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holding that the defendants could challenge the sufficiency of the evidence to support the jury's adverse finding on a condition precedent question despite the defendants' failure to specifically deny the condition precedent under Rule 54; the condition precedent was tried by consent when the parties addressed the issue in their arguments and submitted the issue to the fact-finder in a jury question
Summary of this case from Hamdan v. HamdanOpinion
No. 05-10-00712-CV
Opinion Filed May 5, 2011.
On Appeal from the 86th Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 76978-86.
Before Justices O'NEILL, FITZGERALD, and LANG.
MEMORANDUM OPINION
Appellee Pavecon, Ltd. ("Pavecon") sued appellants Dallas Raceway, Inc. ("Dallas Raceway") and SureTec Insurance Company ("SureTec") (collectively, "appellants") claiming, inter alia, breach of a construction contract. Following a jury trial, the trial court signed a judgment awarding Pavecon damages and attorney's fees totaling $139,774.13, for which appellants were made jointly and severally liable.
In two issues on appeal, appellants contend the evidence is legally and factually insufficient to support the jury's finding that Pavecon substantially performed its obligations under the contract at issue. We decide against appellants on their two issues. The trial court's judgment is affirmed. Because the law to be applied in this case is well settled, we issue this memorandum opinion. See Tex. R. App. P. 47.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 20, 2008, Dallas Raceway, as "Owner," and Pavecon, as "Contractor" executed a contract entitled "Owner-Contractor Agreement" (the "contract"). Pursuant to that contract, Pavecon agreed to furnish materials for and perform certain paving services pertaining to Dallas Raceway's construction of a racetrack and associated facilities (the "Project") in return for payment by Dallas Raceway of $1,020,381. The scope of work to be performed by Pavecon (the "Work") was specifically described in a proposal prepared by Pavecon that was attached to the contract as "Exhibit `a.'" That exhibit, which was "incorporated by reference" in the contract, stated in relevant part:
2" Asphalt at spectator parking 190,188 s.f. .89 per s.f. $169,463.00
3" asphalt paving at staging 189,745 s.f. 1.32 per s.f. $250,286.00 area access roads
5" Asphalt paving at track 177,600 s.f. 3.03 per s.f. $538,678.00
Milling at decel. Lane 9000 s.f. .53 per s.f. $4,780.00
6" Asphalt base at decel. 9000 s.f. 3.14 per s.f. $28,265.00 Lane
3" Asphalt surface at decel. 17,250 s.f. 1.61 per s.f. $27,713.00 Lane
Traffic control at decel. Lane 1 ls. $1,195.00
$1,020,381. 00
. . . .
As[p]halt prices that are valid until[] 7/31/08 are as listed below
Type-B asphalt base incl. Transportation $ 52.00 per ton
Type-D asphalt surface incl. Transportation $ 55.00 per ton
The contract provided that on the fifteenth day of each month, Dallas Raceway would pay Pavecon "the value of the labor and materials incorporated by [Pavecon] into the Work . . . through that date." If Dallas Raceway failed to make such payment within ten days, Pavecon could "suspend work at the Project until paid." Additionally, the contract stated it could be amended or modified "only by a written instrument signed by the parties."
In late June 2008, Pavecon began installing asphalt in the spectator parking area. Pavecon halted that work on July 14, 2008. In a July 15, 2008 letter from Pavecon that the record reflects was received by Dallas Raceway, Pavecon (1) stated it had halted paving of the parking area due to problems with the preparation of the underlying base, or "subgrade," of that area, which Pavecon stated was the responsibility of Dallas Raceway, and (2) described preparations for paving the track. That letter stated in part, "It is hereby acknowledged Pavecon has been and stands ready to complete the total asphalt paving by the end of July if scheduled paving of the track and the remaining parking and access roads can begin with two paving crews Monday July 21st." Further, that letter stated, "Pavecon to date has not been given any specifications for construction of asphalt pavement for this project. . . . Proposed asphalt is TXDOT type "B" and type "D" with RAP. We require owner approval of mix design for track paving before beginning this portion of the job." At the end of the letter was the word "Accepted:" and typed lines that read "Dallas Raceway Inc.," and "Kenny Barnes, Owner." The letter was not signed by Pavecon or Dallas Raceway. On that same date, Pavecon submitted to Dallas Raceway an application for payment of $137,950 for work performed on the spectator parking area.
