed by DSA fell within its agency relationship with BISD. Furthermore, BISD contends that the instructions improperly took the agency question away from the jury due to conflicting evidence about whether DSA or Weaver acted within their apparent authority during the alleged direction of roof installation. Additionally, BISD argues that the trial court's instruction lacked support from the pleadings and evidence, claiming there was no basis to state that all of DSA’s actions were attributable to BISD. Lastly, BISD asserts that the instruction improperly influenced the jury's assessment of evidence by presuming that DSA or Weaver were acting as BISD’s agents during the alleged negligent acts and disregarding any evidence suggesting DSA acted beyond its authority when overseeing Appellees' work. Relevant legal references include Tex. Civ. Prac. Rem. Code Ann. §§ 33.001, 33.012(a), which outline the proportionate responsibility framework.