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Goldshire Developers, LLC v. Aggregate Technologies, Inc.

Court of Appeals of Texas, Fourteenth District

April 13, 2017


         On Appeal from the 152nd District Court Harris County, Texas Trial Court Cause No. 2012-34382

          Panel consists of Justices Boyce, Busby, and Wise.


          Ken Wise Justice.

         Aggregate Technologies, Inc. (ATI) sued Goldshire Developers, LLC (Goldshire) for breach of contract and quantum meruit arising out of a subcontract for concrete demolition in connection with Houston's light rail project. The trial court signed a judgment for ATI after a jury trial. In this appeal, Goldshire challenges the trial court's charge, the sufficiency of the evidence supporting the jury's findings, and the trial court's denial of a proposed trial amendment. For the reasons explained below, we affirm.

         Factual Background

         Goldshire is a construction company that regularly contracts with government entities to perform public works projects. ATI is a specialty subcontractor that specializes in sawing, cutting, and removing concrete.

         In 2011, The Metropolitan Transit Authority of Harris County (METRO) was in the midst of planning and constructing a light rail project. The $1.1 billion project involved multiple contracts with a joint venture of contractors called Houston Rapid Transit (HRT). One of these contracts involved the partial demolition of the historic North Main Street railroad bridge over White Oak Bayou so a bridge could be constructed that would support the new rail.

         Lone Star Road Construction (Lone Star) submitted a bid to HRT to demolish and construct the bridge. In preparing the bid, Lone Star solicited a bid from ATI for the demolition portion of the work. Ultimately, however, HRT decided to perform the construction and contract for the demolition portion. ATI declined to contract directly with HRT.

         Goldshire's chief executive officer, Witty Bindra, then contacted ATI's president, Ronnie Wills, about submitting a bid to Goldshire for the demolition work. ATI prepared its quotation to Goldshire using HRT's bid solicitation documents, including detailed plan sheets and addenda. ATI submitted a quotation for the demolition work to Goldshire in March 2011. ATI's quotation read as follows:

         (Image Omitted)

         Goldshire then incorporated ATI's proposal, including this specific language, into its own proposal to HRT.

         HRT ultimately awarded the subcontract for the bridge demolition to Goldshire. Goldshire then signed ATI's quotation and it became the subcontract between them (the Subcontract). Functionally, ATI became a second-tier subcontractor to Goldshire, who was in turn a subcontractor to HRT.

         ATI planned to perform the demolition work on the bridge in phases. One phase required ATI to remove the supporting structure of the bridge, which consisted of bents, columns, and footings. A "bent" is the horizontal concrete beam under the bridge deck that is supported by a vertical column on each end. At the base of each column is a concrete "footing" which rests on pilings. ATI's Bridge Removal Plan reflected that ATI was obligated to remove the bents, columns, and footings "on lines 30, 36, 37, 38, 40, 41, 43, and 47." ATI was not removing the pilings under the footings.

         Most of ATI's work proceeded without incident until December 2011. By then, the deck, bents, most of the columns, and some footings had been removed. In December, however, ATI was unable to locate some of the footings at the depth and in the size indicated on the plans. ATI also discovered an undisclosed, 40-foot concrete structural wall buried beneath the columns at Bent 40.

         ATI and Goldshire agreed to a change order in which ATI gave Goldshire a $24, 000.00 credit for not removing twelve of the footings shown on the plans, and Goldshire increased the Subcontract by $24, 000.00 for the removal of the 40-foot concrete wall at Bent 40. In addition, Goldshire added another $4, 000.00 to the Subcontract for additional saw cutting and demolition of the 40-foot wall.

         After the change order was made, another HRT contractor, while drilling large-diameter holes for new pilings, discovered a footing at Bent 36 and drilled it out in January 2012. When the footing was discovered, Goldshire and ATI realized that the footings were deeper and larger than they had believed. Goldshire then instructed ATI to remove the footings that ATI had failed to find, but the $24, 000.00 change order credit was not reversed and no new written change order was made.