In a letter sent by Pavecon to Dallas Raceway dated July 17, 2008, Pavecon stated it was "awaiting word" from Dallas Raceway that "the subgrade has been repaired and ready [sic] to resume the paving operation." Further, Pavecon wrote that it had been notified that Dallas Raceway had placed Pavecon "on hold status" in order to "investigate an alternative method to complete the paving scope of the project." Pavecon stated "This letter is to verify that we will remain in hold status until further notice."
No payment was made by Dallas Raceway to Pavecon. Pavecon performed no other work under the contract.
On September 30, 2008, Pavecon filed this suit. In its last-filed petition at the time of trial, Pavecon alleged, in relevant part,
[Pavecon] and Dallas Raceway entered into a contract under the terms of which [Pavecon] was to provide certain labor and materials to Dallas Raceway's project. [Pavecon] complied with all of its obligations under the contract, but Dallas Raceway has breached the contract by failing to pay [Pavecon] the amounts agreed upon. . . . All conditions precedent to [Pavecon's] recovery have been met or have occurred.
Additionally, on October 1, 2008, Pavecon filed "in the official public records of Kaufman County" an affidavit in support of a mechanics' and materialmen's lien to place a lien upon the property on which the work was performed. Pavecon stated it had made improvements on that property and sought payment in the amount of $137,950. Subsequent to the filing of that affidavit, Dallas Raceway and SureTec executed a bond to indemnify against the lien, naming SureTec as the surety.
Both SureTec and Dallas Raceway filed general denial answers. Further, Dallas Raceway asserted a "denial of condition precedent" in which it contended "Pavecon failed to provide proper notice or failed to satisfy all conditions that would entitle it to payment under the contract."
At trial, the contract and other documents described above were admitted into evidence. Gregory Hampton, an estimator and project manager for Pavecon, testified he prepared the estimate for the Project. He stated the bid he prepared was based on "standard TXDOT approved type D and type B asphalt." He testified it was the responsibility of Dallas Raceway to prepare the subgrade of the spectator parking area prior to paving. According to Hampton, Pavecon "did a third or half of the spectator parking base," then halted work due to "subgrade issues." On cross-examination, Hampton testified "RAP" means "Recycled Asphalt Product." He stated that before the July 15, 2008 letter that referenced RAP, Pavecon had already used RAP on the parking area. He did not tell Dallas Raceway that RAP would be used on the job. Hampton stated that at the time he prepared the estimate for the Project, he "didn't know there was such a thing as recycled asphalt." On re-direct examination, Hampton stated that since that time, he has learned that use of RAP is approved by TXDOT and that RAP is "incorporated into TXDOT approved mix designs."
"TXDOT" was identified elsewhere in the record as the Texas Department of Transportation.
Charles David Walker, the president of Pavecon, testified Pavecon completed 81.4 % of the spectator parking area. He testified the asphalt used in paving the spectator parking area was "TXDOT's standard road mix." That mix contained RAP. He stated Pavecon did not receive any specific direction from Dallas Raceway about what type of "mix design" to use in paving the parking area. According to Walker, RAP is "a standards common" for parking lots and Pavecon doesn't "normally specify it." He testified Pavecon has not experienced any kind of "failures" in using RAP, and its use is "urged" by TXDOT. He stated that the supplier used by Pavecon has "high quality control" and follows "TXDOT standards." He testified Pavecon had "no concern whatsoever" about using RAP in the parking areas.
Walker stated he knew that, because of the "torque of that wheel spinning," the track would require a "special mix," rather than the "normal road mix as you would put down on a road or parking lot." He testified Pavecon asked Dallas Raceway for paving specifications for the track several times, but did not receive any.
Walker testified it was Pavecon's intent to complete the entire project as described in the contract. He stated that the amount of $137,950 in the application for payment was calculated by multiplying the square footage of the area completed by the price per square foot as stated in the contract. According to Walker, Pavecon was seeking to recover not only that amount, but also $132,364 that Pavecon expected to make in profit on "the whole project."
On cross-examination, Walker testified that using RAP saves costs. He did not tell Dallas Raceway that RAP would be used in the parking areas. Walker stated he wrote the July 15, 2008 letter to Dallas Raceway. According to Walker, the request for approval of a mix design in that letter did not pertain to the parking area.
