Dudley Construction, LTD., Richard Mark Dudley, and Hartford Fire Insurance Company v. ACT Pipe & Supply, Inc. ( 2015 )

ACCEPTED
06-15-00045-cv
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
12/23/2015 5:27:46 PM
DEBBIE AUTREY
CLERK
NO. 06-15-00045-CV
IN THE COURT OF APPEALS FILED IN
6th COURT OF APPEALS
FOR THE SIXTH JUDICIAL DISTRICT TEXARKANA, TEXAS
TEXARKANA, TEXAS 12/28/2015 9:13:00 AM
DEBBIE AUTREY
Clerk
DUDLEY CONSTRUCTION, LTD., RICHARD MARK DUDLEY, AND
HARTFORD FIRE INSURANCE COMPANY v. ACT PIPE & SUPPLY,
INC.
ON APPEAL FROM THE
ST
361 JUDICIAL DISTRICT COURT
BRAZOS COUNTY, TEXAS
CAUSE NO. 12-000281-CV-361
APPELLANTS DUDLEY CONSTRUCTION, LTD., RICHARD MARK DUDLEY,
AND HARTFORD FIRE INSURANCE COMPANY’S BRIEF
T HE S WEARINGEN L AW F IRM
R OBERT A. S WEARINGEN, P.C.
Robert A. Swearingen
State Bar Number 19563050
3002 Texas Avenue South
College Station, Texas 77845-5048
(979) 680-9993 ~ Telephone
(979) 680-9991 ~ Facsimile
robert@swearingenlaw.com
ATTORNEY FOR APPELLANTS
DUDLEY CONSTRUCTION, LTD., RICHARD
MARK DUDLEY, AND HARTFORD FIRE
INSURANCE COMPANY
ORAL ARGUMENT REQUESTED
IDENTITY AND PARTIES OF COUNSEL
PARTIES COUNSEL
Appellants
Dudley Construction, Ltd. Robert A. Swearingen,
Richard Mark Dudley SBN 19563050
T HE S WEARINGEN L AW F IRM R OBERT A. S WEARINGEN, P.C.
Hartford Fire Insurance Company 3002 Texas Avenue South
College Station, Texas 77845-5048
(979) 680-9993 ~ Telephone
(979) 680-9991 ~ Facsimile
robert@swearingenlaw.com
Appellee
ACT Pipe & Supply, Inc. Lisa M. Norman
W. Jason Walker
A NDREWS M YERS, P.C.
3900 Essex Lane, Suite 800
Houston, Texas 77027
lnorman@andrewsmyers.com
jwalker@andrewsmyers.com
Other Parties in Trial
R.M. Dudley Construction, Inc., Robert A. Swearingen
now known as SBN 19563050
Dudley Construction Management T HE S WEARINGEN L AW F IRM
Services, Ltd. R OBERT A. S WEARINGEN, P.C.
R.M. Dudley Holdings 2, L.L.C. 3002 Texas Avenue South
R.M. Dudley Holdings, L.L.C. College Station, Texas 77845-5048
(979) 680-9993 ~ Telephone
(979) 680-9991 ~ Facsimile
robert@swearingenlaw.com
-i-
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUES PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Issue One: The trial court erred by granting JNOV on ACT’s suit on sworn
account on the Tabor Road Project. . . . . . . . . . . . . . . . . . . . . 13
Issue Two: The trial court erred by granting JNOV on ACT’s Misapplication
of Trust Funds Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Issue Three: The evidence is legally and factually insufficient to support the
jury’s answers that ACT Pipe & Supply, Inc. perfected its bond
claim as to Dudley Construction, Ltd. and Hartford Fire Insurance
Company on the Reclaimed Water Project and Tabor Road
Project. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Issue Four: The trial court erred to the extent that it based its award against
Dudley Construction, Ltd. and Hartford Fire Insurance Company
on ACT’s payment bond claim. . . . . . . . . . . . . . . . . . . . . . . . 23
Issue Five: The trial court erred by awarding attorney fees to ACT. . . . . 23
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Issue Six: The trial court erred by awarding ACT the entire amount of
attorney’s fees requested by ACT because ACT did not segregate
its attorney’s fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Issue Seven: The evidence is legally and factually insufficient to support the
amount of attorney’s fees awarded because they were not
reasonable or necessary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Issue Eight: The trial court erred by failing to file requested findings of fact
and conclusions of law.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Issue Nine: The trial court erred by directing a verdict and refusing to submit
jury questions on Dudley Construction, Ltd.’s fraud claim.. . 41
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
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INDEX OF AUTHORITIES
Cases
A.D. Willis Co., Inc./Metal Bldg. Components, Inc. v. Metal Bldg. Components,
Inc., 2000 WL 1508500 (Tex. App.–Austin 2000, pet. denied).. . . . . . . . . . . . . . 33
Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768 (Tex. 2009).. . . . . 41
Arthur Anderson & Company v. Perry Equipment Corp., 945 S.W.2d 812 (Tex.
1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Bradf. v. Vento, 48 S.W.3d 749 (Tex. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . 17
Bluebonnet Exp., Inc. v. Employers Ins. of Wausau, 651 S.W.2d 345 (Tex.
App.–Houston [14 th Dist.] 1983, writ ref’d n.r.e.).. . . . . . . . . . . . . . . . . . . . . . . . . 14
Cherne Indus. v. Magallanes, 763 S.W.2d 768 (Tex 1989).. . . . . . . . . . . . . . . . . 40
Chilton Ins. Co. v. Pate Enterprises, Inc., 930 S.W.2d 877, 886 (Tex. App.–San
Antonio 1996, writ denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005).. . . . . . . . . . . . . . . . . . . . . 44
Croucher v. Croucher, 660 S.W.2d 55 (Tex. 1983).. . . . . . . . . . . . . . 22, 27, 30, 39
Epps v. Fowler, 351 S.W.3d 862 (Tex.2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194 (Tex. 2011).. . . . . . . . 41
Fleming & Associates, L.L.P. v. Barton, 425 S.W.3d 560 (Tex. App.–Houston [14 th
Dist.] 2014, review denied, rehearing on petition for review denied).. . . . . . . . . . 26
Formosa Plastics Corp. USA v. Presidio Engineers & Constractors, Inc., 960
S.W.2d 41 (Tex. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Fort Bend Cty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392 (Tex. 1991).. 15, 16, 18
-iv-
Ganz v. Lyons Partnership, L.P., 173 F.R.D. 173 (N.D. Texas, Dallas Division
1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Garza v. Alviar, 395 S.W.2d 821 (Tex. 1965).. . . . . . . . . . . . . . . . . . 22, 28, 30, 39
Garza v. Cantu, 431 S.W.3d 96 (Tex. App.–Houston 2013, pet. denied).. . . . . . 19
Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261 (Tex. 2014).. . . 21, 27, 29, 38
Green Intern., Inc. v. Solis, 951 S.W.2d 384 (Tex. 1997).. . . . . . . . . . . . . . . . . . . 35
Hermann Hosp. v. Vardemann, 775 S.W.2d 866 (Tex. App.–Houston [1 st Dist.]
1989, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Hill v. Heritage Resources, Inc., 964 S.W.2d 89 (Tex. App.–El Paso 1997, pet.
denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
HMC Hotel Props, II L.P. v. Keystone-Tex Prop. Holding Corp., 439 S.W.3d 910
(Tex. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 27, 30, 38
Hoffman v. L&M Arts, 2015 WL 1000838
(N.D. Texas, Dallas Division 2015).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
IKB Indus. v. Pro-Line Corp., 938 S.W.2d 440 (Tex. 1997).. . . . . . . . . . . . . . . . 40
Italian Cowboy Partners v. Prudential Ins., 341 S.W.3d 323 (Tex. 2011).. . 41, 42
Johnson & Higgins v. Kenneco Energy, Inc., 962 S.W.2d 507 (Tex. 1998).. . . . 43
Jones v. Ben Maines Air Conditioning, Inc., 621 S.W.2d 437 (Tex. Civ.
App.–Texarkana 1981, no writ).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Larrison v. Catalina Design, 2011 WL 582730 (Tex. App.–Fort Worth 2011, no
pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Larry F. Smith Inc. v. The Weber Co., Inc., 110 S.W.3d 611 (Tex. App.–Dallas
2003, pet. denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
-v-
Liberty Mut. Fire Ins. v. Laca, 243 S.W.3d 791
(Tex. App.–El Paso 2007, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Lindley v. McKnight, 349 S.W.3d 113 (Tex. App-Fort Worth 2011, no pet.).. . 35
Neuro-Developmental Associates of Houston v. Corporate Pines Realty Corp., 908
S.W.2d 26 (Tex. App.–Houston [1 st Dist.] 1995, pet. denied).. . . . . . . . . . . . . . . 44
Osterberg v. Peca, 12 S.W.3d 31, 54 (Tex. 2000).. . . . . . . . . . . . . . . . . . . . . . . . 17
Regal Finance Co., Ltd. v. Tex Star Motors, Inc., 355 S.W.3d 595
(Tex. 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Senegal v. Payne, 2015 WL 4053504 (Tex. App.-Beaumont 2015, no pet.).. . . . 18
Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545 (Tex. 2009).. . . . . . . . . . . . . . 37
Southwestern Bell Telephone Co. v. Garza, 164 S.W.3d 607 (Tex. 2004).. . . . . . 17
Spencer v. Eagle Star Ins. Co. of America, 876 S.W.2d 154 (Tex. 1994).. . . . . . 16
Tanner v. Nationwide Mut. Fire Ins., 289 S.W.3d 828 (Tex. 2009).. . . . . . . 15, 16
Trenholm v. Ratcliff, 646 S.W.2d 927 (Tex. 1983).. . . . . . . . . . . . . . . . . . . . . . . . 42
Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006).. . . . . . . . 35, 36
Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711 (Tex. 2001).. . . . . . . . . . . . . . . 17
Young v. Qualls, 223 S.W.3d 312 (Tex. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Statutes
Texas Business Organizations Code §5.055.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Texas Civil Practice & Remedies Code §38.001.. . . . 11, 24, 25, 26, 27, 28, 30, 31
Texas Civil Practice & Remedies Code §38.002.. . . . . . . . . . . . . 12, 28, 29, 30, 31
-vi-
Texas Government Code §2253.041.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 21
Texas Government Code §2253.044.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Texas Government Code §2253.074.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 32, 33
Texas Property Code §162.001.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Trial Rules, Appellate Rules, and Rules of Evidence
Texas Rule of Civil Procedure §296.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 40
Texas Rule of Civil Procedure §297.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 40
Texas Rule of Civil Procedure §301.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 18
Texas Pattern Jury Charges
Texas Pattern Jury Charges–Business, Consumer, Insurance, & Employment
(2014)
100.12.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
105.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
105.3.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
115.20.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
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STATEMENT OF THE CASE
Plaintiff/Appellee ACT Pipe & Supply, Inc. (hereinafter “ACT”) sued
Defendants/Appellants Dudley Construction, Ltd., Richard Mark Dudley, and
Hartford Fire Insurance Company (hereinafter collectively referred to as “Appellants”)
and Defendants R.M. Dudley Construction, Inc., R.M. Dudley Holdings, L.L.C., R.M.
Dudley Holdings 2, L.L.C. for suit on sworn account, payment bond claim, prompt
payment act, misapplication of trust funds, fraud and misrepresentation, and alter ego.
CR 913-1002. Dudley Construction, Ltd. asserted counter-claims for breach of
contract and fraud against ACT. CR 423-427. After a jury trial, the trial court
directed a verdict for Defendants R.M. Dudley Construction, Inc., and R.M. Dudley
Holdings, L.L.C., R.M. Dudley Holdings 2, L.L.C. CR 1150-1154; 2 Supp. CR 7-36,
42-66. The jury made various findings. 2 Supp. CR 42-66. The trial court adopted
some of those findings but granted a judgment notwithstanding the verdict in favor of
ACT on others. 2 Supp. CR 42-66; CR 1150-1154. The issue of attorney’s fees was
tried to the bench, and the trial court’s award of attorney’s fees to ACT was included
in the judgment. CR 1033, 1150-1154. The trial court denied Appellants’ motion for
new trial. CR 1159-1172; CR 1175.
1
ISSUES PRESENTED FOR REVIEW
Issue One: The trial court erred by granting JNOV on ACT’s suit on sworn
account on the Tabor Road Project.
Issue Two: The trial court erred by granting JNOV on ACT’s Misapplication
of Trust Funds Claim.
Issue Three: The evidence is legally and factually insufficient to support the
jury’s answers that ACT Pipe & Supply, Inc. perfected its bond
claim as to Dudley Construction, Ltd. and Hartford Fire Insurance
Company on the Reclaimed Water Project and Tabor Road
Project.
Issue Four: The trial court erred to the extent that it based its award against
Dudley Construction, Ltd. and Hartford Fire Insurance Company
on ACT’s payment bond claim.
Issue Five: The trial court erred by awarding attorney fees to ACT.
Issue Six: The trial court erred by awarding ACT the entire amount of
attorney’s fees requested by ACT because ACT did not segregate
its attorney’s fees.
Issue Seven: The evidence is legally and factually insufficient to support the
amount of attorney’s fees awarded because they were not
reasonable or necessary.
Issue Eight: The trial court erred by failing to file requested findings of fact
and conclusions of law.
Issue Nine: The trial court erred by directing a verdict and refusing to submit
jury questions on Dudley Construction, Ltd.’s fraud claim.
2
STATEMENT OF FACTS
Dudley Construction, Ltd. was the general contractor on the Tabor-16th St. &
N Texas GW Storage Tanks (5 MG Site) project for the City of Bryan (hereinafter
referred to as the “Tabor Road Project”). D. Ex. 1. ACT provided a bid to Dudley
Construction, Ltd. to provide materials for the Tabor Road Project. 6 RR 48; D. Ex.
2. ACT’s initial bid was too high. 6 RR 59. ACT provided a bid with lower prices
to Dudley Construction, Ltd. 6 RR 59; P. Ex. 18. Thereafter, ACT issued a purchase
order to the manufacturer for push-on or slip joint pipe. 6 RR 59-60; (push-on pipe
and slip joint pipe are different terms for the same thing and that type of pipe will be
referred to hereafter as “slip joint pipe.” 6 RR 62). The bid price provided by ACT
to Dudley Construction, Ltd. was based upon the provision of slip joint pipe. 6 RR
60, 74. Mark Stroud, the employee of ACT that provided the estimate for the Tabor
Road Project, determined that concrete blocking was the restraint mechanism that was
required by the City of Bryan on that Project. 6 RR 48, 61-62. The prices provided
by ACT were therefore based on the use of concrete blocking as the restraining
mechanism. 6 RR 62.
Dudley Construction, Ltd. requested submittals from ACT. 6 RR 63.
