Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 14th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-14-07892
Justices Lang, Myers, and Stoddart.
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
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
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
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
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.
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.
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.
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
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 ...