Kenny Barnes, the owner of Dallas Raceway, testified he did not pay Pavecon because Pavecon used recycled asphalt, which its representatives had orally agreed not to do. Also, Barnes testified he did not allow Pavecon to finish the job because of the use of recycled asphalt and other problems with a "sister company" of Pavecon.
After the presentation of evidence, and outside the presence of the jury, the trial court asked whether the parties had any objections to the charge of the court. Dallas Raceway's sole objection to the charge of the court was stated as follows:
Your Honor, we have one objection to Question 1. We believe that Question 1 ought to-Question 1 ought to read:
Did Pavecon and Dallas Raceway enter into an agreement for Pavecon to install recycled asphalt products when paving the spectator parking of the Dallas Raceway strip located in Kaufman County?
We believe that would be the proper phrasing of Question 1 for the underlying question as to whether or not there was ever an agreement to use recycled asphalt.
The trial court overruled Dallas Raceway's objection.
Then, Dallas Raceway moved for a directed verdict. Specifically, counsel for Dallas Raceway argued
[T]he evidence is conclusively established that Pavecon has failed to perform under its agreement. By its own admissions and by the documents tendered it's [sic] has only performed thirteen percent of the obligations under the contract, and therefore directed verdict ought to be granted that it's not complied with the agreement.
The motion was overruled.
During closing arguments before the jury, counsel for Pavecon argued in part
. . . I just want to go through and tell you from Pavecon's perspective what we believe the evidence was that will support answers that we think you need to put on this charge.
Question 1. Did Pavecon substantially perform its obligations under the agreement? I submit to you that Pavecon went beyond substantial performance, that they completely performed their obligations until they were told not to come back.
And the reason I say that, the definition of substantial performance is did they comply in good faith with their obligations under the contract. And that includes things such as that there-that any inadvertent nonperformance in the contract didn't impair the structure as a whole.
Again, Pavecon did exactly what it was supposed to do. It put down two inches of asphalt. It's the kind of asphalt that Pavecon uses, day-in-and-day-out, every project that they do. It's common asphalt.
Dallas Raceway asserted in relevant part during closing argument that, with respect to whether Pavecon "substantially perform[ed] its obligations under the agreement," Pavecon's "obligations" under the contract included all work in Exhibit "a." Dallas Raceway argued Pavecon did 13.5% of the total work required under the contract, which "doesn't constitute substantial in any way or in any form." Further, Dallas Raceway argued Pavecon "used a product that wasn't even authorized under the contract." Dallas Raceway contended that argument was supported by the July 15, 2008 letter from Pavecon requesting Dallas Raceway's approval to use recycled asphalt on the track.
On rebuttal, counsel for Pavecon responded in part
So, as the guardians of justice, is it just for a party to say "Okay, I got my parking area, get off my job, don't do anymore of your work" and then come in here and say "Ladies and gentlemen, they haven't substantially completed their work because they only did thirteen-and-a-half percent of the total contract in the case"? What is just about that?
Five questions were submitted to the jury. Question number one read as follows: Did Pavecon substantially perform its obligations under the agreement?
You are instructed that, to constitute "substantial performance," the contractor must have in good faith intended to comply with the contract, and shall have substantially done so in the sense that the defects are not pervasive, do not constitute a deviation from the general plan contemplated for the work, and are not so essential that the object of the parties in making the contract and its purpose cannot, without difficulty, be accomplished by remedying them. Such performance permits only such omissions or deviation from the contract as are inadvertent and unintentional, are not due to bad faith, do not impair the structure as a whole, and are remediable without doing material damage to other parts of the building in tearing down and reconstructing.
The jury answered "yes" to question number one.
Question number two, which the jury was instructed to answer only if it answered "yes" to question number one, asked, "Was Dallas Raceway excused from complying with the written agreement between Pavecon and Dallas Raceway?" The jury was instructed, in part, that Dallas Raceway was excused from complying with the agreement if "Pavecon failed to comply with the written agreement prior to Dallas Raceway's failure to comply with the written agreement." The jury answered "no" to question number two.
In question number three, the jury was asked, "What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Pavecon for its damages?" That question instructed the jury to "[c]onsider the following elements of damages, if any, and none other": (1) "[t]he difference between the price of the labor, materials, equipment and services provided by [Pavecon] and the amount actually paid by Dallas Raceway" and (2) "the difference between the agreed price and the cost [Pavecon] would have incurred in performing all the remaining work of the contract." The jury answered "$103,462.50" as to the first element of damages and "0" as to the second.