Submittals provide the general information of the product that is being supplied. 6 RR
64. The purpose of a submittal is to make sure that the City of Bryan is going to
3
approve of the supply that is about to be put in their system and to make sure everyone
is on the same page. 6 RR 88.
ACT provided submittals for slip joint pipe. 6 RR 64. The submittal for slip
joint pipe was rejected by the City of Bryan because the City of Bryan wanted
restrained joint pipe. 6 RR 64; 6 RR 85; D. Ex. 13. Mark Stroud provided another
submittal with restrained joint pipe. 6 RR 65; 6 RR 86. This resubmittal was
approved by the City of Bryan. 6 RR 65; D. Ex. 14.
After Dudley Construction, Ltd. informed Mark Stroud that it was ready for the
pipe to be delivered, Mark Stroud contacted the pipe manufacturer for shipment of the
restrained joint pipe. 6 RR 66-67. However, the pipe that was shipped to the job site
was the previously rejected slip joint pipe. 6 RR 64, 67; D. Ex. 13.
About a week after the previously rejected slip joint pipe was delivered, Mark
Stroud received an email from Dudley Construction, Ltd. stating that it was believed
that the delivered pipe was not properly ordered because it wasn’t the restrained joint
pipe. 6 RR 70; D. Ex. 26. Even though restrained joint pipe is more expensive than
slip joint pipe, Mark Stroud told Dudley Construction, Ltd. that he would obtain the
restrained joint pipe. 6 RR 73. Mark Stroud made numerous statements to Dudley
Construction, Ltd. that delivery of the restrained joint pipe was imminent. 7 RR 134-
139; D. Ex. 15-23; 7 RR 234. Mark Stroud received numerous follow-up emails from
4
Dudley Construction, Ltd. regarding delivery of the restrained joint pipe and did not
inform Dudley Construction, Ltd. that it in fact had not been ordered. 7 RR 134-139;
D. Ex. 15-23.
Eventually, Mark Stroud involved his supervisor, Curt Murray. 6 RR 74. Mr.
Murray determined that the plans and specifications actually did not require restrained
joint pipe and that the pipe that was delivered was the pipe that was specified in the
plans and specifications for the job. 6 RR 75. Mr. Murray sent Dudley Construction,
Ltd. an email explaining ACT’s position. P. Ex. 23; 7 RR 40. ACT was first notified
on April 26, 2011 that the pipe that was delivered was rejected by the City of Bryan,
and ACT did not provide an argument that the pipe that was delivered was the type
of pipe called for in the plans until July 6, 2011. P. Ex. 23; D. Ex. 26. ACT had
instead been promising delivery of the approved restrained joint pipe, and Dudley
Construction, Ltd., relying on those promises, told the City of Bryan that restrained
joint pipe was going to be delivered. 7 RR 134-139; D. Ex. 15-23; 7 RR 233-234.
Upon receipt of ACT’s email stating its position that the pipe that had been
delivered was the type called for in the plans and specifications, Richard Mark Dudley
lobbied the City of Bryan to use the delivered slip joint pipe. 7 RR 223; P. Ex. 23; P.
Ex. 32. Those discussions with the City of Bryan to use that delivered slip joint pipe
went from July 6, 2011 to September 21, 2011. 7 RR 223. Richard Mark Dudley
5
sought further information and argument from Curt Murray to convince the City of
Bryan that the delivered pipe was the type called for in the plans and specifications,
but Curt Murray was unresponsive to those requests. 7 RR 224-227.
Eventually, the pipe that was delivered was ultimately used on the Tabor Road
Project, but subject to the use of externally restrained joints. 6 RR 81; 7 RR 74; 7 RR
229. Concrete blocking as figured by ACT was not used. 7 RR 74; 6 RR 62. Dudley
Construction, Ltd. had to hire and pay for an engineer for the delivered pipe to be
used. 7 RR 75-76. The pipe issue caused delays on the Tabor Road Project. 7 RR
160.
While the debate regarding the pipe was ongoing, Dudley Construction, Ltd.
and ACT entered into a Purchase Order agreement. D. Ex. 3 (12 RR 16); 7 RR 54, 92,
245. The Purchase Order was the only signed contract on the Tabor Road Project. D.
Ex. 3. However, ACT kept sending invoices with prices that did not conform to the
prices provided for in the Purchase Order. D. Ex. 3; 7 RR 245; 7 RR 33-34; P. Ex. 37;
P. Ex. 4. ACT and Dudley also disagreed on various credits and other prices charged
on various invoices submitted by ACT. D. Ex. 6-12; 7 RR 173-180.
Dudley Construction, Ltd. was also the general contractor on the Water
Reclamation Phase I Project for the City of College Station (hereinafter referred to as
the “Reclaimed Water Project”). P. Ex. 15 (12 RR 110). ACT and Dudley disagreed
6
on various credits and other prices charged on various invoices submitted by ACT on
that project as well. D. Ex. 28; D. Ex. 5; 7 RR 170-172.
Despite offers by Dudley Construction, Ltd. to pay invoices if the prices were
corrected, ACT instead filed suit against R.M. Dudley Construction, Inc., R.M.
Dudley Holdings 2, LLC, and Hartford Fire Insurance Company. CR 5-87. R.M.
Dudley Construction, Inc. and R.M. Dudley Holdings 2, LLC filed general denials and
verified denials, asserting, among other things, that they were not the correct
construction companies to be sued. CR 88-94; 7 RR 245; 6 RR 136; See also 9 RR
101 (that statement was excluded from the jury trial, but the trial court heard it). ACT
filed its First Amended Original Petition adding Richard Mark Dudley, Dudley
Construction, Ltd., and R.M. Dudley Holdings, LLC to the suit. CR 95-201. Richard
Mark Dudley filed a general denial. CR 289-294. Dudley Construction, Ltd. and
R.M. Dudley Holdings, LLC filed general denials and verified denials disputing the
amounts alleged by ACT. CR 295-301. Dudley Construction, Ltd. asserted counter-
claims for breach of contract and fraud against ACT. CR 423-427. ACT filed a
Second Amended Original Petition adding additional causes of action. CR 913-1002.
ACT’s Second Amended Original Petition asserted claims of suit on sworn account
and Prompt Pay Act against R.M. Dudley Construction, Inc. and Dudley Construction,
Ltd, claims of fraud and misapplication of trust funds against R.M. Dudley
7
Construction, Inc., Dudley Construction, Ltd., and Richard Mark Dudley, and
payment bond claims against R.M. Dudley Construction, Inc., Dudley Construction,
Ltd., and Hartford Fire Insurance Company. CR 913-1002. ACT also claimed R.M.
Dudley Construction, Inc., Dudley Construction, Ltd., RM Dudley Holdings, LLC,
and RM Dudley Holdings 2, LLC were alter egos of each other. CR 913-1002. ACT
sought $143,714.79 in damages–$19,642.82 for the Reclaimed Water Project and
$124,071.97 for the Tabor Road Project. CR 913-1002; CR 931; CR 932.
On November 17, 2014, the case went to trial. 12 RR 1. Before the case was
submitted to the jury, the trial court directed a verdict on all of ACT’s claims against
R.M. Dudley Construction, Inc., R.M. Dudley Holdings, LLC, and R.M. Dudley
Holdings 2, LLC. CR 1150-1154; 2 Supp. CR 7-36, 42-66. The trial court also
directed a verdict against ACT on ACT’s fraud claims and alter ego claims. CR 1150-
1154; 2 Supp. CR 7-36, 42-66. The trial court directed a verdict against Dudley
Construction, Ltd. on its fraud claim. CR 1150-1154; 2 Supp. CR 42-66; 2 Supp. 37-
41. Attorney’s fees were to be submitted to the trial court. CR 1033. The remaining
issues were submitted to the jury. 2 Supp. CR 42-66. The jury provided answers to
the trial court’s charge. 2 Supp. CR 42-66. The jury found that ACT should recover
on its sworn account claim on the Reclaimed Water Project in the amount of
$14,214.20, not the $19,642.82 demanded by ACT. 2 Supp. CR 52; CR 913-1002.
8
The jury found that the prices charged by ACT on the Tabor Road Project were not
in accordance with the parties’ agreement by their clear answer of “No” to that
inquiry. 2 Supp. CR 50. The jury rejected ACT’s Prompt Payment Act claim. 2
Supp. CR 53. The jury found that ACT perfected its payment bond claims in the
amount of $14,214.20 as to the Reclaimed Water Project and $110,629.70 on the
Tabor Road Project, not the $124,071.97 demanded by ACT. 2 Supp. CR 56-57; CR
913-1002. The jury found no damages on ACT’s misapplication of trust fund claim.
2 Supp. CR 63. The jury also found that ACT failed to comply with an agreement
with Dudley Construction, Ltd., but that such failure to comply was excused. 2 Supp.
CR 64-65.
ACT filed a motion to disregard some of the jury’s answers, and the trial court
granted that motion. CR 1026-1139; CR 1150-1154. The trial court granted a
judgment notwithstanding the verdict ("JNOV") on ACT's suit on sworn account
claim on the Tabor Road Project and found that the evidence conclusively proved that
the prices charged by ACT were in accordance with the parties’ agreement and
disregarded the jury’s answer that they were not. CR 1152. The trial court also
granted a JNOV on ACT’s misapplication of trust fund claim. CR 1152. The trial
court found that damages were uncontroverted and conclusively proven in the amount
of $14,214.20 for the Reclaimed Water Project and $110,629.70 for the Tabor Road
9
Project, and the Court substituted those amounts for the jury's answer of zero
damages. CR 1152.
The trial court entered a final judgment against Dudley Construction, Ltd.,
Richard Mark Dudley, and Hartford Fire Insurance Company and for ACT in the
amount of $124,483.90. The trial court also awarded ACT its attorney’s fees in the
amount of $131,823.99.
Appellants timely filed requests for findings of fact and conclusions of law,
notice of past due findings of fact and conclusions of law, and a motion for new trial.
CR 1155-1156; CR 1173-1174; CR 1159-1172. Appellants timely filed their notice
of appeal. CR 1195-1196.
SUMMARY OF THE ARGUMENT
The trial court erred by granting a JNOV on ACT’s suit on sworn account claim
on the Tabor Road Project. The jury correctly found that ACT did not prove that the
prices ACT charged on the Tabor Road Project were in accordance with the agreement
between ACT and Dudley Construction, Ltd., and the trial court improperly
disregarded the jury’s answer.
The trial court erred by granting a JNOV disregarding the jury’s proper award
of zero damages and imposing damages of $110,629.70 for the Tabor Road Project
and $14,214.20 for the Reclaimed Water Project on ACT’s Misapplication of Trust
10
Funds claim against Dudley Construction, Ltd. and Richard Mark Dudley. The
evidence supports the jury’s findings, and, assuming arguendo that the evidence did
not, the trial court erred by determining the amount of damages. A court is not
authorized to substitute its judgment and replace the jury's assessment of the amount
of money necessary to reasonably compensate the plaintiff for its injuries when the
amount of damages are disputed.
The jury’s finding that ACT perfected its bond claim on the Reclaimed Water
Project and Tabor Road Project is not supported by the evidence because ACT only
provided one required written notice to Dudley Construction, Ltd. and that one notice
was defective because it did not contain a sworn statement of account.
Even if ACT did perfect its payment bond claims, to the extent that the trial
court found that ACT’s payment bond claim created an independent entitlement for
ACT to receive payment, the trial court committed error because payment bond claims
do not create an independent entitlement to receive payment.
The trial court erred by awarding attorney’s fees to ACT. ACT cannot recover
attorney’s fees under §38.001 of the Texas Civil Practice & Remedies Code against
Richard Mark Dudley and the Hartford Fire Insurance Company because the pleadings
and the evidence do not support that claim. ACT cannot recover against Dudley
Construction, Ltd. because Dudley Construction, Ltd. is a limited partnership, not an
11
individual or corporation as required for recovery under the statute. ACT also did not
provide the demand letters required by Texas Civil Practice & Remedies Code
§38.002. ACT cannot recover attorney’s fees under the provisions of a contract
because the signed agreement between ACT and Dudley Construction, Ltd. is silent
as to attorney’s fees. There is no contract between ACT and Hartford Fire Insurance
Company or Richard Mark Dudley. Recovery of attorney’s fees under a Payment
Bond Claim pursuant to Texas Government Code Chapter 2253.074 is only applicable
to recovery of fees against sureties. The pleadings do not support any award of
attorney’s fees on ACT’s misapplication of trust fund claim, and if they did, attorney’s
fees cannot be recovered on a misapplication of trust fund claim. Finally, to the extent
that this Court sustains Appellants’ points of error on ACT’s causes of action, ACT
cannot recover attorney’s fees on those causes of action.
The trial court erred by awarding ACT the entire amount of attorney's fees
requested by ACT because ACT did not segregate its attorney's fees.
The trial court erred by awarding ACT the entire amount of attorney’s fees
requested by ACT because such amount was not reasonable or necessary.
The trial court erred because it failed to file requested findings of fact and
conclusions of law. Appellants were harmed because they were forced to attack all
the possible grounds supporting the judgment instead of the grounds actually found
12
by the trial court.
The trial court erred by directing a verdict and refusing to submit jury questions
on Dudley Construction, Ltd.’s fraud claim because there was evidence to submit
Dudley Construction, Ltd.’s cause of action for fraud to the jury.
ARGUMENT
Issue One: The trial court erred by granting JNOV on ACT’s suit on sworn
account on the Tabor Road Project.
The trial court erred by granting a JNOV on ACT’s suit on sworn account claim
on the Tabor Road Project. CR 1152. The jury correctly found that ACT did not
prove that the prices ACT charged on the Tabor Road Project were in accordance with
the agreement between ACT and Dudley Construction, Ltd. 2 Supp. CR 50. The trial
court improperly disregarded the jury’s answer. CR 1152.
The essential elements of a common law cause of action on sworn account are
(1) a sale and delivery of the merchandise; (2) that the amount of the account is just,
that is, that the prices are charged in accordance with an agreement or in the absence
of an agreement, that they are the usual customary and reasonable prices for that
merchandise; and, (3) that the amount is unpaid. Jones v. Ben Maines Air
Conditioning, Inc., 621 S.W.2d 437, 439 (Tex. Civ. App.–Texarkana 1981, no writ).
Therefore, to prevail on its claim of suit on sworn account, the prices charged by ACT
must have been in accordance with the express contract between the parties.
13
Bluebonnet Exp., Inc. v. Employers Ins. of Wausau, 651 S.W.2d 345, 353-354 (Tex.
App.–Houston [14 th Dist.] 1983, writ ref’d n.r.e.).
The jury correctly found that ACT did not prove that the prices ACT charged
were in accordance with the agreement between ACT and Dudley Construction, Ltd.
