Elton Senegal D/B/A Elton's Construction v. Shirley Payne and James Payne ( 2015 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-13-00508-CV
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ELTON SENEGAL D/B/A ELTON’S CONSTRUCTION, Appellant
V.
SHIRLEY PAYNE AND JAMES PAYNE, Appellees
_______________________________________________________ ______________
On Appeal from the 172nd District Court
Jefferson County, Texas
Trial Cause No. E-191,964-A
________________________________________________________ _____________
MEMORANDUM OPINION
In a case arising from a dispute over a home remodeling project, Elton
Senegal, d/b/a Elton’s Construction, appeals from a judgment notwithstanding the
verdict (JNOV) awarding the plaintiffs $70,000, approximately twice the amount
of the jury’s award. According to Elton, the evidence supports the jury’s award,
and the trial court erred by disregarding it.
Because the evidence on damages that was before the jury allowed it to
rationally return a verdict awarding the Paynes $36,000 in damages, we hold the
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trial court erred in disregarding the jury’s verdict. We reverse the trial court’s
JNOV, and we remand the case to the trial court to allow that court to render a
judgment that is based on the jury’s verdict. Tex. R. App. P. 43.3(a).
Background
In October 2011, Elton and Shirley Payne signed a remodeling contract. The
contract required Elton to substantially remodel the Paynes’ home, and required
Elton to tear down and replace an existing garage with a three-car garage and
carport. Due to the nature of the contract, the contract provided that any work
required due to “unforeseen damages” could result in an additional charge.
Although the contract generally describes the work, it does not specify the
quality or grade of materials that Elton planned to use on the project or the
dimensions of the areas to be remodeled. The parties do not dispute that the
remodeling contract required Shirley to pay $116,000 for the work. Under the
contract, Elton was to receive an initial down payment, and he was then to draw
against the balance of the contract as the project progressed. In November 2011,
Shirley signed a change order, increasing Elton’s compensation under the contract
by $2,100 to $118,100.
Between October 2011 and November 2011, Elton demolished various
structures, poured cement, and made significant progress toward the remodeling of
the Paynes’ home. In early December 2011, Shirley was sent a new contract, which
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proposed to complete the work at a total cost of $197,800. In Shirley’s opinion,
Elton was required to perform all of the work in the proposed new contract under
the terms of his October 2011 contract. Elton testified that he could not remember
if he sent Shirley a new contract proposal or not, but shortly after Shirley failed to
return the new proposal, Elton quit the project. Before Elton quit, Shirley paid him
$81,366 for his work.
In late December 2011, the Paynes requested that Elton submit the dispute to
arbitration through the Better Business Bureau. In early January 2012, Elton agreed
to arbitration, and the dispute was arbitrated. In a reasoned decision, the arbitrator
found that Elton breached the remodeling contract and awarded relief in favor of
the Paynes, requiring Elton to “honor [his] original bid of $116,000 and complete
the work in accordance with the original contract . . . on or before 6/30/2012.” The
arbitrator’s award also required that the Paynes, upon completion, pay Elton
$34,634, the balance due under his original contract.
Several weeks after the arbitrator notified the parties of his award, the
Paynes’ attorney sent Elton a letter threatening suit. The letter to Elton alleges that
Elton breached the arbitrator’s award; it demands that Elton begin work within ten
days. Elton did not return to the project to complete it.
In mid-February 2012, the Paynes’ attorney obtained a bid from Grady
Rucker, a contractor, to finish the project for $88,343. During the trial, Rucker
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testified that he used the blueprints that Elton used in preparing his bid.
Additionally, Rucker indicated that he planned to incorporate any construction
materials that were still onsite to complete the project; however, Rucker indicated
that the Paynes did not hire him.
Moises Castillo, a carpenter who had been working on the project for Elton
before Elton quit, gave Shirley another bid to complete Elton’s contract. Castillo
bid $70,600 to complete Elton’s work. Castillo testified that Shirley hired him, and
that she paid him $70,000. However, Castillo testified that he was unable to
complete the project because he ran out of money.
Before the trial, the Paynes filed a motion for partial summary judgment. In
the motion, the Paynes alleged that Elton was bound by the arbitrator’s finding that
Elton breached his remodeling contract. The trial court granted the motion,
rendered a partial summary judgment, and found that Elton breached the contract.
However, the partial summary judgment did not resolve the parties’ disputes about
whether some of Elton’s work allowed him to charge the Paynes additional sums to
compensate for correcting “unforeseen damages.” The partial summary judgment
also did not resolve the reasonable sum required to compensate the Paynes due to
Elton’s breach.
The parties tried the dispute to a jury in October 2013. During the trial, Elton
suggested that he found termite damage after he started the project, which required
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extra work. During the trial, Elton claimed that he had not foreseen the termite
damage when he bid the project, and he claimed that repairing termite damage was
beyond the scope of the work required by his contract.1
Standard of Review
In one issue, Elton contends the trial court erred by disregarding the jury’s
award of damages. Generally, a trial court must render a judgment based on the
jury’s verdict in a case; a trial court is authorized to grant a motion to disregard a
jury’s verdict only if a directed verdict on the issue would have been proper. Tex.