Questions number four and five, in which the jury determined reasonable attorney's fees for Pavecon and Dallas Raceway, respectively, are not relevant to this appeal.
Dallas Raceway filed a timely "Motion for Judgment Notwithstanding the Verdict and, in the Alternative, Motion for New Trial," which was denied by the trial court. In a final judgment dated March 11, 2010, the trial court awarded Pavecon damages of $103,462.50; pre-judgment interest of $9,311.63; and attorney's fees through trial in the amount of $27,000. A subsequent motion for new trial was filed by Dallas Raceway and overruled by operation of law. This appeal timely followed.
Additionally, the trial court's judgment provided for post-judgment interest and potential attorney's fees to Pavecon in the event of appeal.
II. APPELLANTS' ISSUES A. Standard of Review
In a legal sufficiency challenge respecting an issue on which the opposing party had the burden of proof, we review the evidence in a light that tends to support the finding of the disputed facts and disregard all evidence and inferences to the contrary. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). We must credit the favorable evidence if reasonable jurors could and disregard the contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). If there is more than a scintilla of evidence to support the finding, the legal sufficiency challenge fails. See, e.g., Formosa Plastics Corp. USA v. Presidio Eng'rs Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998); see also King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (more than scintilla of evidence exists when evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions").
When reviewing the factual sufficiency of evidence, we examine all the evidence and set aside a finding only if it is so contrary to the evidence as to be clearly wrong and unjust. Cameron v. Cameron, 158 S.W.3d 680, 683 (Tex. App.-Dallas 2005, pet. denied). In conducting our review of both the legal and factual sufficiency of the evidence, we are mindful that the jury, as fact finder, was the sole judge of the credibility of the witnesses and the weight to be given their testimony. City of Keller, 168 S.W.3d at 819; Hinkle v. Hinkle, 223 S.W.3d 773, 782 (Tex. App.-Dallas 2007, no pet.). We may not substitute our judgment for the fact finder's, even if we would reach a different answer on the evidence. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998); Hinkle, 223 S.W.3d at 782.
"[I]t is the court's charge, not some other unidentified law, that measures the sufficiency of the evidence when the opposing party fails to object to the charge." Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000); accord EMC Mortg. Corp. v. Jones, 252 S.W.3d 857, 869 (Tex. App.-Dallas 2008, no pet.); Hirschfeld Steel Co., Inc. v. Kellogg Brown Root, Inc., 201 S.W.3d 272, 286 (Tex. App.-Houston [14th Dist.] 2006, no pet.) (involving sufficiency of evidence to support substantial performance). The Texas Supreme Court has stated "[t]here should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling." State Dep't of Highways Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992); see also Tex. R. Civ. P. 272 (any charge objections not presented before charge is read to jury "shall be considered as waived"); Tex. R. Civ. P. 274 ("A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection.").
B. Applicable Law
The doctrine of substantial performance is "an equitable doctrine that was adopted to allow a contractor who has substantially completed a construction contract to sue on the contract rather than being relegated to his cause of action for quantum meruit." Vance v. My Apartment Steak House of San Antonio, Inc., 677 S.W.2d 480, 482 (Tex. 1984); see Gentry v. Squires Constr., Inc., 188 S.W.3d 396, 403 n. 3 (Tex. App.-Dallas 2006, no pet.).
"Substantial performance is a condition precedent to a contractor's right to bring a lawsuit on the contract." Gentry, 188 S.W.3d at 403 n. 3; accord Murray v. Crest Constr., Inc., 900 S.W.2d 342, 345 (Tex. 1995). The contractor bears the burden of proof under the doctrine of substantial performance. Dobbins v. Redden, 785 S.W.2d 377, 378 (Tex. 1990) (citing Vance, 677 S.W.2d at 483); Gentry, 188 S.W.3d at 403 n. 3. The contractor must prove: (1) he substantially performed in accordance with the contract; (2) the consideration owed to him under the contract; and (3) the cost of remedying the defects due to his errors or omissions. Gentry, 188 S.W.3d at 403 n. 3.