2 Supp. CR 50. The amount ACT claimed was unpaid for the Tabor Road Project was
$124,071.97. CR 932; 7 RR 33-34; P. Ex. 37; P. Ex. 4. ACT based its claim for that
amount on a unit price for 36" DI pipe of $109.71 per foot and a unit price for 30" DI
pipe of $82.00 per foot. P. Ex. 4 (12 RR 26-27). Those prices were never agreed to.
6 RR 59. The proper prices for that pipe were contained in the signed Purchase Order
agreement. D. Ex. 3; 7 RR 54, 92, 245. The unit price for 36" DI pipe in that
Purchase Order was $95.00 per foot, and the unit price for 30" DI pipe was $74.53 per
foot. D. Ex. 3; 6 RR 99. The Purchase Order was the only signed contract in this
case. D. Ex. 3. ACT could not provide any evidence as to why the higher pipe prices
were used versus those in the signed Purchase Order.1
The trial court erred by granting JNOV because the evidence set forth above
supports the jury’s finding that the prices were not charged in accordance with the
1
ACT alleged that the prices were adjusted to make up some credit that was given on the
College Station Reclaimed Water Project. 6 RR 101. However, nowhere in the documentation
of the College Station Reclaimed Water Project does it show that some form of credit was given
to Dudley Construction, Ltd. 6 RR 105. ACT could not explain where the alleged credit
appeared. 7 RR 66-67. ACT could not provide the amount of the alleged credit. 6 RR 124; 7 RR
64, 67, 70.
14
agreement between ACT and Dudley Construction, Ltd. A JNOV is only proper when
a directed verdict would have been proper. Tex. R. Civ. P. 301; Fort Bend Cty.
Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991). A JNOV is reviewed
under a no-evidence standard, meaning that the Court is to credit evidence favoring
the jury verdict if reasonable jurors could, and disregard contrary evidence unless
reasonable jurors could not. Tanner v. Nationwide Mut. Fire Ins., 289 S.W.3d 828,
830 (Tex. 2009). The Court must uphold the jury's finding if more than a scintilla of
competent evidence supports it. Id. The evidence did not conclusively prove that the
prices charged by ACT were in accord with the express contract between the parties,
and a reasonable jury was free to think that they were not. Id.
The prices charged by ACT were not in accord with the express contract
between the parties–the signed Purchase Order. 7 RR 173. ACT therefore failed to
prove all of the elements on its suit on sworn account on the Tabor Road Project. The
jury’s finding that ACT did not prove that the prices ACT charged on the Tabor Road
Project were in accordance with the agreement between ACT and Dudley
Construction, Ltd. was correct. 2 Supp. CR 50. The trial court erred by disregarding
that finding of the jury and changing the jury’s “No” answer to “Yes.” 2 Supp. CR
50; CR 1152. To the extent the trial court then used the later answer of $110,629.70,
the trial court committed error in that the jury was instructed not to answer that
15
question. 2 Supp. CR 50-52; See Spencer v. Eagle Star Ins. Co. of America, 876
S.W.2d 154, 157 (Tex. 1994)(a question is immaterial when it has been rendered
immaterial by other findings).
Issue Two: The trial court erred by granting JNOV on ACT’s Misapplication
of Trust Funds Claim
The trial court erred by granting a JNOV disregarding the jury’s proper award
of zero damages and imposing damages of $110,629.70 for the Tabor Road Project
and $14,214.20 for the Reclaimed Water Project on ACT’s Misapplication of Trust
Funds claim against Dudley Construction, Ltd. and Richard Mark Dudley. 2 Supp.
CR 63; CR 1152. The evidence supports the jury’s findings, and, assuming arguendo
that the evidence did not, the trial court erred by determining the amount of damages.
A. The evidence supports the jury’s finding of zero damages.
A JNOV is only proper when a directed verdict would have been proper. Tex.
R. Civ. P. 301; Fort Bend Cty. Drainage Dist. 818 S.W.2d at 394. A JNOV is
reviewed under a no-evidence standard, meaning that the Court is to credit evidence
favoring the jury verdict if reasonable jurors could, and disregard contrary evidence
unless reasonable jurors could not. Tanner, 289 S.W.3d at 830. The Court must
uphold the jury's finding if more than a scintilla of competent evidence supports it. Id.
Thus, to disregard the jury’s finding of zero damages, the evidence must conclusively
prove that the damages were greater than zero. 2 Supp. CR 63; See Tanner, 289
16
S.W.3d at 830. Evidential sufficiency must be measured against the jury charge.
Regal Finance Co., Ltd. v. Tex Star Motors, Inc., 355 S.W.3d 595, 601 (Tex. 2010);
Southwestern Bell Telephone Co. v. Garza, 164 S.W.3d 607; 619-620 (Tex. 2004);
Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711 (Tex. 2001), 727; Bradford v. Vento,
48 S.W.3d 749, 756 (Tex. 2001); Osterberg v. Peca,12 S.W.3d 31, 54 (Tex. 2000).
The jury was asked “What sum of money, if any, if paid now in cash, would fairly
and reasonably compensate ACT Pipe & Supply, Inc. for its damages, if any, that were
proximately caused by such misapplication of trust funds?” 2 Supp. CR 63. In
response, the jury found that Dudley Construction, Ltd. and Richard Mark Dudley did
not proximately cause any damages to ACT from a misapplication of trust funds. 2
Supp. CR 63.
When viewed in the light most favorable to the verdict, there was more than a
scintilla of evidence upon which the jury could have made that finding. The evidence
shows that ACT did not suffer any damages because there was no loss of the
construction funds–they were held by Dudley Construction, Ltd. because there was
a dispute between the parties due to ACT’s overcharges as found by the jury. 6 RR
136; 7 RR 170-180; 7 RR 245; 2 Supp. CR 52; CR 913-1002; CR 56-57; CR 913-
1002. Because there is more than a scintilla of evidence to support the jury’s award
of zero damages, the trial court erred by disregarding the jury’s verdict.
17
B. Assuming arguendo that the evidence did not support the jury’s finding
of zero damages, the trial court erred by determining the amount of
damages.
Although the jury’s verdict was proper, assuming arguendo that it was not, the
trial court still could not grant a JNOV and find damages were uncontroverted and
conclusively proven in the amount of $14,214.20 for the Reclaimed Water Project and
$110,629.70 for the Tabor Road Project. A judgment notwithstanding the verdict is
only proper when a directed verdict would have been proper. Tex. R. Civ. P. 301;
Fort Bend Cty. Drainage Dist., 818 S.W.2d at 394. To support the trial court’s JNOV,
the record must conclusively establish that the jury could reach only one decision on
the amount that ACT was damaged and that no reasonable factfinder would conclude
from the record that ACT was damaged in any other amount. Senegal v. Payne, 2015
WL 4053504, *2 (Tex. App.-Beaumont 2015, no pet.). A court is not authorized to
substitute its judgment and replace the jury's assessment of the amount of money
necessary to reasonably compensate the plaintiff for its injuries when the amount of
damages are disputed. Senegal, 2015 WL 4053504 *3. In such a case, a trial court
may grant a new trial if a jury's damage award is “manifestly too small or too large,”
not a JNOV. Id.; Tex.R. Civ. P. 320. Although Dudley Construction, Ltd. is unable
to decipher the trial court’s reasoning, the trial court clearly substituted its judgment
on damages for that of the jury by rendering a JNOV. See Senegal, 2015 WL
18
4053504 *3; See also Garza v. Cantu, 431 S.W.3d 96, 108 (Tex. App.–Houston 2013,
pet. denied). The trial court therefore erred by disregarding the jury’s verdict and
determining the amount of damages itself.
Issue Three: The evidence is legally and factually insufficient to support the
jury’s answers that ACT Pipe & Supply, Inc. perfected its
bond claim as to Dudley Construction, Ltd. and Hartford Fire
Insurance Company on the Reclaimed Water Project and
Tabor Road Project.
The jury’s finding that ACT perfected its bond claim on the Reclaimed Water
Project and Tabor Road Project (and the trial court’s incorporation of that finding into
its Final Judgment) is not supported by the evidence. 2 Supp. CR 56; CR 1152. To
perfect any payment bond claims, ACT had to give written notice to Dudley
Construction, Ltd. and Hartford Fire Insurance Company. Tex. Gov’t Code
2253.041(b). The notice must contain a sworn statement of account. Tex. Gov’t Code
2253.041(c). The notice must also name the party to whom the labor or material was
provided or delivered. Tex. Gov’t Code 2253.044. The jury’s instructions set forth
these requirements. 2 Supp. CR 54-55. Because ACT did not meet those
requirements, ACT did not perfect its payment bond claims.
A. ACT did not perfect payment bond claims on the Reclaimed Water
Project
None of the notices relating to the Reclaimed Water Project were sent to Dudley
Construction, Ltd. 6 RR 140-141; 6 RR 144-145; P. Ex. 5-8 (12 RR 39-67). They
19
were all addressed to RM Dudley Construction, Ltd.–an entity that was not a party to
this litigation, not the contractor on the Reclaimed Water Project, and not listed on the
payment bond for the Reclaimed Water Project, a copy of which was possessed by
ACT. 6 RR 140-141; 6 RR 144-145; P. Ex. 5-8 (12 RR 39-67); CR 913-914; P. Ex.
15 (12 RR 109); 7 RR 83-84. None of the notices sent to Hartford Fire Insurance
Company relating to the Reclaimed Water Project indicated that labor or material was
provided or delivered to Dudley Construction, Ltd. 6 RR 140-141; 6 RR 144-145; P.
Ex. 5-8 (12 RR 39-67). All of those notices identified RM Dudley Construction, Ltd.
as the entity that received labor or material from ACT. 6 RR 140-141; 6 RR 144-145;
P. Ex. 5-8 (12 RR 39-67). The notices sent by ACT were therefore defective, and
ACT did not perfect its payment bond claims on the Reclaimed Water Project.
B. ACT did not perfect payment bond claims on the Tabor Road Project
Only one of the notices relating to the Tabor Road Project was sent to Dudley
Construction, Ltd. 6 RR 140-141; 6 RR 144-145; P. Ex. 9 (12 RR 68-71). The rest
were all addressed to RM Dudley Construction, Ltd.–an entity that was not a party to
this litigation, not the contractor on the Tabor Road Project, and not listed on the
payment bond for the Tabor Road Project, a copy of which was possessed by ACT.
6 RR 140-141; 6 RR 144-145; P. Ex. 10-14 (12 RR 72-108); P. Ex. 16 (12 RR 116);
7 RR 83-84. Only one of the notices sent to Hartford Fire Insurance Company
20
relating to the Tabor Road Project indicated that labor or material was provided or
delivered to Dudley Construction, Ltd. 6 RR 140-141; 6 RR 144-145; P. Ex. 9 (12 RR
68-71). The rest all identified RM Dudley Construction, Ltd. as the entity that
received labor or material from ACT. 6 RR 140-141; 6 RR 144-145; P. Ex. 10-14 (12
RR 72-108). The one notice that is addressed to Dudley Construction, Ltd. does not
contain the required sworn statement of account. P. Ex. 9 (12 RR 68-71); Tex. Gov’t
Code 2253.041(c). The notices sent by ACT were therefore defective, and ACT did
not perfect its payment bond claims on the Tabor Road Project.
C. The evidence is legally insufficient to support the jury’s finding that ACT
perfected its payment bond claims.
A no-evidence standard is used to evaluate the evidence supporting the fact-
finder’s determination of an issue on which the appellant did not have the burden of
proof at trial. Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014).
The Court must sustain a no-evidence complaint if the record shows (1) there is no
evidence supporting the challenged element; (2) the evidence offered to prove the
challenged element is no more than a scintilla, and (3) the evidence establishes the
opposite of the challenged element. HMC Hotel Props, II L.P. v. Keystone-Tex Prop.
Holding Corp., 439 S.W.3d 910, 913 (Tex. 2014).
Based on the evidence and arguments set forth above, there is no evidence
supporting the jury’s finding that ACT perfected its payment bond claims. Any
21
evidence offered to prove that ACT perfected its payment bond claims is not more
than a mere scintilla. The evidence establishes the opposite–that ACT did not perfect
its payment bond claims. Therefore, the jury erred by finding that ACT perfected its
payment bond claims on the Tabor Road Project and Reclaimed Water Project.
D. The evidence is factually insufficient to support the jury’s finding that
ACT perfected its payment bond claims.
The insufficient-evidence standard is used to evaluate the evidence supporting
an issue on which the appellant did not have the burden of proof at trial. Croucher v.
Croucher, 660 S.W.2d 55, 58 (Tex. 1983). The Court must sustain an insufficient
evidence complaint if it determines that the evidence supporting the jury’s finding is
so contrary to the overwhelming weight of the evidence that the finding should be set
aside. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
Based on the evidence and arguments set forth above, there is insufficient
evidence supporting the jury’s finding that ACT perfected its payment bond claims.
Any evidence offered to prove that ACT perfected its payment bond claims is so weak
that the jury’s finding must be set aside. Any evidence offered to prove that ACT
perfected its payment bond claims is so contrary to the overwhelming weight of the
evidence that the finding should be set aside. Therefore, the jury erred by finding that
ACT perfected its payment bond claims on the Tabor Road Project and Reclaimed
Water Project.
22
Issue Four: The trial court erred to the extent that it based its award against
Dudley Construction, Ltd. and Hartford Fire Insurance Company
on ACT’s payment bond claim.
Assuming arguendo that ACT did perfect its payment bond claims, to the extent
that the trial court found that ACT’s payment bond claim created an independent
entitlement for ACT to receive payment, the trial court committed error. 2 Supp. CR
57; CR 1152-1153. ACT’s alleged payment bond claim did not create an independent
entitlement for ACT to receive payment. Chilton Ins. Co. v. Pate Enterprises, Inc.,
930 S.W.2d 877, 886 (Tex. App.–San Antonio 1996, writ denied). ACT is not entitled
to payment simply because it attempted to comply with the notice requirements
mandated by the Texas Government Code. Chilton Ins. Co., 930 S.W.2d at 886.
Issue Five: The trial court erred by awarding attorney fees to ACT.
The trial court erred by awarding attorney fees to ACT. CR 1153. The
pleadings and the evidence do not support an award of attorney’s fees for ACT and
against Dudley Construction, Ltd., Richard Mark Dudley, and Hartford Fire Insurance
Company.
Texas follows the American Rule, which provides that litigants may recover
attorney's fees only if specifically provided for by statute or contract. Epps v. Fowler,
351 S.W.3d 862, 865 (Tex.2011). Despite timely requests in accordance with the
Texas Rules of Civil Procedure, the trial court did not provide findings of fact or
23
conclusions of law for the basis of the award of those fees. Tex. R. Civ. P. 296-297;
CR 1155; CR 1173. Without waiver of Appellants’ point of error of the failure of the
trial court to make findings of fact and conclusions of law that is set forth below,
Appellants will attempt to address each basis for which the trial court may have
awarded attorney’s fees that was set forth in ACT’s pleadings and how each ground
is insufficient to support the trial court’s award of attorney’s fees.