R. Civ. P. 301; Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394
(Tex. 1991). When a trial court’s decision to disregard a jury’s verdict is
challenged on appeal, we review the challenge using the same standard that we use
to review a challenge to a trial court’s decision to grant a directed verdict. Rush v.
Barrios, 56 S.W.3d 88, 94 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).
Under that standard, to justify the trial court’s decision to disregard the jury’s
verdict in this case, the record must conclusively establish that the jury could reach
only one decision on the amount the Paynes were damaged, and that no reasonable
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While Elton’s trial testimony contradicts a prior statement that he made
when the case was arbitrated about why his expenses for the project increased, the
statement that he made during the arbitration to explain the increase was not before
the jury. Because Elton’s prior statement explaining why he could not complete the
project was not before the jury, we do not consider it in evaluating if there was
legally sufficient evidence before the jury to explain the jury’s damage award.
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factfinder would conclude on this record that the Paynes were damaged in any
amount other than $70,000. See Prudential Ins. Co. of Am. v. Fin. Review Servs.,
Inc., 29 S.W.3d 74, 77 (Tex. 2000); In re Estate of Longron, 211 S.W.3d 434, 438
(Tex. App.—Beaumont 2006, pet. denied).
Evidence is legally sufficient if it “would enable reasonable and fair-minded
people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d
802, 827 (Tex. 2005). In evaluating the evidence’s legal sufficiency, we review the
entire record and “credit evidence that supports the verdict if reasonable jurors
could, and disregard contrary evidence unless reasonable jurors could not.” Kroger
Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006) (citing City of Keller,
168 S.W.3d at 827); see Am. Interstate Ins. Co. v. Hinson, 172 S.W.3d 108, 114
(Tex. App.—Beaumont 2005, pet. denied).
Unless the evidence before the jury conclusively established the fact that the
Paynes were damaged and the amount of their damages, the trial court could not
grant a directed verdict on the issue of damages. 2 See City of Keller, 168 S.W.3d at
810 (quoting Robert W. Calvert, “No Evidence” & “Insufficient Evidence” Points
of Error, 38 Tex. L. Rev. 361, 362-63 (1960)). Generally, when the amount of
what would be reasonable is disputed, a court is not authorized to substitute its
2
The fact that Elton breached the contract is not challenged on appeal, as
Elton has not challenged the trial court’s ruling that he failed to perform the
agreement.
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judgment and replace the jury’s assessment of the amount of money necessary to
reasonably compensate the plaintiffs for their injuries. See Pope v. Moore, 711
S.W.2d 622, 623-24 (Tex. 1986) (explaining that an issue complaining about the
amount the jury awarded requires the appeals court to resolve a factual dispute, and
holding that the matter should not have been reviewed under a legal sufficiency
standard).
When the evidence presents a range of possible damage awards, “an award
within that range is an appropriate exercise of the jury’s discretion, and a
reviewing court is not permitted to speculate on how the jury actually arrived at its
award.” Drury Sw., Inc. v. Louie Ledeaux #1, Inc., 350 S.W.3d 287, 292 (Tex.
App.—San Antonio 2011, pet. denied); see also Pilgrim’s Pride Corp. v.
Mansfield, No. 09-13-00518-CV, 2015 WL 794908, at *9 (Tex. App.—Beaumont
Feb. 26, 2015, no pet.). While a court is generally not permitted to substitute its
judgment for that of the jury when the damages are disputed, a trial court may
grant a new trial if a jury’s damage award is “manifestly too small or too large.”
Tex. R. Civ. P. 320. In this case, none of the parties asked the trial court to grant a
new trial. Instead, the trial court substituted its judgment on damages for that of the
jury by rendering a judgment notwithstanding the jury’s verdict.
At the conclusion of the trial, the trial court submitted an issue to the jury
asking it to decide the “amount of money, if any, you find that would be required
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to complete the agreed construction on the Payne[s’] home.” When the defendant
does not object to the charge, challenges that concern the sufficiency of the
evidence to support the jury’s finding are reviewed on appeal using the charge the
jury considered; the evaluation of the sufficiency of the evidence is not reviewed
based on a hypothetically correct charge.3 See Osterberg v. Peca, 12 S.W.3d 31, 55
(Tex. 2000).
In reviewing the evidence that the jury considered, we assume that the jury
resolved all conflicts in accordance with its verdict, as it was within the jury’s
province to resolve any conflicts that existed in the evidence. See City of Keller,
168 S.W.3d at 820. Under a legal sufficiency review, “[t]he final test for legal
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Elton did not object to the damage issue. After the jury began deliberating,
it sent the trial court a question, asking the court to clarify whether the term
“agreed construction” in the charge meant the construction in the original contract
or something else. In response, the trial court advised the jury that “there is only
the original contract.” The measure of damages the jury was required to apply in
deciding an appropriate award is not challenged, but by deciding the case on the
issue the jury decided, we do not intend to imply that the jury was instructed
properly on the measure of damages. See Vance v. My Apartment Steak House of
San Antonio, Inc., 677 S.W.2d 480, 482 (Tex. 1984) (explaining that where only
part of the contract price has been paid, the amount of the owner’s damages should
be subtracted from the unpaid balance of the contract); Turner, Collie & Braden,
Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 164 (Tex. 1982) (explaining that a
difference-in-value measure of damages, which applies when a contract has not
been substantially performed, and a remedial measure of damages, which applies
when the contract is performed, must both be reduced by any unpaid portion of the
contract price).