C. Analysis 1. Waiver of Condition Precedent
As a threshold matter, we begin with Pavecon's argument that appellants "waived" any complaint as to the condition precedent of substantial performance by failing to set out in their pleadings, with specificity, which conditions precedent had not been performed. In a reply brief in this Court, appellants contend the record shows not only that "Dallas Raceway expressly denied Pavecon's performance of at least two conditions precedent," but also that "Pavecon, without objection, allowed the issue of its substantial performance to be tried by consent," thereby waiving any right to complain on appeal about any alleged deficiencies in appellants' answers.
When a party seeking affirmative relief pleads that all conditions precedent to recovery have been performed or have occurred, that party is required to prove only such of them as are specifically denied by the opposite party. Tex. R. Civ. P. 54. "A defendant cannot generally deny that the plaintiff has not proved all conditions precedent, but must specifically deny which conditions precedent have not been met." Wade Sons, Inc. v. Am. Std., Inc., 127 S.W.3d 814, 826 (Tex. App.-Waco 2003, pet. denied).
When issues not raised by the pleadings are tried by express or implied consent of the parties, such issues must be treated in all respects as if they had been raised in the pleadings. Tex. R. Civ. P. 67. This rule applies to both claims and defenses. See Roark v. Stallworth Oil Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991). A party's unpleaded issue may be deemed tried by consent when evidence on the issue is developed under circumstances indicating that both parties understood the issue was in the case, and the other party fails to make an appropriate complaint. Johnson v. Structured Asset Servs., LLC, 148 S.W.3d 711, 719 (Tex. App.-Dallas 2004, no pet.). To determine whether an issue was tried by consent, the reviewing court must examine the record, not for evidence of the issue, but rather for evidence of trial of the issue. Id.
Assuming, without deciding, that the condition precedent of substantial performance was not properly denied by Dallas Raceway or Suretec, the record shows that issue was tried by consent. As described above, Pavecon's substantial performance was specifically addressed by the parties in their arguments and in question number one of the charge of the court. Neither party objected to such argument or to the language and instruction respecting substantial performance in question number one of the court's charge. Consequently, on this record, we conclude the issue was not waived. See id.; see also Emerson Elec. Co. v. Am. Permanent Ware Co., 201 S.W.3d 301, 309-10 (Tex. App.-Dallas 2006, no pet.) (closing argument of parties showed issue tried by consent).
2. Legal and Factual Sufficiency of the Evidence
In their two issues, appellants challenge the legal and factual sufficiency of the evidence to support "the jury's verdict and the district court's judgment that Pavecon substantially performedall its obligations under the parties' contract, even though Pavecon admitted at trial that it had, in fact, performed only slightly more than 10% of the total work called for by the parties' contract." (emphasis original). Appellants contend Pavecon, as the party seeking affirmative relief on a breach of contract claim, had the burden of proof at trial to establish that it substantially performed "the entire `scope of work' called for by the contract." Appellants assert that "[d]espite being instructed that Pavecon's substantial performance had to be judged against the entire contracted-for scope of work, and notwithstanding the uncontested evidence at trial (including Pavecon's own testimony) establishing that Pavecon performed no more than 20% of the work called for by the Contract, the jury returned an affirmative finding that Pavecon did, in fact, substantially perform its obligations under the Contract." Appellants argue that because the evidence at trial was legally and factually insufficient to support that finding, this Court should reverse the trial court's judgment and render judgment in their favor.
Pavecon responds that "[appellants'] position that a party to a construction contract cannot recover on the contract absent proof that it substantially completed every part of the work called for under the contract is not supported by the law." (emphasis original). Pavecon argues it demonstrated, with legally and factually sufficient evidence, that it "substantially complied with the terms of the Contract concerning the pavement of the spectator parking lot."
The instructions in the introductory portion of the jury charge stated, in part, "When words are used in this charge in a sense which varies from the meaning commonly understood, you are given a proper legal definition, which you are bound to accept in place of any other meaning." Question number one of the jury charge asked, "Did Pavecon substantially perform its obligations under the agreement?" As part of that question, the jury was instructed that "to constitute `substantial performance,' the contractor must have in good faith intended to comply with the contract, and shall have substantially done so in the sense that the defects are not pervasive, do not constitute a deviation from the general plan contemplated for the work, and are not so essential that the object of the parties in making the contract and its purpose cannot, without difficulty, be accomplished by remedying them." Additionally, the jury was instructed that such performance "permits only such omissions or deviation from the contract as are inadvertent and unintentional, are not due to bad faith, do not impair the structure as a whole, and are remediable without doing material damage to other parts of the building in tearing down and reconstructing."
