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Liberty Mutual Ins. Co. v. Heitkamp Swift Architects, Inc.

Court of Appeals of Texas, Fourteenth District

January 23, 2014

LIBERTY MUTUAL INSURANCE COMPANY AND NATIONS CONSTRUCTION MANAGEMENT, INC., Appellants
v.
HEITKAMP SWIFT ARCHITECTS, INC., Appellee

On Appeal from the 80th District Court Harris County, Texas Trial Court Cause No. 2011-12048

Panel consists of Chief Justice Frost and Justices Boyce and Jamison.

MEMORANDUM OPINION

Martha Hill Jamison, Justice

In one issue, appellants Nations Construction Management, Inc. and Liberty Mutual Insurance Company complain of the trial court's denial of their motion for directed verdict on the ground that appellee Heitkamp Swift Architects, Inc.'s claim on a materialman's bond was barred by limitations. Concluding appellants did not preserve error on their sole appellate point, we affirm.

Background

Nations was hired by First Venture Associates-Fannin, LLC as the general contractor to build a neuro-rehabilitation center in Houston, Texas. In February 2006, Heitkamp entered into an agreement with First Venture to provide architectural services for the project. On May 20, 2008, Heitkamp filed a mechanic's and materialman's lien for $79, 252.37 for work completed on the project. See Tex. Prop. Code § 53.021. On March 1, 2010, Nations, as principal, and Liberty Mutual, as surety, filed a bond for $119, 252.37 to indemnify against the Heitkamp lien. See id. § 53.171. Heitkamp received notice of the bond filing on March 17, 2010.

On February 24, 2011, Heitkamp sued Liberty Mutual for breach of contract. On March 29, Heitkamp amended its petition to add Nations as a defendant and seek payment under the bond. Additionally, Heitkamp no longer asserted a breach of contract claim against Liberty Mutual.[1] Heitkamp subsequently amended its petition to seek foreclosure of the lien. The case went to trial before a jury on May 22, 2012.[2] Appellants moved for a directed verdict, asserting, as relevant here, that Heitkamp's claim to recover on the bond was barred by limitations. The trial court denied the motion. The jury found that First Venture breached the architectural services contract and awarded Heitkamp damages of $66, 770 plus attorney's fees. The trial court rendered judgment in favor of Heitkamp and against appellants for damages consistent with the jury's verdict and for foreclosure of the lien.

Discussion

In their sole issue, appellants complain of the trial court's denial of their motion for directed verdict because Heitkamp's claim seeking recovery on the bond was barred by the statute of limitations. Texas law is well settled that a defendant who moves for a directed verdict after the plaintiff rests, but thereafter elects not to stand on his motion for directed verdict, and offers evidence in his own case, waives his motion for directed verdict unless the motion is reurged at the close of the evidence. Dalbosco v. Seibert, No. 14-11-00429-CV, 2012 WL 1795108, at *5 (Tex. App.—Houston [14th Dist.] May 17, 2012, pet. denied) (mem. op.); see also Shows v. Man Engines & Components, Inc., 364 S.W.3d 348, 357 n.13 (Tex. App.—Houston [14th Dist.] 2012, pet. granted). The core principle underlying error-preservation requirements is that the trial court should be given the opportunity to correct potential errors before the case proceeds on appeal. Majeed v. Hussain, No. 03-08-00679-CV, 2010 WL 4137472, at *3 (Tex. App.— Austin Oct. 22, 2010, no pet.) (mem. op.) (citing In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999)). ...


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