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Khan v. Chai Road, Inc.

Court of Appeals of Texas, Fifth District, Dallas

July 17, 2017

ABDUL KHAN, Appellant

         On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-07892

          Before Justices Lang, Myers, and Stoddart.



         Abdul Khan appeals an adverse judgment for damages for breach of contract following a jury trial. In three issues, he argues the trial court erred by not granting a mistrial when a witness referred to Khan's religion, the jury charge included an incorrect measure of damages, and there is no evidence appellee tendered performance under the contract. We affirm.


         Khan contacted WaterJet about a design for a stone medallion in the foyer of his new home. WaterJet was to design the medallion and cut the stones for the design to be installed by Khan's builder. WaterJet's owner, Philip Einsohn, showed Khan a large design he produced for another customer, which Khan liked very much. That design was too large for Khan's home, however, so Einsohn proposed adapting the design to fit the space. The proposed price was approximately $50, 000 plus the cost of materials, a price that exceeded Khan's budget.

         After some negotiation, they reached an agreement for WaterJet to adapt the design and cut the stone for $25, 000, plus materials at WaterJet's cost plus twenty percent. Khan paid $25, 000 to WaterJet in advance. WaterJet sent a written acknowledgement dated May 1, 2014 of the payment, which included specific terms for the project. Khan testified the May 1, 2014 acknowledgment was their contract. One of the terms of the acknowledgement required payment of the balance before delivery of the foyer medallion. Khan also told Einsohn he planned to finish the floor by the end of June, but the acknowledgement did not include a deadline for delivery.

         WaterJet prepared an initial design in early May. Khan was disappointed with the design and requested a larger one. Einsohn explained that Khan's budget of $25, 000 would not allow for a larger design. After further negotiation, WaterJet offered to modify the design for an additional $6, 000. Khan agreed to pay the additional amount if he liked the new design.

         WaterJet presented a new design and the Khans approved it around the middle of June. A few days later, Khan suggested adding some circles to the design. Einsohn agreed. On June 23, 2014, Einsohn met with the Khans and showed them refined drawings. Pursuant to an e-mail sent by Einsohn after the meeting, they agreed WaterJet would order material, bill Khan as soon as the order was acknowledged, and Khan would pay the invoice on receipt of the acknowledgement. WaterJet agreed to notify Khan when the materials arrived and would begin cutting the stone for the main design.

         On June 27, 2014, WaterJet billed Khan $11, 891.57 for the materials. The invoice stated it was due on receipt and that payment was required before shipping. WaterJet received the materials and paid its supplier a few days later. Khan, however, did not pay the invoice. After communicating with Khan, WaterJet began cutting the stone for the medallion. On June 30, 2014, Khan met with Einsohn. Afterward, Einsohn sent an e-mail stating he would continue cutting the material and asked Khan to pay the invoice at their July 2 meeting to review the drawings with the circles added. On July 1, 2014, Einsohn notified Khan the drawings were finished and again asked Khan to bring a check for the materials to the meeting. Khan initially confirmed the meeting, but that morning requested Einsohn e-mail the design to them for review because Khan's wife was out of town. Einsohn suggested Khan come to the office to see the drawings and bring a check for the materials. Khan did not meet with Einsohn or deliver a check. On July 3, 2014, Khan complained that Einsohn did not send the design as requested and his wife refused to make any payment until she saw the design. Einsohn responded that the drawings were available at his office once Khan met his commitment to pay for the materials.

         Khan sued WaterJet for breach of contract and other claims on July 23, 2014. He sought a refund of the $25, 000 he paid. WaterJet filed a counterclaim for breach of contract, seeking payment of the $6, 000 additional design fee and $11, 891.57 for the materials. The jury found the parties entered into a contract, Khan breached the contract, WaterJet did not breach the contract, and that WaterJet's damages were $17, 891.57. The trial court rendered judgment on the jury verdict in favor of WaterJet. Khan's motions for judgment notwithstanding the verdict and for new trial were overruled.


         1. Incurable harm

         In his first issue, Khan contends the trial court erred by denying his motion for mistrial, which asserted he suffered incurable harm from Einsohn's reference to Khan's religion at trial.

         We review the trial court's denial of a motion for mistrial under an abuse of discretion standard. Deese v. Combined Specialty Ins. Co., 352 S.W.3d 864, 866 (Tex. App.-Dallas 2011, no pet.). We review whether an improper statement by a witness constitutes incurable harm under the same standards that are applicable to incurable jury argument. Nguyen v. Myers, 442 S.W.3d 434, 441 (Tex. App.-Dallas 2013, no pet.). Incurable harm from argument is rare. Such an argument "strikes at the very core of the judicial process, " Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009), and "by its nature, degree, and extent constitute[s] such error that an instruction from the court or retraction of the argument could not remove its effects." Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680-81 (Tex. 2008) (per curiam). Examples of incurable arguments are appeals to racial prejudice, extreme unsupported personal attacks ...

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