The only claims for attorney’s fees contained in ACTS’s pleadings were against
(1) Dudley Construction, Ltd. and Hartford Fire Insurance Company pursuant to
Texas Civil Practice & Remedies Code 38.001 et. seq., (2) Dudley Construction, Ltd.,
Hartford Fire Insurance Company, and Richard Mark Dudley pursuant to a contract
between the parties, and (3) Dudley Construction, Ltd. and Hartford Fire Insurance
Company pursuant to Chapter 2253 of the Texas Government Code. CR 920-921; CR
1033.
A. ACT cannot receive attorney’s fees pursuant to §38.001.
The first alleged basis contained in ACT’s pleadings for an award of attorney’s
fees is pursuant to Texas Civil Practice & Remedies Code §38.001. The trial court
erred to the extent it awarded attorney’s fees pursuant to that statute.
24
1. §38.001 Claims Against Richard Mark Dudley
ACT did not plead for attorney’s fees against Richard Mark Dudley under
§38.001 et. seq. CR 920. ACT did not assert any claims on a sworn account against
Richard Mark Dudley. CR 916-917. Questions on Richard Mark Dudley’s liability
on a suit on sworn account were not submitted to the jury, and there was no
corresponding finding of Richard Mark Dudley’s liability on a suit on sworn account.
2 Supp. CR 49-67. ACT did not assert any other claims against Richard Mark Dudley
that would entitle ACT to recover attorney’s fees under §38.001 of the Texas Civil
Practice & Remedies Code. CR 913-1002. To the extent that the trial court awarded
attorney’s fees against Richard Mark Dudley pursuant to §38.001 of the Texas Civil
Practice & Remedies Code, the trial court committed error.
2. §38.001 Claims Against Hartford Fire Insurance Company
ACT did not assert any claims on a sworn account against Hartford Fire
Insurance Company. CR 916-917. Questions on Hartford Fire Insurance Company’s
liability on a suit on sworn account were not submitted to the jury, and there was no
corresponding finding of Hartford Fire Insurance Company’s liability on a suit on
sworn account. 2 Supp. CR 49-67. ACT did not assert any other claims against
Hartford Fire Insurance Company that would entitle ACT to recover attorney’s fees
under §38.001 of the Texas Civil Practice & Remedies Code. CR 913-1002. To the
25
extent that the trial court awarded attorney’s fees against Hartford Fire Insurance
Company pursuant to §38.001 of the Texas Civil Practice & Remedies Code, the trial
court committed error.
3. §38.001 Claims Against ACT Dudley Construction, Ltd.
ACT requested an award of attorney’s fees against Dudley Construction, Ltd.
on its sworn account claim pursuant to Texas Civil Practice & Remedies Code
§38.001. CR 920. Under that statute, a person may only recover reasonable attorney’s
fees from an individual or corporation, in addition to the amount of a valid claim and
costs, if the claim is for a sworn account. Tex. Civ. Prac. & Rem. Code
§38.001(7)(Emphasis added). Dudley Construction, Ltd. is a Texas limited
partnership. CR 914; Tex. Business Organizations Code §5.055. Under the plain
language of Section §38.001, a person may not use §38.001 to recover attorney’s fees
against a limited partnership. Fleming & Associates, L.L.P. v. Barton, 425 S.W.3d
560, 576 (Tex. App.–Houston [14 th Dist.] 2014)(review denied, rehearing on petition
for review denied); see Ganz v. Lyons Partnership, L.P., 173 F.R.D. 173, 173 and
175-176 (N.D. Texas, Dallas Division 1997); see also Hoffman v. L&M Arts, 2015
WL 1000838 *7 (N.D. Texas, Dallas Division 2015).
ACT failed to prove that it was entitled to attorney’s fees under §38.001
because the evidence is legally and factually insufficient to show that Dudley
26
Construction, Ltd. is an individual or corporation. The evidence proves conclusively,
as a matter of law, that Dudley Construction, Ltd. is a limited partnership.
A no-evidence standard is used to evaluate the evidence supporting the fact-
finder’s determination of an issue on which the appellant did not have the burden of
proof at trial. Graham Cent. Station, Inc., 442 S.W.3d at 263. The Court must sustain
a no-evidence complaint if the record shows (1) there is no evidence supporting the
challenged element; (2) the evidence offered to prove the challenged element is no
more than a scintilla, and (3) the evidence establishes the opposite of the challenged
element. HMC Hotel Props, II L.P., 439 S.W.3d at 913.
Based on the evidence and arguments set forth above, there is no evidence that
Dudley Construction, Ltd. is an individual or corporation. Any evidence offered to
prove that Dudley Construction, Ltd. is an individual or corporation is not more than
a mere scintilla. The evidence establishes the opposite–that Dudley Construction, Ltd.
is not an individual or corporation. Therefore, the trial court erred to the extent it
awarded attorney’s fees against Dudley Construction, Ltd. pursuant to §38.001 et. seq.
The insufficient-evidence standard is used to evaluate the evidence supporting
an issue on which the appellant did not have the burden of proof at trial. Croucher v.
Croucher, 660 S.W.2d 55, 58 (Tex. 1983). The Court must sustain an insufficient
evidence complaint if it determines that the evidence supporting the finding is so
27
contrary to the overwhelming weight of the evidence that the finding should be set
aside. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
Based on the evidence and arguments set forth above, there is insufficient
evidence that Dudley Construction, Ltd. is an individual or corporation. Any evidence
offered to prove that Dudley Construction, Ltd. is an individual or corporation is so
weak that the trial court’s award of attorney’s fees must be set aside. Any evidence
offered to prove that Dudley Construction, Ltd. is an individual or corporation is so
contrary to the overwhelming weight of the evidence that the trial court’s award of
attorney’s fees should be set aside. Therefore, the trial court erred to the extent it
awarded attorney’s fees against Dudley Construction, Ltd. pursuant to §38.001 et. seq.
4. Required demand letters not provided.
Plaintiff also failed to provide any evidence of a demand letter required under
Texas Civil Practice & Remedies Code §38.002 et. seq. for an award of attorney’s
fees. To recover attorney’s fees under 38.001 et. seq., ACT must have presented the
claim to the opposing party and been represented by an attorney. Tex. Civ. Prac. &
Rem. Code 38.002; Hermann Hosp. v. Vardemann, 775 S.W.2d 866, 868 (Tex.
App.–Houston [1 st Dist.] 1989, no pet.).
There were no demand letters from an attorney of ACT which demanded
payment pursuant to 38.001 et. seq. from Dudley Construction, Ltd., Hartford Fire
28
Insurance Company, or Richard Mark Dudley. (A review of the entire reporter’s
record and clerk’s record reveals no such evidence).
The only letters in the record demanding payment were the payment bond
letters discussed in Issue Number Three of this Appellants’ Brief. P. Ex. 5-14. As
discussed in that Issue Number Three, none of the letters relating to the Reclaimed
Water Project were addressed to Dudley Construction, Ltd. or an agent of Dudley
Construction, Ltd. P. Ex. 5-8 (12 RR 39-67); Tex. Civ. Prac. & Rem. Code §38.002.
Only one letter relating to the Tabor Road Project was addressed to Dudley
Construction, Ltd.; the rest were all addressed to an entity that is not a party to this
suit. P. Ex. 9-14 (12 RR 68-108).The letters do not state that ACT was represented
by an attorney. Tex. Civ. Prac. & Rem. Code. 38.002(1). Therefore, those letters do
not meet the basic requirements of Section 38.002 of the Texas Civil Practice &
Remedies Code.
A no-evidence standard is used to evaluate the evidence supporting the fact-
finder’s determination of an issue on which the appellant did not have the burden of
proof at trial. Graham Cent. Station, Inc., 442 S.W.3d at 263. The Court must sustain
a no-evidence complaint if the record shows (1) there is no evidence supporting the
challenged element; (2) the evidence offered to prove the challenged element is no
more than a scintilla, and (3) the evidence establishes the opposite of the challenged
29
element. HMC Hotel Props, II L.P., 439 S.W.3d at 913.
Based on the evidence and arguments set forth above, there is no evidence that
ACT’s claims were presented in accordance with Texas Civil Practice & Remedies
Code §38.002. Any evidence offered to prove that ACT’s claims were presented in
accordance with Texas Civil Practice & Remedies Code §38.002 is not more than a
mere scintilla. The evidence establishes the opposite–that ACT’s claims were not
presented in accordance with Texas Civil Practice & Remedies Code 38.002.
Therefore, the trial court erred to the extent it awarded attorney’s fees against Dudley
Construction, Ltd. pursuant to §38.001 et. seq.
The insufficient-evidence standard is used to evaluate the evidence supporting
an issue on which the appellant did not have the burden of proof at trial. Croucher,
660 S.W.2d at 58. The Court must sustain an insufficient evidence complaint if it
determines that the evidence supporting the finding is so contrary to the overwhelming
weight of the evidence that the finding should be set aside. Garza v. Alviar, 395
S.W.2d at 823.
Based on the evidence and arguments set forth above, there is insufficient
evidence that ACT’s claims were presented in accordance with Texas Civil Practice
& Remedies Code §38.002. Any evidence offered to prove ACT’s claims were
presented in accordance with Texas Civil Practice & Remedies Code §38.002 is so
30
weak that the trial court’s award of attorney’s fees must be set aside. Any evidence
offered to prove that ACT’s claims were presented in accordance with Texas Civil
Practice & Remedies Code §38.002 is so contrary to the overwhelming weight of the
evidence that the trial court’s award of attorney’s fees should be set aside. Therefore,
the trial court erred to the extent it awarded attorney’s fees against Dudley
Construction, Ltd. pursuant to §38.001 et. seq.
B. No Contract Between Parties Provides for Attorney’s Fees
The second alleged basis contained in ACT’s pleadings for an award of
attorney’s fees is pursuant to a contract between the parties. CR 921. The trial court
erred to the extent it awarded attorney’s fees on that basis.
ACT provided no evidence of any contract between all of these parties
collectively.2 ACT provided no evidence of any contract between ACT and Hartford
Fire Insurance Company. Id. ACT provided no evidence of any contract between
ACT and Richard Mark Dudley personally. Id. The only signed agreement in the
record between ACT and Dudley Construction, Ltd. is the Purchase Order. Id.; D. Ex.
3. That Purchase Order does not provide for the payment of attorney’s fees in the
event of any litigation between the parties. D. Ex. 3. It is completely silent as to
attorney’s fees. D. Ex. 3.
2
A review of the entire reporter’s record and clerk’s record reveals no such evidence.
31
To the extent that trial court based the award of attorney’s fees under some sort
of breach of contract claim, no breach of contract claim was asserted by ACT against
any of the parties. CR 913-923. Questions on Appellants’ liability on a breach of
contract claim were not submitted to the jury, and there was no corresponding finding
of any of the Appellants’ liability on a breach of contract claim. 2 Supp. CR 49-66.
Furthermore, any claims for recovery of attorney’s fees that were pursuant to an
unpled contract claim are subject to the same arguments set forth above that ACT may
not recover attorney fees in this matter.
C. Chapter 2253 of the Texas Government Code Cannot Be Basis for
Attorney’s Fees.
The third alleged basis contained in ACT’s pleadings for an award of attorney’s
fees is pursuant to Chapter 2253.074 of the Texas Government Code. The trial court
erred to the extent it awarded attorney’s fees pursuant to that statute against Richard
Mark Dudley and Dudley Construction, Ltd.
1. 2253.074 claims against Richard Mark Dudley
ACT did not plead for attorney’s fees against Richard Mark Dudley pursuant
to Chapter 2253.074 of the Texas Government Code. ACT did not assert any claims
on a payment bond claim against Richard Mark Dudley. CR 919-920. To the extent
that the trial court awarded attorney’s fees against Richard Mark Dudley pursuant to
Chapter 2253.074 of the Texas Government Code, the trial court committed error.
32
Chapter 2253.074 of the Texas Government Code is the statute that authorizes
the trial court to award costs and reasonable attorney fees that are equitable against a
surety in a suit to enforce a claim on a payment bond. Tex. Gov't Code 2253.074;
A.D. Willis Co., Inc./Metal Bldg. Components, Inc. v. Metal Bldg. Components, Inc.,
2000 WL 1508500, *8 (Tex. App.–Austin 2000, pet. denied). Richard Mark Dudley
is not a surety on the payment bonds for the Tabor Road Project and Reclaimed Water
Project. P. Ex. 15; P. Ex. 16. The trial court committed error to the extent that the
trial court awarded attorney's fees against Richard Mark Dudley pursuant to Chapter
2253.074 of the Texas Government Code.
2. 2253.074 claims against Dudley Construction, Ltd.
Chapter 2253.074 of the Texas Government Code is the statute that authorizes
the trial court to award costs and reasonable attorney fees that are equitable against a
surety in a suit to enforce a claim on a payment bond. Tex. Gov’t Code 2253.074;
A.D. Willis Co., Inc./Metal Bldg. Components, Inc., 2000 WL 1508500, *8. Dudley
Construction, Ltd. is not a surety on the payment bonds for the Tabor Road Project
and Reclaimed Water Project. P. Ex. 15; P. Ex. 16. The trial court committed error
to the extent that the trial court awarded attorney’s fees against Dudley Construction,
Ltd. pursuant to Chapter 2253.074 of the Texas Government Code.
33
D. ACT could not recover attorney’s fees on its Trust Fund Claim
To the extent the trial court awarded attorney’s fees based upon ACT’s
misapplication of trust fund claim, such an award would be error. ACT did not plead
for attorney’s fees pursuant to a misapplication of trust fund claim. CR 920-921.
Furthermore, misapplication of trust fund claims do not provide for recovery of
attorney’s fees. Tex. Property Code 162.001 et. seq.; Larrison v. Catalina Design,
2011 WL 582730, *5 (Tex. App.–Fort Worth 2011, no pet.).
E. No attorney’s fees due to ACT’s failure to prevail on its causes of action
As set forth above in Appellants’ previous issues on appeal, ACT cannot prevail
on its claim for suit on sworn account on the Tabor Road Project, on its payment bond
claims, and on its misapplication of trust funds claims. To the extent that this Court
sustains Appellants’ points of error on ACT’s causes of action, ACT cannot recover
attorney’s fees on those causes of action. Any award of attorney’s fees on those
causes of action should be reversed. See Hill v. Heritage Resources, Inc., 964 S.W.2d
89, 143 (Tex. App.–El Paso 1997, pet. denied).
Issue Six: The trial court erred by awarding ACT the entire amount of
attorney’s fees requested by ACT because ACT did not segregate its
attorney’s fees.
ACT failed to segregate attorney fees on claims for which attorney’s fees are
recoverable from claims for which attorney’s fees are not recoverable. The trial court
34
erred by not requiring ACT to segregate its fees and awarding ACT the entire amount
of attorney’s fees requested by ACT. CR 1033; CR 1153.