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sufficiency must always be whether the evidence at trial would enable reasonable
and fair-minded people to reach the verdict under review.” Id. at 827.
Analysis
According to the Paynes, the record contains no evidence supporting the
jury’s award of $36,000. However, evidence admitted during the trial includes
several opinions that established a range of possible damages awards. Elton
testified as follows:
[Question] Would you have been able to finish that job for the
$36,000 that was owed to you?
[Senegal] Actually the job, with the contract, yes, I would be
able to finish the job. But the additional - - when we tore the house
down, we ran into a bunch of problems when we tore some of the
house down. I’m not trying to be funny, but the only thing that was
holding that house together was two termites holding hands because it
was terrible when we opened up the walls.
Although Elton also testified during the trial that it would cost around $50,000 to
$60,000 to complete everything in the contract, it is not clear whether his higher
estimate included any repairs that he performed due to termites, items that he
claimed were unforeseen and, subject to an additional charge. The jury was entitled
to resolve the conflicts in Elton’s testimony, and it could have reasonably inferred
that Elton’s higher estimate was based on the assumption that his higher estimate
included additional work not included in his original contract.
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In evaluating the amount that would reasonably be required to complete the
work, the jury also was entitled to consider Moises Castillo’s testimony and his
bid. Castillo bid $70,600 to complete Elton’s contract. The evidence indicates that
Castillo was awarded the job to complete the work, but he then failed to complete
it. During the trial, Castillo was not asked to state whether his bid included repairs
to any termite damage or any other unforeseen items that were outside the scope of
the work described by Elton’s contract. Castillo was also not questioned regarding
whether his bid included the same quality and grade of materials on which Elton’s
contract was based. Additionally, Castillo was also not asked whether he saw any
termite damage while working on the project. Regardless of the way the jury
reconciled the conflicts in the testimony, “the judgments and inferences of experts
or skilled witnesses, even when uncontroverted, are not conclusive on the jury or
trier of fact, unless the subject is one for experts or skilled witnesses alone[.]”
McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).
Under Texas law, the general rule is that “opinion testimony does not
establish any material fact as a matter of law.” Id. In other words, none of the
various opinions that the jury considered in reaching its verdict were binding on
the jury. See City of Keller, 168 S.W.3d at 815-16 (explaining that “[e]vidence is
conclusive only if reasonable people could not differ in their conclusions, a matter
that depends on the facts of each case”). “Most often, undisputed contrary evidence
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becomes conclusive (and thus cannot be disregarded) when it concerns physical
facts that cannot be denied.” Id. at 815. The dispute in this case does not involve
physical facts; instead, the dispute concerns opinions that concern the cost
involved to complete the remodeling of the Paynes’ home. Castillo’s opinion on
the cost to complete Elton’s contract did not conclusively establish the reasonable
cost of completing the project. McGalliard,722 S.W.2d at 697.
Grady Rucker also testified during the trial regarding the estimate that he
gave to the attorney for the Paynes. According to Rucker, $88,343 was the
reasonable cost required to complete the project. Rucker’s opinion, like Castillo’s,
was not conclusive proof on the issue. See id. Here, the evidence indicates that
Rucker was hired by the attorney for the Paynes to estimate the cost required to
complete the remodeling that Elton started. Rucker was never asked whether his
bid included repairing any termite damage, or whether he saw any evidence of
termites when he inspected the Paynes’ home. Finally, with respect to the quality
and grade of materials to be used on the project, it is not clear from the testimony
that Rucker’s bid was based on the same assumptions that Elton used in
determining the contract price.
In summary, the testimony established a range of potential reasonable
awards from $36,000 to $88,343, and the evidence did not conclusively establish
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that a reasonable award was $70,000. We sustain Elton’s issue, and we conclude
the trial court erred by substituting its judgment for that of the jury.
The Paynes have not filed a cross-point in the appeal. Tex. R. App. P.
38.2(b). However, because the trial court granted the Paynes’ motion for JNOV
without first entering a judgment on the jury’s verdict in a form that is capable of
execution, rendering a judgment on the jury’s verdict is a matter that we leave to
the trial court on remand. Tex. R. App. P. 43.3(a). Therefore, we set aside the trial
court’s JNOV, and we remand the case to the trial court for the sole purpose of
entering a final judgment that is consistent with the jury’s verdict.
REVERSED AND REMANDED.
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HOLLIS HORTON
Justice
Submitted on October 28, 2014
Opinion Delivered July 2, 2015
Before McKeithen, C.J., Horton and Johnson, JJ.
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