Opinion
No. 05-10-00743-CV
07-27-2012
P & E CONTRACTORS, INC., Appellant v. THOMAS BROWN D/B/A B & B CONSTRUCTION, Appelle
Affirmed; Opinion Issued July 27, 2012
On Appeal from the County Court at Law No.1
Dallas County, Texas
Trial Court Cause No. cc-06-15892-a
MEMORANDUM OPINION
Before Justices Bridges, Francis, and Lang
Opinion By Justice Francis
Following a jury trial, P & E Contractors, Inc. appeals the trial court's judgment in favor of Thomas Brown d/b/a B & B Construction. In four issues, P & E claims the trial court erred in rendering judgment in favor of B & B because B & B did not secure jury findings on anticipatory repudiation or on substantial performance. We affirm.
P & E hired B & B as a subcontractor on a street and utility rehabilitation project for the City of Terrell. The parties signed a contract dated May 16, 2006. After B & B began work, it became apparent that some demolition work not previously contemplated would have to be completed before B & B could perform under the contract. When B & B brought this to the attention of both P & E and the city engineer for the City, B & B was instructed by both parties to continue work, including the necessary demolition, and to present a change order for additional cost of the demolition work. P & E received B & B's change orders but refused to submit them to the City. B & B notified both P & E and the City that it would not continue work until it was assured of being reimbursed for the additional work. P & E subsequently informed B & B it had been terminated for abandonment of job.
B & B sued P & E for breach of contract and promissory estoppel. After a three-day jury trial, the trial court rendered judgment in favor of B & B. This appeal followed.
In its first issue, P & E contends the trial court erred in granting B & B judgment because B & B did not secure a jury finding that P & E repudiated the contract. P & E argues B & B only secured a finding that P & E failed to comply with its contractual obligations and did so before B & B failed to comply with its contractual obligations and that this alone does not constitute anticipatory repudiation.
Initially, we note P & E did not raise this complaint in the trial court. In its amended motion to disregard jury answers, P & E requested the trial court disregard the jury's answers to questions 3a, 4, 5, and 6, dealing primarily with damages and agreements in addition to the May 16, 2006 contract. P & E did not object or raise a complaint with respect to the jury's answer to question 2 which dealt with anticipatory repudiation. Furthermore, in its “Objections to Plaintiff's Proposed Judgment and Supplement to Motions to Disregard Jury Answers,” P & E admitted “The Jury returned a verdict for Plaintiff under Anticipatory Repudiation . . ..” Under these circumstances, we conclude P & E has failed to preserve this issue for our review. See Tex. R. App. P. 33.1; see also Holland v. Hayden, 901 S.W.2d 763, 765 (Tex. App.-Houston [14th Dist.] 1995, writ denied).
Even assuming error was not waived, we would conclude, in light of the jury charge in this case, the complaint lacks merit. A trial court must submit in its charge to the jury all questions, instructions, and definitions raised by the pleadings and evidence that will aid the jury in reaching a verdict. Tex. R. Civ. P. 278; Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 663-64 (Tex. 1999). When feasible, jury questions should be in broad form, accompanied by appropriate instructions and definitions. Tex. R. Civ. P. 277; Rodriguez, 995 S.W.2d at 664. When determining whether a particular question could have confused or misled the jury, we “consider its probable effect on the minds of the jury in the light of the charge as a whole.” City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995).
A repudiation or anticipatory breach of a contract occurs when “a party's conduct shows a fixed intention to abandon, renounce, and refuse to perform the contract.” Hunter v. PriceKubecka, PLLC, 339 S.W.3d 795, 802 (Tex. App.-Dallas 2011, no pet.). The Texas Pattern Jury Charge provides the following instruction on anticipatory repudiation:
Failure to comply by Don Davis is excused by Paul Payne's prior repudiation of the same agreement.Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Contracts PJC 101.23 (2010). The pattern jury charge does not provide a question on anticipatory repudiation. See id.
A party repudiates an agreement when he indicates, by his words or actions, that he is not going to perform his obligations under the agreement in the future, showing a fixed intention to abandon, renounce, and refuse to perform the agreement.
In this case, jury question number 1 asked separately whether P & E and B & B failed to comply with the May 16, 2006 contract. If the jury answered “yes” to both, the jury was then instructed to answer jury question number 2:
Jury Question No. 2
Anticipatory Repudiation
A party repudiates an agreement when he indicates, by his words or actions, that he is not going to perform his obligations under the agreement in the future, showing a fixed intention to abandon, renounce, and refuse to perform the agreement.
Failure to comply by P & E Contractors, Inc. is excused if B&B repudiated the agreement prior to P & E Contractor's failure to comply with the same agreement.
Who failed to comply with the May 16, 2006 agreement first?Answer “Thomas Brown” or “P & E Contractors, Inc.”
Having found both P & E and B & B breached the May 16, 2006 agreement, the jury answered “P & E Contractors.” Considering the specific instructions on anticipatory repudiation and the jury charge in its entirety, we conclude this answer constitutes a finding that P & E repudiated the contract. P & E's argument to the contrary lacks merit. We overrule the first issue. P & E's second, third, and fourth issues raise alternative arguments which need not be addressed given our resolution of its first issue. See Tex. R. App. P. 47.1.
We affirm the trial court's judgment.
MOLLY FRANCIS
JUSTICE
100743F.P05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
P & E CONTRACTORS, INC., Appellant
V.
THOMAS BROWN d/b/a B & B CONSTRUCTION, Appellee
No. 05-10-00743-CV
Appeal from the County Court at Law No. 1 of Dallas County, Texas. (Tr.Ct.No. cc-06- 15892-a).
Opinion delivered by Justice Francis, Justices Bridges and Lang participating.
In accordance with this Court's opinion of this date, we AFFIRM the trial court's judgment . We ORDER appellee Thomas Brown d/b/a B & B Construction recover its costs of this appeal from appellant P & E Contractors, Inc.
Judgment entered July 27, 2012.
MOLLY FRANCIS
JUSTICE