The evidence is clear that ACT cannot recover all of its attorney fees in this
case. ACT made claims against R.M. Dudley Construction, Inc., now known as
Dudley Construction Management Services, Ltd., R.M. Dudley Holdings, LLC, and
R.M. Dudley Holdings 2, LLC. CR 913-914. The trial court directed a verdict against
ACT and for those defendants. CR 1150-1154; 2 Supp. CR 7-36, 42-66. ACT made
claims under the prompt pay act, alter ego, fraud, and misrepresentation. The trial
court directed a verdict against all of those claims made by ACT. CR 1150-1154; 2
Supp. CR 7-36, 42-66. ACT acted as a defendant against Dudley Construction, Ltd.’s
claims for breach of contract and fraud. CR 425-426. ACT requested fees relating to
all of those causes of action and defenses. CR 1026-1139.
ACT cannot recover attorney’s fees on causes of action against defendants for
which it did not prevail. See Green Intern., Inc. v. Solis, 951 S.W.2d 384, 390 (Tex.
1997). ACT cannot recover attorney’s fees for torts such as fraud and
misrepresentation. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 312 (Tex.
2006). ACT cannot recover attorney’s fees for defending against claims for breach of
contract and fraud. Lindley v. McKnight, 349 S.W.3d 113, fn 26 (Tex. App-Fort
Worth 2011, no pet.)
35
Fee claimants have always been required to segregate fees between claims for
which they are recoverable and claims for which they are not. Tony Gullo Motors I,
L.P., 212 S.W.3d at 311. The trial court therefore erred by awarding ACT the full
amount of unsegregated attorney’s fees requested by ACT.
Issue Seven: The evidence is legally and factually insufficient to support
the amount of attorney’s fees awarded because they were
not reasonable or necessary.
The trial court awarded ACT $131,823.99 in attorney’s fees, an amount in
excess of the damages awarded. CR 1152-1153. This amount of attorney's fees
awarded was not reasonable nor was it necessary.
ACT admitted that “it is clear the jury agreed with Defendants’ arguments as
to which agreements applied and which credits should be given.” CR 1031. The jury
found that ACT breached its contract with Dudley Construction, Ltd., but that such
breach was excused. 2 Supp. CR 65. The trial court also directed a verdict against
ACT and for three defendants. CR 1150-1154; 2 Supp. CR 7-36, 42-66. The trial
court also directed a verdict against ACT on its fraud and alter ego claims. CR 1150-
1154; 2 Supp. CR 7-36, 42-66. The trial court’s award of attorney’s fees was
unreasonable, especially in light of the directed verdicts of the trial court and the
findings made by the jury.
The Texas Supreme Court in Arthur Andersen outlined factors for courts to
36
consider in determining the reasonableness and necessity of attorney’s fees. Arthur
Anderson & Company v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex. 1997).
One of the factors outlined in Arthur Andersen is the amount involved and the results
obtained. Arthur Anderson & Company, 945 S.W.2d at 818; Young v. Qualls, 223
S.W.3d 312, 314 (Tex. 2007). The importance of this factor was reiterated in Smith
v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 548 (Tex. 2009).
The amount involved and the results obtained by Plaintiff in this matter do not
justify an award of $131,823.99 in attorney’s fees. The damages awarded by the trial
court were significantly less than the attorney fees sought by ACT. CR 1150-1154;
CR 913-1002. As ACT acknowledges, “it is clear the jury agreed with Defendants’
arguments as to which agreements applied and which credits should be given.” CR
915; CR 1031; CR 1150-1154; CR 913-1002. The jury found that the amounts sued
for by ACT were not the amounts agreed upon by the parties. 2 Supp. CR 50. The
amount of attorney’s fees awarded by the trial court was not reasonable, and the trial
court abused its discretion by awarding that amount of attorney’s fees.
The amount of attorney fees sought by ACT were also not necessary. Dudley
Construction, Ltd. offered to pay the claim if an invoice in the proper amount was
submitted. 7 RR 245; 6 RR 136; See also 9 RR 101 (that statement was excluded
from the jury trial, but the trial court heard it). ACT refused to provide an accurate
37
invoice and proceeded to file the lawsuit asserting the prices rejected by the jury. 7
RR 245; CR 913-1002; 2 Supp. CR 50; 2 Supp. CR 52. The jury agreed with Dudley
Construction, Ltd. that ACT claimed and sued for an excessive amount when the jury
rejected the amount of ACT’s claims on both projects. CR 913-1002; 2 Supp. CR 50;
2 Supp. CR 52. The trial court should not have rewarded ACT’s intransigence and
punish Appellants’ for ACT’s excessive claims by forcing them to pay ACT’s
unnecessary attorney’s fees. The Court abused its discretion by awarding those
attorney’s fees.
A no-evidence standard is used to evaluate the evidence supporting the fact-
finder’s determination of an issue on which the appellant did not have the burden of
proof at trial. Graham Cent. Station, Inc., 442 S.W.3d at 263. The Court must sustain
a no-evidence complaint if the record shows (1) there is no evidence supporting the
challenged element; (2) the evidence offered to prove the challenged element is no
more than a scintilla, and (3) the evidence establishes the opposite of the challenged
element. HMC Hotel Props, II L.P., 439 S.W.3d at 913.
Based on the evidence and arguments set forth above, there is no evidence that
the amount of the award of attorney’s fees was reasonable and necessary. Any
evidence offered to prove that the amount of the award of attorney’s fees was
reasonable and necessary is not more than a mere scintilla. The evidence establishes
38
the opposite–that the amount of the award of attorney’s fees was not reasonable and
necessary. Therefore, the trial court abused its discretion with regards to the amount
of attorney’s fees awarded to ACT.
The insufficient-evidence standard is used to evaluate the evidence supporting
an issue on which the appellant did not have the burden of proof at trial. Croucher,
660 S.W.2d at 58. The Court must sustain an insufficient evidence complaint if it
determines that the evidence supporting the finding is so contrary to the overwhelming
weight of the evidence that the finding should be set aside. Garza v. Alviar, 395
S.W.2d at 823.
Based on the evidence and arguments set forth above, there is insufficient
evidence that the amount of the award of attorney’s fees was reasonable and
necessary. Any evidence offered to prove the amount of the award of attorney’s fees
was reasonable and necessary is so weak that the trial court’s award of attorney’s fees
must be set aside. Any evidence offered to prove that the amount of the award of
attorney’s fees was reasonable and necessary is so contrary to the overwhelming
weight of the evidence that the amount of the trial court’s award of attorney’s fees
should be set aside. Therefore, the trial court erred abused its discretion with regards
to the amount of attorney’s fees awarded to ACT.
39
Issue Eight: The trial court erred by failing to file requested findings of
fact and conclusions of law.
The trial court erred by failing to file findings of fact and conclusions of law as
requested by Appellants. In this case, the trial court was the factfinder with regards
to attorney’s fees. CR 1033. Requests for findings of fact and conclusions of law are
appropriate on court-decided issues. IKB Indus. v. Pro-Line Corp., 938 S.W.2d 440,
443 (Tex. 1997).
Appellants requested the trial court to make findings of fact and conclusions of
law and notified the trial court of past due findings of fact and conclusions of law. CR
1155-1156; CR 1173-1174; Tex. R. Civ. P. 296-297. When properly requested, the
trial court has a mandatory duty to file findings of fact. Cherne Indus. v. Magallanes,
763 S.W.2d 768, 772 (Tex 1989).
Appellants are harmed because Appellants are required to guess at the reasons
for the trial court’s decision. Larry F. Smith Inc. v. The Weber Co., Inc., 110 S.W.3d
611, 615 (Tex. App.–Dallas 2003, pet. denied). The advantage accruing to Appellants
by requesting findings of fact and conclusions of law is the ability to limit the issues
on appeal. Id. Absent findings, the trial court's error harmed Appellants because
Appellants are forced to attack all the possible grounds supporting the judgment
instead of the grounds actually found by the trial court. Id. at 615-616; Liberty Mut.
Fire Ins. v. Laca, 243 S.W.3d 791, 794 (Tex. App.–El Paso 2007, no pet.).
40
The appellate court is requested to abate the appeal and remand the case to the
trial court to make findings of fact and conclusions of law unless the error is not
curable, in which case the appellate court should reverse and remade the case for a
new trial.
Issue Nine: The trial court erred by directing a verdict and refusing to submit
jury questions on Dudley Construction, Ltd.’s fraud claim.
The trial court erred by not submitting Dudley Construction, Ltd.’s fraud claim
to the jury. There was sufficient evidence to support Dudley Construction, Ltd.’s
fraud claim.
The elements of a cause of action for fraud are (1) the party makes a material
misrepresentation, (2) the misrepresentation is made with knowledge of its falsity or
made recklessly without any knowledge of the truth and as a positive assertion, (3) the
misrepresentation is made with the intention that it should be acted on by the other
party, and (4) the other party relies on the misrepresentation and thereby suffers
injury. Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 217 (Tex. 2011);
Italian Cowboy Partners v. Prudential Ins., 341 S.W.3d 323, 337 (Tex. 2011);
Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774 (Tex. 2009).
“Misrepresentation” means (1) a false statement of fact, (2) a promise of future
performance made with an intent, at the time the promise was made, not to perform
as promised, (3) a statement of opinion based on a false statement of fact, (4) a
41
statement of opinion that the maker knows to be false, (5) or an expression of opinion
that is false, made by one who has, or purports to have, special knowledge of the
subject matter of the opinion. Italian Cowboy Partners, 341 S.W.3d at 338; Formosa
Plastics Corp. USA v. Presidio Engineers & Constractors, Inc., 960 S.W.2d 41, 46-48
(Tex. 1998); Trenholm v. Ratcliff, 646 S.W.2d 927, 930 (Tex. 1983).
The jury questions requested by Dudley Construction, Ltd. on its fraud claim
follow the Texas Pattern Jury Charges for fraud. 2 Supp. 38-39; Texas Pattern Jury
Charges–Business, Consumer, Insurance, & Employment (2014) PJC 100.12; 105.1-
105.3E; 115.20. Those jury questions properly set forth the elements of fraud to be
found by the jury.
ACT made the material misrepresentation to Dudley Construction, Ltd. that it
would provide restrained joint pipe. ACT provided a submittal for restrained joint
pipe. 6 RR 65; 6 RR 86. ACT provided lead times of when the restrained joint pipe
would be delivered. 6 RR 112; 7 RR 134-135; D. Ex. 15 ACT made statements that
restrained joint pipe was ready to be delivered. 7 RR 138; D. Ex. 18.
These statements were false because ACT did not order restrained joint pipe.
6 RR 66-67. ACT did not order the restrained joint pipe after the delivery of the
rejected pipe was brought to ACT’s attention. 6 RR 67; 6 RR 70; 6 RR 73; 6 RR 112;
7 RR 74. ACT therefore made false statements to Dudley Construction, Ltd. by
42
stating that the restrained joint pipe was ready to be delivered and by providing false
lead times. 6 RR 112; 7 RR 134-135; D. Ex. 15; 7 RR 138; D. Ex. 18; 7 RR 234-235.
This representation was important to Dudley Construction, Ltd. because the slip
joint pipe submittal was rejected by the City of Bryan, and ACT promised delivery of
the pipe that would satisfy the City of Bryan. 6 RR 64-65. Dudley Construction, Ltd.
conveyed to the City of Bryan that restrained joint pipe would be delivered based on
ACT’s misrepresentations. 7 RR 233-234. Until July 6, 2011, Dudley Construction,
Ltd. did not know that restrained joint pipe would not be delivered. 7 RR 223; P. Ex.
23. Dudley Construction, Ltd. then had discussions from July 6, 2011 to September
21, 2011 with the City of Bryan to use the delivered slip joint pipe 7 RR 223.
ACT made the misrepresentation that the restrained joint pipe would be
delivered with knowledge of its falsity or made it recklessly without any knowledge
of the truth and as a positive assertion. Direct or circumstantial evidence may be used
to prove that ACT made the statement with or without knowledge of its truth.
Johnson & Higgins v. Kenneco Energy, Inc., 962 S.W.2d 507, 526 (Tex. 1998). ACT
provided a submittal for the pipe but did not order it from the manufacturer. 6 RR 65-
67; 6 RR 86. The evidence showed that ACT made the representations regarding
delivery of the restrained joint pipe when it knew that it had not ordered the restrained
joint pipe. 6 RR 66-73, 112; 7 RR 74. ACT therefore made false statements to
43
Dudley Construction, Ltd. by stating that the restrained joint pipe was ready to be
delivered and by providing false lead times. 6 RR 112; 7 RR 134-135; D. Ex. 15; 7
RR 138; D. Ex. 18; 7 RR 234-235.
ACT made with the misrepresentation with the intent that it should be acted on
by Dudley Construction, Ltd. 6 RR 112; 7 RR 134-135; D. Ex. 15; 7 RR 138; D. Ex.
18; 7 RR 234-235. Dudley Construction, Ltd. conveyed to the City of Bryan that
restrained joint pipe would be delivered based on ACT’s misrepresentations. 7 RR
233-234. From March 31, 2011 to July 6, 2011, ACT caused delays on the project by
its deception, and Dudley Construction, Ltd. suffered injury as a result. P. Ex. 23; D.
Ex. 14, 15-23, 26; 6 RR 65; 7 RR 134-139, 160, 168-170, 183-196, 233-234, 250-252;
8 RR 15-21. Dudley Construction, Ltd. relied on the misrepresentation and thereby
suffered injury.
A directed verdict is reviewed under a no-evidence standard. City of Keller v.
Wilson, 168 S.W.3d 802, 823 (Tex. 2005). If there is evidence to support the
submission of the jury questions, the trial court's refusal to submit such questions is
reversible error. Neuro-Developmental Associates of Houston v. Corporate Pines
Realty Corp., 908 S.W.2d 26, 28 (Tex. App.–Houston [1 st Dist.] 1995, pet. denied).
The evidence set forth above shows that there was evidence to submit the questions
of fraud to the jury, and the trial court erred by refusing to do so and granting a
44
directed verdict against Dudley Construction, Ltd.’s fraud claim.
PRAYER
For the above reasons, it is requested that this Court:
1. Reverse and render that ACT be awarded $14,214.20 in actual damages,
courts costs, and post-judgment interest, and no attorney’s fees against Dudley
Construction, Ltd.;
2. Alternatively, reverse and render that ACT not recover any attorney’s
fees;
3. Alternatively, abate the appeal and remand the case to the trial court to
make findings of fact and conclusions of law;
4. Alternatively, reverse and remand this case for a new trial on all issues
of liability and damages;
5. Alternatively, reverse and remand this case for a new determination of
attorney’s fees;
6. Alternatively, reverse and remand this case for a new trial on Dudley
Construction, Ltd.’s fraud claim against ACT.
