Parallax Builders, Inc. v. Excel Partners, L.P., and Western Surety Company ( 2008 )

Affirmed and Memorandum Opinion filed November 25, 2008

Affirmed and Memorandum Opinion filed November 25, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00640-CV

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PARALLAX BUILDERS, INC., Appellant

V.

EXCEL PARTNERS, L.P. AND WESTERN SURETY COMPANY, Appellees

On Appeal from the 113th District Court

 Harris County, Texas

Trial Court Cause No. 2005-75253

M E M O R A N D U M   O P I N I O N

Parallax Builders, Inc. appeals from the judgment in a construction contract case.  Based on the jury=s verdict, the trial court awarded Parallax damages of $32,172.03 for Excel Partners, L.P.=s breach of the contract.  Further pursuant to the jury=s verdict, the court awarded Excel Partners an off-set of $12,500 for Parallax=s violation of the Deceptive Trade Practices Act.  It is this second award of which Parallax now complains.^[1] In three issues, Parallax contends that (1) the judgment does not comport with the jury=s findings, (2) the trial court improperly commented on the weight of the evidence in the jury charge, and (3) the trial court placed the questions in the jury charge in an improper sequence.  In its brief, Excel Partners requests sanctions against Parallax for filing a frivolous appeal.  We affirm the judgment and deny the request for sanctions.

Background

Parallax filed suit against Excel Partners, alleging that Excel Partners had contracted with Parallax for Parallax to furnish labor and materials in the construction of four homes but then failed to make the final payment under the contract of $45,651.87.  Parallax sought recovery under both breach of contract and quantum meruit.  Excel Partners counter-claimed against Parallax for, inter alia, breach of contract, negligence, obtaining a fraudulent lien, breach of an express warranty, breach of implied warranties, and various violations of the Texas Deceptive Trade Practices Act (DTPA).

After a trial to the jury, the trial court submitted seventeen questions in the jury charge.  Questions 1 through 6 concerned the parties= respective breach of contract claims.  Question 1, and the jury=s answers thereto, appear as follows:

Question 1

Did any of the parties listed below fail to comply with the agreement?

Answer AYes@ or ANo@ to each of the following:

a.  Plaintiff, Parallax Builders, Inc.:      NO  

b.  Defendant, Excel Partners, L.P.:      YES  

Question 2 was predicated on a finding in question 1 that Parallax had failed to comply with the agreement and asked what sum of money would compensate Excel Partners for that failure.  Question 3 was also predicated on a finding that Parallax had breached the agreement and asked about Excel Partners= attorney=s fees.  Because, in response to question 1, the jury did not find that Parallax violated the agreement, it did not answer questions 2 and 3.

Question 4 was predicated on a finding in question 1 that Excel Partners had failed to comply with the agreement and asked what sum of money would compensate Parallax for that failure.  The jury awarded $32,172.03.  Question 5 asked whether Excel Partners failure to comply was excused, and the jury responded: ANo.@  In answer to question 6, the jury awarded $7,500 in attorney=s fees to Parallax.

In response to questions 7 and 8, the jury rejected Excel Partners= claim that Parallax had filed a fraudulent lien.  In response to questions 9 and 10, the jury rejected Excel Partners= contention that Parallax charged a usurious interest rate.  In questions 11 and 12, the jury rejected Excel Partners= claim that Parallax had violated certain DTPA provisions.  In question 13, the jury found that Parallax failed to comply with the implied warranty that services were performed in a good and workmanlike manner.  In question 14, they assessed damages for this failure at $12,500.  In the remaining three questions, the jury refused to award attorney=s fees for Parallax=s breach of the implied warranty, and found that the failure to comply was not done knowingly.

As stated above, the trial court entered final judgment in keeping with the jury=s findings, awarding Parallax damages of $32,172.03 for Excel Partners= breach of contract and awarding Excel Partners an off-set of $12,500 for Parallax=s breach of the implied warranty.  Specifics regarding the jury charge conference and entry of judgment will be discussed as relevant below.

