Appeal from the 152nd District Court Harris County, Texas
Trial Court Cause No. 2012-34382
consists of Justices Boyce, Busby, and Wise.
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.
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.
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.
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.
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:
then incorporated ATI's proposal, including this specific
language, into its own proposal to 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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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
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 ...