45
Respectfully submitted,
T HE S WEARINGEN L AW F IRM
R OBERT A. S WEARINGEN, P.C.
By: /s/Robert A. Swearingen
Robert A. Swearingen
State Bar Number 19563050
3002 Texas Avenue South
College Station, Texas 77845-5048
(979) 680-9993 ~ Telephone
(979) 680-9991 ~ Facsimile
ATTORNEY FOR APPELLANTS
DUDLEY CONSTRUCTION, LTD.,
RICHARD MARK DUDLEY, AND
HARTFORD FIRE INSURANCE
COMPANY
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using WordPerfect X3 and
contains 12,409 words, as determined by the computer software’s word-count function,
excluding the sections of the document listed in Texas Rule of Appellate Procedure 9.4(i)(1).
/s/ Robert A. Swearingen
ROBERT A. SWEARINGEN
46
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been sent
by certified mail, return receipt requested, hand delivery, and/or facsimile to counsel listed
below on this the 23 rd day of December, 2015.
W. Jason Walker
Lisa M. Norman
A NDREWS M YERS, P.C.
3900 Essex Lane, Suite 800
Houston, Texas 77027
via e-mail
/s/ Robert A. Swearingen
ROBERT A. SWEARINGEN
47
APPENDIX
Tab 1 Final Judgment
Tab 2 Court Instructions to the Jury with answers
Tab 3 Texas Business Organizations Code §5.055
Tab 4 Texas Civil Practice & Remedies Code §38.001
Tab 5 Texas Civil Practice & Remedies Code §38.002
Tab 6 Texas Government Code §2253.041
Tab 7 Texas Government Code §2253.044
Tab 8 Texas Government Code §2253.074
Tab 9 Texas Property Code §162.001
Tab 10 Texas Rule of Civil Procedure §296
Tab 11 Texas Rule of Civil Procedure §297
Tab 12 Texas Rule of Civil Procedure §301
Tab 13 Purchase Order
48
Recieved 312612015 8:51 :06 P
Marc; Hamlin, District Clerk
Brazos County, Texas
Kayla Johnson
Filed 4/2/201511:14:39 AM
Marc Hamlin, District Clerk
Brazos County, Texas
Michael Wersig
CAUSE NO. 12-000281-CV-361
ACT PIPE & SUPPLY, INC. § IN THE DISTRICT COURT
§
§
§
vs. § OF BRAZOS COUNTY
§
DUDLEY CONSTRUCTION, LTD., §
RICHARD MARK DUDLEY, and §
HARTFORD FIRE INSURANCE COMP ANY § 36lst JUDICIAL DISTRICT
FINAL JUDGMENT
Plaintiff, ACT PIPE & SUPPLY, INC. ("Plaintiff'), filed suit against Defendants,
DUDLEY CONSTRUCTION, LTD., RICHARD MARK DUDLEY and HARTFORD FIRE
INSURANCE COMP ANY ("Defendants") alleging suit on a sworn account, a bond claim and
violation of the construction trust fund statute. Defendants appeared and answered in this case.
On November 17, 2014, the Court called this case to trial. Plaintiff and Defendants
appeared in person and through their attorneys and announced ready for trial. The Court
determined that it had jurisdiction over the subject matter and over all parties to this proceeding.
The jury was impaneled and the parties submitted all factual and legal matters in controversy
between the parties to this Court beginning on November 17, 2014.
After the close of all the evidence, the jury delivered its verdict on November 20, 2014,
which is incorporated herein by reference. The jury found that with regard to Plaintiffs sworn
account claim against Dudley Construction, Ltd. for the Reclaimed Water Project for the City of
College Station, Plaintiff supplied labor, materials or equipment to Dudley Construction
(Question No. 1), that Plaintiffs prices were charged in accordance with the parties' agreement
(Question No. 2), that Plaintiff remain unpaid by Dudley Construction, Ltd. (Question No. 3),
and the amount that would fairly and reasonably compensate Plaintiff is $14,214.20 (Question
1598.161
No. 4). The jury found that with regard to Plaintiff's sworn account claim against Dudley
Construction, Ltd. for the Tabor Road Project for the City of Bryan, Plaintiff supplied labor,
materials or equipment to Dudley Construction (Question No. 1), that Plaintiff remain unpaid by
Dudley Construction, Ltd. (Question No. 3), and the amount that would fairly and reasonably
compensate Plaintiff is $110,269.70 (Question No. 4). Thejury found that Plaintiff perfected its
bond claim as to Dudley Construction, Ltd. and Hartford Fire Insurance Company for both
projects (Question No. 6), and found that the amount of the bond claim perfected by Plaintiff for
the Reclaimed Water Project is $14,214.20 and for the Tabor Road Project is $110,269.70
(Question No. 7). With regard to the construction trust fund claim, the jury found that Dudley
Construction, Ltd. and Richard Mark Dudley were trustees of trust funds received from the City
of College Station for the Reclaimed Water Project (Question No. 8) and for the City of Bryan
for the Tabor Road Project (Question No. 9), that Plaintiff was a trustee of those trust funds
(Question No. 10), and that Dudley Construction, Ltd. and Richard Mark Dudley misapplied the
trust funds for the Reclaimed Water Project (Question No. 11) and for the City of Bryan for the
Tabor Road Project (Question No. 12).
The jury answered "no" as to whether the prices charged by Plaintiff for on its sworn
account on the Tabor Road Project were in accordance with the parties' agreements (Question
No. 13). The jury did not answer the question concerning damages for the trust fund claim
(Question No. 13). Plaintiff filed a Motion to Disregard Certain Jury Findings, Motion for
Judgment Notwithstanding the Verdict, and Motion for Entry of Judgment. The Court is of the
opinion the Motion is well-taken and should be GRANTED.
It is ORDERED that Plaintiff's Motion is GRANTED; the Court accepts the jury's
finding that Plaintiff supplied labor, materials or equipment to Dudley Construction in response
1598.161
2
to Question No. 1; the jury's answer to Question No. 2 as to whether the prices charged by
Plaintiff were in accordance with the parties' agreement is accepted as to the Reclaimed Water
Project and disregarded as conclusively proven "yes" as to the Tabor Road Project; the Court
accepts the jury's finding in response to Question No. 3 that Plaintiff remains unpaid by Dudley
Construction; the Court accepts the jury's damages award in response to Question No. 4 in the
amount of $14,214.20 for the Reclaimed Water Project and $110,629.70 for the Tabor Road
Project; the Court accepts the jury's finding in response to Question No. 6 that Plaintiff perfected
its bond claim as to Dudley Construction, Ltd. and Hartford Fire Insurance Company for both
projects; the Court accepts the jury's finding in response to Question No. 7 that the amount of the
bond claim perfected by Plaintiff for the Reclaimed Water Project is $14,214.20 and for the
Tabor Road Project is $110,269. 70; the Court accepts the jury's finding in response to Questions
No. 8 and No. 9 that Dudley Construction, Ltd. and Richard Mark Dudley were trustees of trust
funds received from the City of College Station and the City of Bryan; the Court accepts the
jury's finding in response to Question No. 10 that Plaintiff was a trustee of those trust funds; the
Court accepts the jury's finding in response to Questions No. 11 and No. 12 that Dudley
Construction, Ltd. and Richard Mark Dudley misapplied the trust funds for both projects; the
Court finds damages were uncontroverted and conclusively proven in the amount of $14,214.20
for the Reclaimed Water Project and $110,629.70 for the Tabor Road Project, and the Court
substitutes those amounts for the jury's non-answer to Question No. 13; the Court finds
attorney's fees were uncontroverted and conclusively proven; and, the Court renders judgment
for Plaintiff against Defendants as follows:
It is ORDERED, ADJUDGED and DECREED that Plaintiff, ACT PIPE & SUPPLY,
INC., have and recover actual damages in the sum of $124,483.90 from and against Defendants,
1598.161
3
DUDLEY CONSTRUCTION, LTD., RICHARD MARK DUDLEY and HARTFORD FIRE
INSURANCE COMPANY, jointly and severally. It is further,
ORDERED, ADJUDGED and DECREED that Plaintiff, ACT PIPE & SUPPLY, INC.,
have and recover prejudgment interest on the sum awarded at the rate of five percent (5%) per
annum from and after February 1, 2012, up to the date this judgment is signed. It is further,
ORDERED, ADJUDGED and DECREED that Plaintiff, ACT PIPE & SUPPLY, INC.,
have and recover its reasonable and necessary attorneys' fees from and against Defendants,
DUDLEY CONSTRUCTION, LTD., RICHARD MARK DUDLEY and HARTFORD FIRE
INSURANCE COMPANY, jointly and severally, in the amount of$131,823.99 through the trial
court level, i61~'tef"-Wt1Hri+s--il'eettaft&M&oftftE!o-tte+i~l&fli``~is-:.-Ht8"*~18-Swm~;.u~w.~q;,.­
as its reasonable and necessary attorneys' fees for any appeal to the Court
Plaintiff prevails in said Court), the sum of $15,000.00
~lurt``=s--t&-hear-thc``!ti-fl't'e``-P-klltt*~lff6wi-IH~H"-.c,;Q`` It is further,
ORDERED, ADJUDGED and DECREED that Plaintiff, ACT PIPE & SUPPLY, INC.,
have and recover against Defendants, DUDLEY CONSTRUCTION, LTD., RICHARD MARK
DUDLEY and HARTFORD FIRE INSURANCE COMPANY, jointly and severally, post-
judgment interest on the sums awarded herein at the rate of five percent (5%) compounded
annually from the date this Judgment is signed until this Judgment is paid. It is further,
ORDERED, ADJUDGED and DECREED that Plaintiff, ACT PIPE & SUPPLY, INC.,
recover all costs of court from Defendants, DUDLEY CONSTRUCTION, LTD., RICHARD
MARK DUDLEY and HARTFORD FIRE INSURANCE COMPANY,jointly and severally.
1598.161
4
All writs and processes necessary for the enforcement of this Judgment shall issue. All
relief not expressly granted herein is denied. This is a final and appealable Judgment disposing
of all parties, claims and ca~e~f action.
SIGNED on this 'Pday of ~015
;L_
PRESIDING JUDGE
APPROVED AS TO FORM AND SUBSTANCE:
ANDREWS MYERS, P.C.
By: Isl Lisa M Norman
W. JASON WALKER
Texas Bar No. 00798568
Jwalker@andrewsmyers.com
LISA M. NORMAN
Texas Bar No. 24037190
Lnonnan@andrewsmyers.com
3900 Essex Lane, Suite 800
Houston, Texas 77027
713-850-4200-Telephone
713-850-4211- Facsimile
ATTORNEYS FOR PLAINTIFF,
ACT PIPE & SUPPLY, INC.
4810-4077-5458, v. I
1598.161
5
.. -
CAUSE NO. 12-000281-CV-361
;2.~C FILED
ACT PIPE & SUPPLY, INC. § IN THE DISTRICT COUltt:llE.. o'clock -=f M
§
vs. § BRAZOS COUNTY, TEXAS DEC 1 0 2015
§
DUDLEY CONSTRUCTION. LTD, § ~
~"W
RICHARD MARK DUDLEY, and §
HARTFORD FIRE INS. CO. § 361 ''DISTRICT COURT
COURT'S INSTRUCTIONS TO THE JURY
MEMBERS OF THE JURY:
This case is submitted to you by asking questions about the facts, which you must decide from
the evidence you have heard in this trial. You are the sole judges of the credibility of the witnesses
and the weight to be given their testimony, but in matters of law you must be governed by the
instructions in this charge. In discharging your responsibility on this jury, you will observe all the
instructions that have previously been given you. I shall now give you additional instructions that you
should carefully and strictly follow during your deliberations.
I. Do not let bias, prejudice, or sympathy play any part in your deliberations.
2. In arriving at your answers, consider only the evidence introduced here under oath and such
exhibits, if any, as have been introduced for your consideration under the rulings of the Court, that is,
the evidence seen and heard in this courtroom, together with the law as given you by the Court. In
your deliberations, you will not consider or discuss anything that is not presented by the evidence in
this case.
3. Since every answer that is required by these instructions is important, no juror should state
or consider that any required answer is not important.
42
..
4. You must not decide who you think should win, and then try to answer the questions
accordingly. Simply answer the questions, and do not discuss nor concern yourselves with the effect
of your answers. That is a matter for the court exclusively.
5. You will not decide a question by lot or drawing straws, or by any other method of chance.
Do not return a quotient verdict. A quotient verdict means that the jurors agree to abide by the result
reached by adding together each juror's figures and dividing by the number of jurors to get an
average. Do not do any trading on your answers; that is, one juror should not agree to answer a
certain question one way if others will agree to answer another question another way.
6. You may render your verdict upon the vote of ten or more members of the jury. The same
ten or more of you must agree upon all of the answers made and to the entire verdict. You will not,
therefore, enter into an agreement to be bound by a majority or any other vote ofless than ten jurors.
If the verdict and all of the answers therein are reached by unanimous agreement, the presiding juror
shall sign the verdict for the entire jury. If any juror disagrees as to any answer made by the verdict,
those jurors who agree to all findings shall each sign the verdict.
These instructions are given you because your conduct is subject to review the same as that of
the witnesses, parties, attorneys, and the Judge. If it should be found that you have disregarded any of
these instructions, it will be jury misconduct and it may require another trial by another jury; then all
of our time will have been wasted.
The presiding juror or any other juror who observes a violation of the Court's instructions
shall immediately warn the one who is violating the same and caution the juror not to do so again.
Answer "Yes" or "No" to all questions unless otherwise instructed. A "Yes" answer must be
based upon a preponderance of the evidence unless otherwise instructed If you do not find that a
43
preponderance of the evidence supports a "Yes" answer, then answer "No." If the question directs
you to give an answer other than "Yes" or "No", you must still base your answer on a preponderance
of the evidence, unless otherwise instructed.
When the words are used in this charge in a sense that varies from the commonly understood
meaning, you are given a proper legal definition, which you are bound to accept in place of any other
meaning. The court now gives you certain definitions of terms used in this charge, by which you will
be governed in arriving at your answer to the questions submitted to you. Additional definitions and
instructions may appear with specific questions, and should be read before answering the questions.
DEFINITIONS
Preponderance ofthe evidence. The term preponderance ofthe evidence means the greater
weight and degree of credible evidence, including testimony, introduced before you and admitted in
this case.
You are instructed that a fact may be established by direct evidence or by circumstantial
evidence, or by both. A fact is established by direct evidence when proved by documentary evidence
or by witnesses who saw the act done or heard the words spoken. A fact is established by
circumstantial evidence when it may be fairly and reasonably inferred from other facts proved.
Now, bearing in mind the foregoing instructions and definitions, you will answer the
questions set forth herein.
Presiding Juror
When you go into the jury room to answer the questions, you will select your own presiding
juror and then you will deliberate upon your answers to the questions asked.