Error in the Judgment

In its first issue, Parallax contends that the judgment does not comport with the jury=s findings because the judgment states that Parallax violated the DTPA, whereas the jury found that Parallax failed to comply with a warranty.  We begin by noting that Parallax does not cite any relevant authority in support of this issue and thus has not properly briefed the issue.  Tex. R. App. P. 38.1(h) (AThe [appellant=s] brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@).

Additionally, while the record shows that Parallax objected to language in the judgment, it did not raise this particular issue in the trial court.  To have preserved error, a party=s argument on appeal must comport with its argument in the trial court.  Bayer Corp. v. DX Terminals, Ltd., 214 S.W.3d 586, 603 (Tex. App.CHouston [14th Dist.] 2006, pet. denied); see also Tex. R. App. P. 33.1(a) (requiring as a prerequisite to appeal that any complaint first be made in the trial court).  During the hearing on Parallax=s motion for entry of judgment, counsel for Parallax objected only in regards to the language used to describe the damages Parallax was to pay Excel Partners.  The draft judgment called the damages Aactual compensatory damages,@ whereas counsel insisted they be termed Aeconomic damages.@  The change was made as requested.  Immediately after that objection, Parallax=s counsel apparently asked Excel Partners= counsel whether he would mind changing the language in the judgment regarding Parallax=s DTPA violation from the generic Aviolations of the Deceptive Trade Practices Act,@ to more specific language indicating that Parallax had violated DTPA section 17.50 (which includes breach of an implied warranty).  Tex. Bus. & Com. Code Ann. ' 17.50 (a)(2).^[2] When Excel Partners= counsel suggested such a change went Abeyond what we actually need,@ Parallax=s counsel responded:  AOkay.@  The hearing then concluded without Parallax=s raising any concerns that the damages awarded to Excel Partners were for failure to comply with a warranty rather than for violation of the DTPA.  Accordingly, Parallax failed to preserve this issue for appeal, and we overrule Parallax=s first issue.

Comment on Weight of Evidence

In its second issue, Parallax contends that the trial court improperly commented on the weight of the evidence in the jury charge. Specifically, Parallax argues that by not predicating the jury=s answer to question 13, concerning breach of an implied warranty, on an affirmative answer to question 1, concerning breach of contract, the court improperly suggested that Parallax breached the implied warranty.  Again Parallax did not preserve this argument by making it in the trial court.  See Tex. R. App. P. 33.1(a); Bayer Corp., 214 S.W.3d at 603.  During discussion of the proposed charge, Parallax=s counsel objected to questions 11 through 17 on the ground that the only damages Excel Partners sought were for breach of the contract and that such damages are not recoverable under the DTPA.  In other words, Parallax asserted that questions 11 through 17 should not have been submitted in the charge at all.  This argument is essentially the opposite of what Parallax now argues on appeal:  that the trial court should have predicated question 13 on an affirmative answer to the breach of contract question.  At no point during the discussion of the charge did Parallax=s counsel argue either that question 13 should be predicated on question 1 or that question 13 constituted a comment on the weight of the evidence.  Accordingly, we find that these arguments were not preserved for appellate review and overrule Parallax=s second issue.

Sequencing of Jury Charge

In its third issue, Parallax contends that the trial court placed the questions in the jury charge in an improper sequence.  Specifically, Parallax complains that even though it was the plaintiff below, the trial court submitted questions concerning Excel Partners= breach of contract cause of action before questions concerning Parallax=s breach of contract cause of action.  Parallax believes that this sequencing effectively commented on the relative weight of evidence by suggesting that Excel Partners had a better case than Parallax.  Parallax further claims that this improper sequencing likely led the jury to find in Excel Partners= favor on the implied warranty issue contained in question 13.

