Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Childress Engineering Services, Inc. v. Deleon

Court of Appeals of Texas, Fifth District, Dallas

November 29, 2017

CHILDRESS ENGINEERING SERVICES, INC., Appellant
v.
JUAN A. DELEON, Appellee

         On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-12-07710

          Before Justices Lang, Brown, and Whitehill.

          MEMORANDUM OPINION

          ADA BROWN JUSTICE.

         Childress Engineering Services, Inc. (CES) appeals from a final judgment against it for breach of contract following a jury trial. In two issues, CES contends (1) the trial court abused its discretion by omitting a jury question on the formation of a contract between CES and appellee Juan A. DeLeon, and (2) the jury charge did not support the final judgment due to a conflict between the charge's breach of contract question and the jury's "no" answer to the charge's negligence question. For the following reasons, we affirm the trial court's final judgment.

         Background

         DeLeon hired Rick Wasser of RWW Construction Management to consult on and manage construction of a building on property DeLeon owned in Grand Prairie, Texas. Wasser contacted CES about designing the building's foundation. CES Client Service Manager Hollie Lenckus sent a written proposal for the design to Wasser, and Wasser responded by email that "we would like to go forward" on the project. Wasser further wrote that he needed Lenckus "to list Juan A. DeLeon as the property owner. I have a contract to manage the project for him and a Power of Attorney but he is the property owner and developer." Wasser subsequently returned the proposal, which he signed "Rick W. Wasser-RWW CONST. MGMNT." with the notation "REPRESENTING OWNER-JUAN A. DELEON, " and enclosed a check issued by DeLeon Masonry, Inc. as payment in full for the CES foundation plans and engineering.

         Tony Childress, president and owner of CES, prepared the foundation design for the building. After construction, the foundation began to move and cracks appeared in the building's interior and exterior. Wasser reported the cracks to Childress and, for a time, Childress, Wasser, and DeLeon corresponded regarding potential remediation of the foundation. No agreement on remedial work was reached, and DeLeon subsequently initiated this action against CES alleging claims for negligence and breach of contract.[1]

         The parties presented the case to the jury. The court's jury charge included the following question on the breach of contract claim: "Did [CES] fail to comply with an agreement to properly design the foundation of [DeLeon's] building." The charge defined DeLeon as follows:

"Juan DeLeon" includes the Plaintiff Juan DeLeon, individually, and any contractors, subcontractors, and subconsultants working at his direction on the project located at 1913 East Abrams Street, Arlington, Texas 76010.

         During the charge conference, CES objected to the failure to include a question on the formation of a contract between CES and DeLeon. The court overruled the objection and found as a matter of law that there was "no question of fact as to whether or not or no more than a scintilla regarding whether or not there was an agreement." CES did not object to either the breach of contract question or the definition of DeLeon.

         The jury answered "no" to a negligence question, but "yes" to the breach of contract question and awarded DeLeon $100, 000 in costs to repair the building. CES moved to disregard the jury verdict and for judgment notwithstanding the verdict. The trial court denied the motions and entered final judgment on the jury's verdict.

         Applicable Law

         We review alleged jury charge error for an abuse of discretion. Rosell v. Central W. Motor Stages, Inc., 89 S.W.3d 643, 653 (Tex. App.-Dallas 2002, pet. denied). A trial court must submit jury questions, instructions, and definitions that are raised by the pleadings and the evidence. Tex.R.Civ.P. 278; Triplex Commc'ns, Inc. v. Riley, 900 S.W.2d 716, 718 (Tex. 1995) ("If an issue is properly pleaded and is supported by some evidence, a litigant is entitled to have controlling questions submitted to the jury."); Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992). To determine whether legally sufficient evidence supports submission of a jury question, we examine the record for evidence supporting submission and ignore evidence to the contrary. Elbaor, 845 S.W.2d at 243; Pitts & Collard, L.L.P. v. Schechter, 369 S.W.3d 301, 318 (Tex. App.-Houston [1st Dist.] 2011, no pet.). If there is no evidence to support a proposed jury question, the trial court may refuse to submit it. See Tex. R. Civ. P. 278; Elbaor, 845 S.W.2d at 243; Pitts & Collard, L.L.P., 369 S.W.3d at 318.

         A party must present objections to a jury charge "before the charge is read to the jury, " and the objections must be specific, pointing out "distinctly the objectionable matter and the grounds of the objection." Tex. Rs. Civ. P. 272, 274; Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43 (Tex. 2007). To preserve error, the objection must state "the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." Tex.R.App.P. 33.1(a). Failure to timely object to error in a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.