The presiding juror has these duties:
(a) preside over your deliberations, meaning manage the discussions, and see that you follow
44
these instructions;
(b) give written questions or comments to the bailiff which you desire to have delivered to
the judge;
(d) vote on the questions;
(e) write down the answers you agree on;
(f) get the signatures for the verdict certificate;
(g) notifY the bailiff that you have reached a verdict.
Instructions for Signing the Verdict Certificate
I. You may answer the questions on a vote of I 0 jurors. The same I 0 jurors must agree on
every answer in the instructions. This means you may not have one group of I 0 jurors agree on one
answer and a different group of I 0 jurors agree on another answer;
2. If I 0 jurors agree on every answer, those I 0 jurors sign the verdict.
If II jurors agree on every answer, those II jurors sign the verdict.
If all 12 of you agree on every answer, you are unanimous and only the Presiding Juror will
sign the verdict.
After you have retired to consider your verdict, no one has any authority to communicate with
you except the bailiff of this court. You should not discuss the case with anyone, not even with other
members of the jury, unless all of you are present and assembled in the jury room. Should anyone
attempt to talk to you about the case before the verdict is returned, whether at the courthouse, at your
home, or elsewhere, please inform the judge of this fact.
You have been permitted to take notes during the testimony in this case. In the event any of
you took notes, you may rely on your notes during your deliberations. However, you may not share
your notes with the other jurors and you should not permit the other jurors to share their notes with
45
you. You may, however, discuss the contents of your notes with the other jurors. You shall not use
your notes as authority to persuade your fellow jurors. In your deliberations, give no more and no
less weight to the views of a fellow juror just because that juror did or did not take notes. Your notes
are not official transcripts. They are personal memory aides, just like the notes of the judge and the
notes of the lawyers. Notes are valuable as a stimulant to your memory. On the other hand, you
might make an error in observing or you might make a mistake in recording what you have seen or
heard. Therefore, you are not to use your notes as authority to persuade fellow jurors of what the
evidence was during the trial.
During your deliberations, you must not communicate with or provide any information to
anyone by any means about this case. You may not use any electronic device or media, such as a
telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet
service, or any text or instant messaging service; or any internet chat room, blog, or website such
as Facebook, My Space, Linkedln, YouTube or Twitter, to communicate to anyone any
information about this case or to conduct any research about this case until I accept your verdict.
When you have answered all of the questions which you are required to answer under the
instructions of the judge, and your presiding juror has placed your answers in the spaces
provided, and signed the verdict as presiding juror or obtained the signatures, you will advise the
bailiff at the door of the jury room that you have reached a verdict, and then you will return into
court with your verdict.
Zl::>
SIGNED on November-+"; 2014.
STEVE SMITH
Presiding Judge
46
CAUSE NO. 12-000281-CV-361
ACT PIPE & SUPPLY, INC. § IN THE DISTRICT COURT OF
§
vs. § BRAZOS COUNTY, TEXAS
§
DUDLEY CONSTRUCTION, LTD., §
RICHARD MARK DUDLEY and §
HARTFORD FIRE INS. CO. § 361 ''DISTRICT COURT
CERTIFICATE
WE, THE JURY, have answered the above and foregoing questions as herein indicated, and
herewith return same into Court as our verdict.
(To be signed by the Presiding Juror if unanimous)
PRESIDING JUROR
47
48
QUESTION NO. 1
Did ACT Pipe & Supply, Inc. sell and deliver labor, materials or equipment to Dudley Construction,
Ltd. for any of the following:
Answer
Answer "Yes" or "No" as to each.
Reclaimed Water Project
Tabor Road Project
49
If you answered "Yes" as to either project in Question No. 1, then answer Question No. 2.
Otherwise, do not answer Question No.2.
QUESTION NO. 2
Were the prices ACT Pipe & Supply, Inc. charged in accordance with the agreement between ACT
Pipe & Supply, Inc. and Dudley Construction, Ltd. for either of the following projects:
Answer
Answer "Yes" or "No" as to each.
Reclaimed Water Project
Tabor Road Project No
50
If you answered "Yes" to either project in Question No. 2, then answer Question No. 3. Otherwise,
do not answer Question No. 3.
QUESTION NO. 3
Does the amount, if any, owed to ACT Pipe & Supply, Inc. remain unpaid by Dudley Construction,
Ltd. on either of the following:
Answer
Answer "Yes" or 11 No.' 1
Reclaimed Water Project
Tabor Road Project
51
If you answered "Yes" to Question No.3, then answer Question No.4. Otherwise, do not answer
Question No.4.
QUESTION NO. 4
What sum of money, if paid in cash now, would fairly and reasonably compensate ACT Pipe
& Supply, Inc. for the amount owed on the account for either ofthe following projects?
Do not add any amount for interest on damages, if any.
Answer separately in dollars and cents for damages, if any.
ANSWER:
Reclaimed Water Project ¢ \4) ~14~.26
Tabor Road Project 4 110)~ .. 1-0
52
QUESTION NO. 5
Did Dudley Construction, Ltd. fail to comply with its obligations to ACT Pipe & Supply,
Inc. under the Prompt Payment Act for any of the projects?
You are instructed that under the Prompt Payment Act, a contractor who receives
payment from an owner or a person authorized to act on behalf of any owner, must pay each of
its suppliers the portion of the payment that is attributable to materials provided under the
relevant contract, to the extent of that supplier's interest in the payment. The payment must be
made not later than the seventh day after the date the contractor receives payment from the
owner.
You are instructed that if a good faith dispute exists concerning the amount owed, the
contractor may withhold from the supplier up to 100% of the disputed amount for the
construction project.
Answer
Answer "Yes" or "No" as to each.
Reclaimed Water Project
Tabor Road Project No
53
JURY INSTRUCTION
You are instructed that the "Prime Contractor" means a person, firm or corporation that
makes a public work contract with a governmental entity.
You are instructed that "Public Work Contract" means a contract for constructing,
altering or repairing a public building or carrying out or completing any public work.
You are instructed that "Public Work Material" means material used or ordered and
delivered for use directly to carry out a public work.
You are instructed that "Payment Bond" means the payment bond provided by Hartford
for the protection of all claimants supplying labor and material to the Project. The Payment
Bond is not insurance.
You are instructed that a "Claimant" for purposes of the Payment Bond is defined as
anyone having a direct contractual relationship with a Prime Contractor, to perform the work or a
part of the work, or to furnish labor or materials or both as a part of the work as follows:
(a) Labor is to be construed to mean labor used in the direct prosecution of the work.
(b) Material is to be construed to mean material incorporated in the work, or
consumed in the direct prosecution of the work, or ordered and delivered for such
incorporation or such consumption.
You are instructed that ACT Pipe & Supply, Inc. "perfected a claim" on the Bond if it
performed all of the following or all of the following have occurred.
(I) ACT Pipe & Supply, Inc. furnished the labor and/or materials for which payment
is claimed;
(2) ACT Pipe & Supply, Inc. mailed to Hartford, and to Dudley Construction, Ltd., as
the Prime Contractor, written notice of the claim on or before the 15th day of the
third month after each month in which the labor was performed or the material
was delivered;
(3) The notice provided by ACT Pipe & Supply, Inc. must contain:
(a) the name of the party for whom the public work labor was performed or to
whom the public work materials was delivered;
(b) the approximate date of performance or delivery;
(c) a description of the public work labor or material for reasonable
identification;
54
(d) the amount due;
(e) a general itemization of the claim, including copies of documents, invoices
or orders that reasonably identify the labor performed or material
delivered for which the claim is made, the job and the destination of
delivery.
(4) ACT Pipe & Supply, Inc. mailed to Hartford, and to Dudley Construction, Ltd., as
the Prime Contractor, a sworn statement of account stating in substance that the
amount claimed is just and correct and all that all just and lawful offsets,
payments, and credits known to ACT Pipe & Supply, Inc. have been allowed.
The sworn statement of account must have been mailed on or before the 15th day
of the 3rd month after each month in which the material was delivered.
55
QUESTION NO. 6
Did ACT Pipe & Supply, Inc. perfect its bond claim as to Dudley Construction, Ltd. and
Hartford for either of the following projects?
Answer
Answer "Yes" or "No" as to each:
As to Dudley Construction, Ltd.:
Reclaimed Water Project
Tabor Road Project
As to Hartford:
Reclaimed Water Project
Tabor Road Project
56
If you answered "Yes" to both Dudley Construction, Ltd. and Hartford in Question No. 6,
then answer Question No.7. Otherwise, do not answer Question No.7.
QUESTION NO. 7
What is the amount of the bond claim that ACT Pipe & Supply, Inc. perfected for the
following projects:
(a) Reclaimed Water Project
(b) Tabor Road Project
Do not add any amount for interest on damages, if any.
Answer separately in dollars and cents on damages, if any.
ANSWER:
Reclaimed Water Project ~ \4-) ~14-,~ 0
Tabor Road Project f \to) ~q, =t-o
57
QUESTION NO. 8
Were either Dudley Construction, Ltd. or Mark Dudley, a trustee of trust funds received
from the City of College Station for the Reclaimed Water Project?
Construction payments are "trust funds" if the payments are made to a contractor or
subcontractor or to an officer, director, or agent of a contractor or subcontractor, under a
construction contract for the improvement of specific real property in this state.
A contractor, subcontractor, or owner or an officer, director, or agent of a contractor,
subcontractor, or owner, who receives trust funds or who has control or direction of trust funds,
is a "trustee" of the trust funds.
Answer
Answer "Yes" or "No" as to each:
Dudley Construction, Ltd. ~es
Richard Mark Dudley aka Mark Dudley
58
QUESTION NO. 9
Were either Dudley Construction, Ltd. or Mark Dudley a trustee of trust funds received
from the City of Bryan for the Tabor Road Project?
Construction payments are "trust funds" if the payments are made to a contractor or
subcontractor or to an officer, director, or agent of a contractor or subcontractor, under a
construction contract for the improvement of specific real property in this state.
A contractor, subcontractor, or owner or an officer, director, or agent of a contractor,
subcontractor, or owner, who receives trust funds or who has control or direction of trust funds,
is a "trustee" of the trust funds.
Answer
Answer "Yes" or "No" as to each:
Dudley Construction, Ltd.
Richard Mark Dudley aka Mark Dudley
59
If you answered "Yes" to any part of Questions No. 8 or No. 9, then answer Question No. 10.
Otherwise, do not answer Question No. 10.
QUESTION NO. 10
Was ACT Pipe & Supply, Inc. a beneficiary of trust funds for either of the following projects:
(a) Reclaimed Water Project
(b) Tabor Road Project
You are instructed that a supplier who furnishes material for the construction or repair of an
improvement on specific real property in this state is a "beneficiary" of any trust funds paid or
received in connection with the improvement.
Answer
Answer "Yes" or "No" as to each:
Reclaimed Water Project \)es
Tabor Road Project
60
If you answered "Yes" to any part of Question No. 8, and "Yes" to any part of Question No. I 0,
then answer Question No. II. Otherwise, do not answer Question II.
QUESTION NO. 11
Did either Dudley Construction, Ltd. or Mark Dudley misapply trust funds for the Reclaimed
Water Project?
Construction payments are "trust funds" if the payments are made to a contractor or
subcontractor or to an officer, director, or agent of a contractor or subcontractor, under a
construction contract for the improvement of specific real property in this state.
A trustee who, intentionally or knowingly or with intent to defraud, directly or
indirectly retains, uses, disburses, or otherwise diverts trust funds without first fully paying all
current or past due obligations incurred by the trustee to the beneficiaries of the trust funds, has
misapplied the trust funds.
A trustee acts with "intent to defraud" when the trustee retains, uses, disburses, or
diverts trust funds with the intent to deprive the beneficiaries of the trust funds.
Answer
Answer "Yes" or "No" as to each:
Dudley Construction, Ltd.
Richard Mark Dudley aka Mark Dudley
61
If you answered "Yes" to Question No. 9, and "Yes" to any part of Question No. 10, then answer
Question No. 12. Otherwise, do not answer Question 12.
QUESTION NO. 12
Did either Dudley Construction, Ltd. or Mark Dudley misapply trust funds for the Tabor Road
Project?
Construction payments are "trust funds" if the payments are made to a contractor or
subcontractor or to an officer, director, or agent of a contractor or subcontractor, under a
construction contract for the improvement of specific real property in this state.
A trustee who, intentionally or knowingly or with intent to defraud, directly or
indirectly retains, uses, disburses, or otherwise diverts trust funds without first fully paying all
current or past due obligations incurred by the trustee to the beneficiaries of the trust funds, has
misapplied the trust funds.
A trustee acts with "intent to defraud" when the trustee retains, uses, disburses, or
diverts trust funds with the intent to deprive the beneficiaries of the trust funds.
Answer
Answer "Yes" or "No" as to each:
Dudley Construction, Ltd. jes
Richard Mark Dudley aka Mark Dudley
62
If you answered "Yes" to Question No. II or Question No. 12, then answer Question No. 13.
Otherwise, do not answer Question 13.
OUESTION13
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate ACT Pipe
& Supply, Inc. for its damages, if any, that were proximately caused by such misapplication of trust
funds?
"Proximate cause" means a cause that was a substantial factor in bringing about an event, and
without which cause such event would not have occurred. In order to be a proximate cause, the act
or omission complained of must be such that a person using ordinary care would have foreseen that
the event, or some similar event, might reasonably result therefrom. There may be more than one
proximate cause of an event.
Consider the following elements of damages, if any, and none other.
1. Amounts owed on the Reclaimed Water Project.
2. Amounts owed on the Tabor Road Project.
Do not add any amount for interest on damages, if any.
Answer separately in dollars and cents for damages, if any.
Answer
Reclaimed Water Project $o,oo
Tabor Road Project $o,oo
63
' .
QUESTION NO. 14
Did ACT Pipe & Supply, Inc. fail to comply with an agreement with Dudley Construction, Ltd.?
Compliance with an agreement must occur within a reasonable time under the circumstances
unless the parties agreed that compliance must occur within a specified time and the parties
intended compliance with such time to be an essential part of the agreement
In determining whether the parties intended time of compliance to be an essential part of the
agreement, you may consider the nature and purpose of the agreement and the facts and
circumstances surrounding its making.
Answer "Yes" or "No".
ANSWER: ____ ````~--
64
..
If you answered "Yes" to Question 14, then answer Question No. 15. Otherwise, do not answer
Question No. 15.
QUESTION NO. 15
Was ACT Pipe & Supply Inc.'s failure to comply with the agreement excused?
You are instructed that failure to comply with the agreement by ACT Pipe & Supply, Inc.
is excused under any of the following circumstances:
(a) Dudley Construction, Ltd.'s previous failure to comply with a material obligation
of the same agreement.
(b) The agreement is waived by Dudley Construction, Ltd. Waiver is an intentional
surrender of a known right or intentional conduct inconsistent with claiming the
right.