Parallax is correct that a trial judge should not directly comment in the jury charge on the weight of the evidence.  See Tex. R. Civ. P. 277.  Any statement or action by the trial court which suggests the court=s opinion concerning an issue in the case may be considered a comment on the weight of the evidence.  See Mieth v. Ranchquest, Inc., 177 S.W.3d 296, 304 (Tex. App.CHouston [1st Dist.] 2005, no pet.).  Parallax is also correct that several rules of procedure suggest that the plaintiff typically should present its argument and evidence to the jury before the defendant does.  See Tex. R. Civ. P. 265, 266, 269.^[3] However, Parallax does not cite any authority directly supporting its contention that it is error for a trial court to place questions on a counter-plaintiff=s cause of action before questions concerning a plaintiff=s cause of action, and we are aware of no such authority.^[4]

Furthermore, even if Parallax is correct that sequencing such as the trial court used here constitutes error, any such error would be reversible only if it probably caused the rendition of an improper judgment.  See Tex. R. App. P. 44.1(a)(1).  The jury found in favor of Parallax on the questions it claims were improperly sequenced, finding that Excel Partners breached the agreement, Parallax did not breach the agreement, and Parallax was entitled to $32,172.03 in damages for Excel Partners= breach.  In total, the jury found in Parallax=s favor on questions 1 (subparts a and b), 4, 5, 6, 7, 9, 11, 12, 15, and 16.  Because of its answers favoring Parallax on other questions, the jury did not need to answer questions 2, 3, 8, 10, or 17.  The jury found against Parallax only on questions 13 (breach of implied warranty) and 14 (damages for the breach).  Even under Parallax=s theory, these two questions were properly sequenced, coming well after Parallax=s own claims were presented in the charge.  Given that (1) the jury answered the allegedly improperly sequenced questions in Parallax=s favor, (2) the jury answered numerous intervening questions in Parallax=s favor, and (3) the questions on which the jury found against Parallax were properly sequenced under Parallax=s rationale, we fail to see any connection between the alleged sequencing error and the alleged harm.  Accordingly, we cannot say that the alleged error probably caused the rendition of an improper judgment under Rule 44.1.  Parallax=s third issue is overruled.

Request for Sanctions

As mentioned above, in its brief, Excel Partners requests sanctions against Parallax pursuant to Rule 45 of the Texas Rules of Appellate Procedure for the filing of a frivolous appeal.  Tex. R. App. P. 45.  Whether to grant sanctions for a frivolous appeal is a matter of discretion that this court exercises with prudence and caution and only after careful deliberation in truly egregious circumstances.  Goss v. Houston Cmty. Newspapers, 252 S.W.3d 652, 657 (Tex. App.CHouston [14th Dist.] 2008, no pet.).  If an appellant=s argument on appeal fails to convince us but has a reasonable basis in law and constitutes an informed, good‑faith challenge to the trial court=s judgment, sanctions are not appropriate.  Id.  Although Parallax=s first two issues were not preserved in the trial court and the third lacks merit, we conclude that the appeal is not so egregious as to merit sanctions.  Accordingly, we deny Excel Partners= request for sanctions.

We affirm the trial court=s judgment.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed November 25, 2008.

Panel consists of Chief Justice Hedges and Justices Guzman and Brown.

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^[1]  In the judgment, the trial court also ordered that Parallax take nothing on its claims against Western Surety Company.  Parallax does not complain about this part of the judgment, and thus, Western Surety plays no role in this appeal.

^[2]  Although it is not entirely clear from the record to whom Parallax=s counsel directed his question, it is clear that Excel Partners= counsel, and not the trial court, responded.

^[3]  The rules in question actually state that it is the party with the burden of proof on the whole case who should go first.  See Tex. R. Civ. P. 265, 266, 269. 

^[4]  Parallax cites Ortega v. LPP Mortgage, Ltd., 160 S.W.3d 596 (Tex. App.CCorpus Christi 2005, no pet.), for the proposition that the order of jury questions can be a basis for reversal.  In that case, the court indeed held that the questions were improperly ordered because the jury could not have properly answered question 1 without first having answered question 2 because the answer to question 1 depended on the response to question 2.  Id. at 601-02.  The case does not, however, support the proposition that a plaintiff=s cause of action must always be presented in the charge before a defendant=s cause of action.