The record does not show, as asserted by appellants, that the jury was "instructed that Pavecon's substantial performance had to be judged against the entire contracted-for scope of work." Further, appellants did not object to the lack of such an instruction or request a different legal standard as to substantial performance. Therefore, regardless of the validity of appellants' substantive argument that Pavecon was required to establish that it substantially performed "the entire `scope of work' called for by the contract," such legal standard cannot be used in our review of the evidence to support the jury's finding that Pavecon substantially performed in this case. See Osterberg, 12 S.W.3d at 55; EMC Mortg. Corp., 252 S.W.3d at 869; Hirschfeld Steel Co., Inc., 201 S.W.3d at 286.
In its July 15, 2008 letter to Dallas Raceway, Pavecon stated in part that it "has been and stands ready to complete the total asphalt paving by the end of July if scheduled paving of the track and the remaining parking and access roads can begin with two paving crews Monday July 21st." In its July 17, 2008 letter to Dallas Raceway, Pavecon stated it was "awaiting word" from Dallas Raceway that "the subgrade has been repaired and ready [sic] to resume the paving operation." Further, Pavecon wrote in that letter that (1) it had been notified that Dallas Raceway had placed it "on hold status" in order to "investigate an alternative method to complete the paving scope of the project" and (2) the purpose of its letter was to "verify that we will remain in hold status until further notice." Walker testified it was Pavecon's intent to complete the entire project as described in the contract. He stated (1) Pavecon did not receive any specific direction from Dallas Raceway about what type of "mix design" to use in paving the parking area, (2) RAP is "a standards common" for parking lots and Pavecon doesn't "normally specify it," (3) Pavecon has not experienced any kind of "failures" in using RAP, and (4) the use of RAP is "urged" by TXDOT. Finally, Barnes testified he did not allow Pavecon to finish the "whole job."
We conclude there was more than a scintilla of evidence in the record to support findings by the jury that (1) Pavecon "in good faith intended to comply with the contract," (2) the work done by Pavecon did not contain any "defects" to be remedied, and (3) any "omissions or deviation" from the contract are "inadvertent and unintentional, are not due to bad faith, [and] do not impair the structure as a whole." Therefore, we conclude the evidence was legally sufficient to support the jury's finding of substantial performance by Pavecon. See Formosa Plastics Corp. USA, 960 S.W.2d at 48; King Ranch, Inc., 118 S.W.3d at 751.
With respect to factual sufficiency, (1) Barnes testified Pavecon orally agreed not to use recycled asphalt and (2) Dallas Raceway argued at trial that Pavecon's July 15, 2008 letter requesting owner approval to use RAP proved that use of RAP was not authorized under the contract. However, the contract required that any amendments or modifications were to be in writing. Further, the July 15, 2008 letter from Pavecon addressed owner approval of mix design only for the track. On this record, we cannot conclude the jury's substantial performance finding is so contrary to the evidence as to be clearly wrong and unjust. See Cameron, 158 S.W.3d at 683. We decide against appellants on their two issues.
Additionally, in a footnote in their reply brief, appellants contend Pavecon "offered absolutely no evidence at trial" as to the cost of remedying the defects caused by its errors and omissions, which appellants argue is "a key element of [Pavecon's] claim for damages." That contention was not asserted in appellants' original appellate brief. See Tex. R. App. P. 38.1(f). However, to the extent such contention properly "address[es] a matter in the appellee's brief," see Tex. R. App. P. 38.3, the record shows appellants did not object to question number three of the court's charge, which instructed the jury as to the elements of damages in this case. Therefore, it is the court's charge that measures the sufficiency of the evidence as to elements of damages. Osterberg, 12 S.W.3d at 55; EMC Mortg. Corp., 252 S.W.3d at 869; Hirschfeld Steel Co., Inc., 201 S.W.3d at 286. Appellants do not assert the evidence, as measured against the court's charge, is insufficient to support the jury's findings in question number three.
III. CONCLUSION
We conclude the evidence, measured against the charge of the court at issue, is legally and factually sufficient to support the jury's finding of substantial performance by Pavecon. We decide appellants' two issues against them. The trial court's judgment is affirmed.