         Bents 38 and 40 were located at the southern and northern edge of the bayou. In mid-December, ATI encountered difficulty in its effort to excavate and remove the buried footings at these two bents due to water intrusion. In the Subcontract, ATI had committed to trying to remove structures near and in water without sheet piling or cofferdams "but can't guarantee these items won't be needed." Additionally, the Subcontract provided in pre-printed language at the bottom of each page that ATI was not responsible for water control.

         ATI found that the continuing water intrusion made it impossible to work on the footings at Bents 38 and 40. ATI spent a month dealing with this issue before a meeting was held on January 18, 2012. At the meeting, an argument ensued over financial responsibility for the installation of sheet piling or cofferdams to control the water intrusion. HRT suggested that the parties split the cost for HRT's contractor to drill out the footings, but ATI objected to paying for drilling. To expedite ATI's completion of its work, HRT agreed to install sheet pilings.

         ATI was able to remove one of the footings at Bent 38, but it took three days, extensive excavation, and a large amount of soil to backfill the hole. Because of scheduling constraints, HRT instructed ATI not to attempt to remove the second footing. Instead, HRT had its contractor drill out the footing.

         HRT finished driving the sheet pilings at Bent 40 on January 24, and ATI was able to break up and remove one footing at Bent 40. Water flow into the excavations at Bent 40 continued, however, because the sheet pilings had gaps and the pumps on site could not handle the volume of water. This issue continued into February 2012, and even Goldshire's personnel recognized that ATI could make no progress until HRT stopped the water. By February 7, ATI agreed to HRT's proposal to install a trench box at Bent 40 in an attempt to control the water. ATI agreed to proceed only on the condition that if that method did not work, it would have no further obligation to complete the removal of the footings. Once installed, the trench box helped, but did not fix the problem.

         With additional pumps, ATI was able to lower the water sufficiently in March so that it could break up the other footing so that it could be extracted. ATI's last day on the site was March 22, 2012.

         In mid-February, ATI prepared an internal punch list identifying eight tasks remaining for ATI to complete, including the removal of one footing at Bent 40. By March 22, when ATI left the site, it had completed all but three items on the punch list and one more item not contained on the list. ATI's president, Ronnie Wills, testified at trial that the reasonable cost to complete this work was $15, 700.00.

         Goldshire also maintained a punch list. By April 2, 2012, Goldshire identified only two items to be completed by ATI: lateral repairs and electrical conduit repairs. Goldshire also informed ATI that it intended to pass along a backcharge between HRT and Goldshire for any footings not removed by ATI. Goldshire estimated that the cost to complete the remaining work was $59, 292.16.

         When Goldshire failed to pay ATI the total amount that ATI claimed was due under the Subcontract, ATI sued Goldshire for breach of contract and quantum meruit, and also sued HRT and its sureties to recover under a payment bond. After amending its petition, ATI sought to recover $184, 156.66 from Goldshire and $85, 325.01 from HRT and its sureties. At trial, ATI sought damages for three of its applications for payment that Goldshire had refused to pay. For purposes of this appeal, however, it is necessary to discuss only Pay Application 8, in the amount of $85, 325.01. Pay Application 8 was for amounts ATI incurred in attempting to work around and through water to remove the footings at Bents 38 and 40.

         At trial, Goldshire took the position that ATI never requested or received Goldshire's written approval for a change order for the additional work at Bents 38 and 40. According to Goldshire, the scope of work incorporated into the Subcontract included a provision requiring that change orders must be approved in writing or they would be subject to nonpayment. This scope of work also required ATI to identify any requirement for coffer dams or sheet piling to perform the demolition of the footings along Bents 38 and 40 in the Bridge Removal Plan. Based on these provisions, Goldshire argued that ATI never presented a written change order for the extra work at Bents 38 and 40 that was approved by Goldshire, and that ATI was responsible for water control in that area because it did not indicate in its Bridge Removal Plan that HRT would need to provide coffer dams or sheet piling.

         Although several different documents titled "Scope of Work" were admitted into evidence, Goldshire maintained that the operative document was one taken from Goldshire's contract with HRT, identified at trial as Exhibit 142. Ronnie Wills of ATI had marked up Exhibit 142 with comments and margin notes identifying each party's obligations, but he did not sign the document or initial in ...

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