(c) A different performance was accepted as full satisfaction of performance of the
original obligations of the agreement.
(d) Failure to comply with one agreement is excused if the parties agreed that a new
agreement would take its place.
Answer ''Yes" or "'No".
ANSWER:
65
..
If you answered "No" to Question 15, then answer Question No. 16. Otherwise, do not answer
Question No. 16.
QUESTION NO. 16
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
Dudley Construction, Ltd. for its damages, if any, that were natural, probable and foreseeable
consequences that resulted from ACT Pipe & Supply, Inc.'s failure to comply with the
agreement?
Consider the following elements of damages, if any, and none other.
Do not add any amount for interest on damages, if any.
Answer separately in dollars and cents for damages, if any.
ANSWER:
Home Office overhead
Additional dewatering overhead
Extended Offsite overhead
66
§ 5.055. Name of Limited Partnership or Foreign Limited..., TX BUS ORG § 5.055
Vernon's Texas Statutes and Codes Annotated
Business Organizations Code (Refs & Annos)
Title 1. General Provisions (Refs & Annos)
Chapter 5. Names of Entities; Registered Agents and Registered Offices
Subchapter B. General Provisions Relating to Names of Entities
V.T.C.A., Business Organizations Code § 5.055
§ 5.055. Name of Limited Partnership or Foreign Limited Partnership
Effective: September 1, 2007
Currentness
(a) The name of a limited partnership or foreign limited partnership must contain:
(1) the word “limited”;
(2) the phrase “limited partnership”; or
(3) an abbreviation of that word or phrase.
(b) The name of a domestic or foreign limited partnership that is a limited liability limited partnership must also contain the
phrase “limited liability partnership” or an abbreviation of that phrase.
(c) The name of a domestic or foreign limited partnership that is a limited liability limited partnership complies with the
requirements of Subsections (a) and (b) if the name of the limited partnership contains the phrase “limited liability limited
partnership” or an abbreviation of that phrase.
Credits
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006. Amended by Acts 2007, 80th Leg., ch. 688, § 22, eff. Sept. 1, 2007.
V. T. C. A., Business Organizations Code § 5.055, TX BUS ORG § 5.055
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 38.001. Recovery of Attorney's Fees, TX CIV PRAC & REM § 38.001
KeyCite Yellow Flag - Negative Treatment
Proposed Legislation
Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annos)
Title 2. Trial, Judgment, and Appeal
Subtitle C. Judgments
Chapter 38. Attorney's Fees (Refs & Annos)
V.T.C.A., Civil Practice & Remedies Code § 38.001
§ 38.001. Recovery of Attorney's Fees
Currentness
A person may recover reasonable attorney's fees from an individual or corporation, in addition to the amount of a valid claim
and costs, if the claim is for:
(1) rendered services;
(2) performed labor;
(3) furnished material;
(4) freight or express overcharges;
(5) lost or damaged freight or express;
(6) killed or injured stock;
(7) a sworn account; or
(8) an oral or written contract.
Credits
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
Notes of Decisions (1441)
V. T. C. A., Civil Practice & Remedies Code § 38.001, TX CIV PRAC & REM § 38.001
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 38.001. Recovery of Attorney's Fees, TX CIV PRAC & REM § 38.001
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 38.002. Procedure for Recovery of Attorney's Fees, TX CIV PRAC & REM § 38.002
Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annos)
Title 2. Trial, Judgment, and Appeal
Subtitle C. Judgments
Chapter 38. Attorney's Fees (Refs & Annos)
V.T.C.A., Civil Practice & Remedies Code § 38.002
§ 38.002. Procedure for Recovery of Attorney's Fees
Currentness
To recover attorney's fees under this chapter:
(1) the claimant must be represented by an attorney;
(2) the claimant must present the claim to the opposing party or to a duly authorized agent of the opposing party; and
(3) payment for the just amount owed must not have been tendered before the expiration of the 30th day after the claim is
presented.
Credits
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
Notes of Decisions (393)
V. T. C. A., Civil Practice & Remedies Code § 38.002, TX CIV PRAC & REM § 38.002
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 2253.041. Notice Required for Claim for Payment for Labor..., TX GOVT § 2253.041
Vernon's Texas Statutes and Codes Annotated
Government Code (Refs & Annos)
Title 10. General Government (Refs & Annos)
Subtitle F. State and Local Contracts and Fund Management
Chapter 2253. Public Work Performance and Payment Bonds (Refs & Annos)
Subchapter C. Notice Requirements
V.T.C.A., Government Code § 2253.041
§ 2253.041. Notice Required for Claim for Payment for Labor or Material
Currentness
(a) To recover in a suit under Section 2253.073 on a payment bond for a claim for payment for public work labor performed
or public work material delivered, a payment bond beneficiary must mail to the prime contractor and the surety written notice
of the claim.
(b) The notice must be mailed on or before the 15th day of the third month after each month in which any of the claimed labor
was performed or any of the claimed material was delivered.
(c) The notice must be accompanied by a sworn statement of account that states in substance:
(1) the amount claimed is just and correct; and
(2) all just and lawful offsets, payments, and credits known to the affiant have been allowed.
(d) The statement of account shall include the amount of any retainage applicable to the account that has not become due under
the terms of the public work contract between the payment bond beneficiary and the prime contractor or between the payment
bond beneficiary and a subcontractor.
Credits
Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993.
Editors' Notes
REVISOR'S NOTE
2008 Main Volume
(1) The revised law substitutes the term “payment bond beneficiary” for the source law term “claimant” for the
reason stated in Revisor's Note (3) under Section 2253.021 of this chapter.
(2) The revised law substitutes the terms “public work labor” and “public work material” for the source law terms
“labor” and “material” for the reason stated in Revisor's Note (4) under Section 2253.021 of this chapter.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 2253.041. Notice Required for Claim for Payment for Labor..., TX GOVT § 2253.041
Notes of Decisions (80)
V. T. C. A., Government Code § 2253.041, TX GOVT § 2253.041
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 2253.044. Notice of Claim for Multiple Items of Labor or Material, TX GOVT § 2253.044
Vernon's Texas Statutes and Codes Annotated
Government Code (Refs & Annos)
Title 10. General Government (Refs & Annos)
Subtitle F. State and Local Contracts and Fund Management
Chapter 2253. Public Work Performance and Payment Bonds (Refs & Annos)
Subchapter C. Notice Requirements
V.T.C.A., Government Code § 2253.044
§ 2253.044. Notice of Claim for Multiple Items of Labor or Material
Currentness
The notice for a claim for lump-sum payment for multiple items of public work labor or material must:
(1) describe the labor or material in a manner that reasonably identifies the labor or material;
(2) state the name of the party for whom the labor was performed or to whom the material was delivered;
(3) state the approximate date of performance or delivery;
(4) state whether the contract is written or oral;
(5) state the amount of the contract; and
(6) state the amount claimed.
Credits
Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993.
Editors' Notes
REVISOR'S NOTE
2008 Main Volume
The revised law substitutes the term “public work labor or material” for the source law terms “labor” and “material”
for the reason stated in Revisor's Note (4) under Section 2253.021 of this chapter.
V. T. C. A., Government Code § 2253.044, TX GOVT § 2253.044
Current through the end of the 2015 Regular Session of the 84th Legislature
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 2253.044. Notice of Claim for Multiple Items of Labor or Material, TX GOVT § 2253.044
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 2253.074. Costs and Attorney Fees, TX GOVT § 2253.074
Vernon's Texas Statutes and Codes Annotated
Government Code (Refs & Annos)
Title 10. General Government (Refs & Annos)
Subtitle F. State and Local Contracts and Fund Management
Chapter 2253. Public Work Performance and Payment Bonds (Refs & Annos)
Subchapter D. Claims on Bonds; Enforcement
V.T.C.A., Government Code § 2253.074
§ 2253.074. Costs and Attorney Fees
Currentness
A court may award costs and reasonable attorney fees that are equitable in a proceeding to enforce a claim on a payment bond
or to declare that any part of a claim is invalid.
Credits
Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993.
Editors' Notes
REVISOR'S NOTE
2008 Main Volume
The source law refers to “equitable and just” costs and reasonable attorney's fees. The revised law omits the source
law term “just” because “just” is included within the meaning of “equitable.”
Notes of Decisions (24)
V. T. C. A., Government Code § 2253.074, TX GOVT § 2253.074
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 162.001. Construction Payments and Loan Receipts as..., TX PROPERTY §...
KeyCite Yellow Flag - Negative Treatment
Proposed Legislation
Vernon's Texas Statutes and Codes Annotated
Property Code (Refs & Annos)
Title 10. Miscellaneous Beneficial Property Interests
Subtitle B. Fiduciaries
Chapter 162. Construction Payments, Loan Receipts, and Misapplication of Trust Funds
Subchapter A. Construction Payments and Loan Receipts (Refs & Annos)
V.T.C.A., Property Code § 162.001
§ 162.001. Construction Payments and Loan Receipts as Trust Funds
Effective: September 1, 2009
Currentness
(a) Construction payments are trust funds under this chapter if the payments are made to a contractor or subcontractor or to
an officer, director, or agent of a contractor or subcontractor, under a construction contract for the improvement of specific
real property in this state.
(b) Loan receipts are trust funds under this chapter if the funds are borrowed by a contractor, subcontractor, or owner or by an
officer, director, or agent of a contractor, subcontractor, or owner for the purpose of improving specific real property in this
state, and the loan is secured in whole or in part by a lien on the property.
(c) A fee payable to a contractor is not considered trust funds if:
(1) the contractor and property owner have entered into a written construction contract for the improvement of specific real
property in this state before the commencement of construction of the improvement and the contract provides for the payment
by the owner of the costs of construction and a reasonable fee specified in the contract payable to the contractor; and
(2) the fee is earned as provided by the contract and paid to the contractor or disbursed from a construction account described
by Section 162.006, if applicable.
(d) Trust funds paid to a creditor under this chapter are not property or an interest in property of a debtor who is a trustee
described by Section 162.002.
Credits
Acts 1983, 68th Leg., p. 3720, ch. 576, § 1, eff. Jan. 1, 1984. Amended by Acts 1997, 75th Leg., ch. 1018, § 1, eff. Sept. 1,
1997; Acts 2009, 81st Leg., ch. 1277, §§ 1, 2, eff. Sept. 1, 2009.
Notes of Decisions (74)
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 162.001. Construction Payments and Loan Receipts as..., TX PROPERTY §...
V. T. C. A., Property Code § 162.001, TX PROPERTY § 162.001
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
Rule 296. Requests for Findings of Facts and Conclusions of Law, TX R RCP Rule 296
Vernon's Texas Rules Annotated
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 11. Trial of Causes
G. Findings by the Court
TX Rules of Civil Procedure, Rule 296
Rule 296. Requests for Findings of Facts and Conclusions of Law
Currentness
In any case tried in the district or county court without a jury, any party may request the court to state in writing its findings of fact
and conclusions of law. Such request shall be entitled “Request for Findings of Fact and Conclusions of Law” and shall be filed
within twenty days after judgment is signed with the clerk of the court, who shall immediately call such request to the attention
of the judge who tried the case. The party making the request shall serve it on all other parties in accordance with Rule 21a.
Credits
Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of March 19, 1957, eff. Sept. 1, 1957; June 10, 1980, eff. Jan. 1, 1981;
Dec. 5, 1983, eff. April 1, 1984; April 24, 1990, eff. Sept. 1, 1990.
Notes of Decisions (1784)
Vernon's Ann. Texas Rules Civ. Proc., Rule 296, TX R RCP Rule 296
Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure are current with amendments received through
September 1, 2015. Bar Rules, Rules of Disciplinary Procedure, Code of Judicial Conduct, and Rules of Judicial Administration
are current with amendments received through September 1, 2015. Other state court rules and selected county rules are current
with rules verified through June 1, 2015.
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Rule 297. Time to File Findings of Fact and Conclusions of Law, TX R RCP Rule 297
Vernon's Texas Rules Annotated
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 11. Trial of Causes
G. Findings by the Court
TX Rules of Civil Procedure, Rule 297
Rule 297. Time to File Findings of Fact and Conclusions of Law
Currentness
The court shall file its findings of fact and conclusions of law within twenty days after a timely request is filed. The court shall
cause a copy of its findings and conclusions to be mailed to each party in the suit.
If the court fails to file timely findings of fact and conclusions of law, the party making the request shall, within thirty days
after filing the original request, file with the clerk and serve on all other parties in accordance with Rule 21a a “Notice of Past
Due Findings of Fact and Conclusions of Law” which shall be immediately called to the attention of the court by the clerk.
Such notice shall state the date the original request was filed and the date the findings and conclusions were due. Upon filing
this notice, the time for the court to file findings of fact and conclusions of law is extended to forty days from the date the
original request was filed.
Credits
Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of June 10, 1980, eff. Jan. 1, 1981; Dec. 5, 1983, eff. April 1, 1984; April
24, 1990, eff. Sept. 1, 1990.
Notes of Decisions (251)
Vernon's Ann. Texas Rules Civ. Proc., Rule 297, TX R RCP Rule 297
Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure are current with amendments received through
September 1, 2015. Bar Rules, Rules of Disciplinary Procedure, Code of Judicial Conduct, and Rules of Judicial Administration
are current with amendments received through September 1, 2015. Other state court rules and selected county rules are current
with rules verified through June 1, 2015.
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Rule 301. Judgments, TX R RCP Rule 301
Vernon's Texas Rules Annotated
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 11. Trial of Causes
H. Judgments
TX Rules of Civil Procedure, Rule 301
Rule 301. Judgments
Currentness
The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be
so framed as to give the party all the relief to which he may be entitled either in law or equity. Provided, that upon motion
and reasonable notice the court may render judgment non obstante veredicto if a directed verdict would have been proper, and
provided further that the court may, upon like motion and notice, disregard any jury finding on a question that has no support
in the evidence. Only one final judgment shall be rendered in any cause except where it is otherwise specially provided by law.
Judgment may, in a proper case, be given for or against one or more of several plaintiffs, and for or against one or more of
several defendants or intervenors.
Credits
Oct. 29, 1940, eff. Sept. 1, 1941. Amended by order of July 15, 1987, eff. Jan. 1, 1988.
Notes of Decisions (2981)
Vernon's Ann. Texas Rules Civ. Proc., Rule 301, TX R RCP Rule 301
Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure are current with amendments received through
September 1, 2015. Bar Rules, Rules of Disciplinary Procedure, Code of Judicial Conduct, and Rules of Judicial Administration
are current with amendments received through September 1, 2015. Other state court rules and selected county rules are current
with rules verified through June 1, 2015.
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Purchase Order
P. O.Number 11370 S1a1c 1+1r1 30 • Con~ge Station, Tnx;;s 77045
Tel. 970-776·2135 Fa~ 97!!·776-2235
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(979) 775·11 •M Phone eryan, Texas 77003
(979) 77:H255 Fax
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