Flying J Inc. v. Meda, Inc. D/B/A AAA Auger , 2012 Tex. App. LEXIS 3834 ( 2012 )

OPINION
No. 04-08-00169-CV
FLYING J INC.,
Appellant
v.
MEDA, INC. d/b/a AAA Auger,
Appellee
From the County Court at Law No. 3, Bexar County, Texas
Trial Court No. 302723
Honorable David J. Rodriguez, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Catherine Stone, Chief Justice
Rebecca Simmons, Justice
Marialyn Barnard, Justice
Delivered and Filed: May 16, 2012
AFFIRMED
Appellee Meda, Inc. sued appellant Flying J, Inc. for breach of contract. Flying J
counterclaimed for breach of contract, breach of implied warranty, and negligence. On appeal,
Flying J asserts (1) the trial court improperly directed a verdict against Flying J’s breach of
contract cause of action, (2) the trial court impermissibly commented on the weight of the
evidence, (3) the trial court erroneously directed a verdict and refused to submit an issue to the
jury on Flying J’s breach of implied warranty cause of action, and (4) the evidence was legally
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and factually insufficient to support the jury’s findings of negligence and apportionment of fault.
We affirm the trial court’s judgment.
BACKGROUND
Flying J, a gasoline retailer, contracted with Meda, a plumbing company, to repair a
water line at a Flying J facility. Meda performed work on the water line in July of 2001 and
February of 2002. On these occasions Meda became aware that the water line was located in the
same trench as and in close proximity to a diesel line. In the form of written proposals, Meda
twice recommended that the water line be moved away from the diesel line to avoid potential
water contamination problems. Flying J refused to implement these proposals.
Meda was again called to repair the leaking water line on June 17, 2002. Meda witnesses
testified that on June 18 while excavating, Meda asked a Flying J manager to turn off the water
supply to increase visibility in the excavated area and to enable construction of a cement thrust
block that would strengthen the plumbing repairs. Meda witnesses testified that Flying J refused
to shut off the water; Flying J disputes this testimony. Meda made the repairs to the existing
water line and discovered a new leak further down the pipe. Meda began further excavation of
the trench to make the replacement. There was testimony that Flying J’s manager instructed the
Meda plumbers to use a backhoe to expedite the repairs. Meda used the backhoe, which scraped
the diesel line, and created a small puncture in the fuel line.
Meda temporarily halted its work while a third party repaired the fuel line. A Meda
witness testified that the water line was repaired within twenty-four hours of puncturing the
diesel line. The amount of diesel that spilled was hotly disputed at trial. Meda contends only
several cups escaped the line and presented evidence that there was diesel in the trench before
the diesel line was punctured. Meda also submitted evidence of past diesel spills and Texas
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Commission on Environmental Quality reports that indicated Flying J had prior environmental
remediation performed at that location for hydrocarbon contamination. Flying J contends
twenty-five gallons of fuel leaked from the punctured line and that any prior diesel spills had
been completely remediated before Meda hit the diesel line.
Despite the problems with the punctured diesel line, Flying J asked Meda to return on
July 20, 2002, to move the water line out of the same trench as the diesel line—essentially the
services proposed months earlier. Meda completed this work and submitted invoices for the
services rendered. Flying J refused to pay on all work performed on and after June 17, 2002,
contending that Meda caused property damages in excess of the amount owed for plumbing
services.
Meda brought suit for breach of contract; Flying J counterclaimed for breach of contract,
breach of implied warranty, and negligence. The trial court granted a partial directed verdict in
favor of Meda and dismissed Flying J’s breach of contract and breach of implied warranty causes
of action. Meda’s breach of contract and Flying J’s negligence causes of action were submitted
to the jury. The jury awarded Meda damages for Flying J’s breach of contract. On the
negligence claim, the jury found Flying J 80% responsible for damage to the fuel line and Meda
20% responsible. The trial court rendered judgment, and Flying J appeals.
FLYING J’S BREACH OF CONTRACT CLAIM
Flying J contends the trial court improperly granted a directed verdict against Flying J’s
breach of contract claim. Flying J claims that Meda breached the contract as a matter of law and
the damage to the diesel line gave rise to both breach of contract and tort causes of action. Meda
responds that because the diesel line was not part of the subject matter of the contract, Flying J’s
cause of action sounds solely in tort.
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A. Standard of Review of a Directed Verdict
“In reviewing a directed verdict, we decide whether there is any evidence of probative
value to raise an issue of material fact on the question presented, and we review the evidence in
the light most favorable to the person suffering the adverse judgment.” Exxon Corp. v. Emerald
Oil & Gas Co., L.C., 348 S.W.3d 194, 220 (Tex. 2011); accord Collora v. Navarro, 574 S.W.2d
65, 68 (Tex. 1978); State Office of Risk Mgmt. v. Martinez, 300 S.W.3d 9, 12 (Tex. App.—San
Antonio 2009, pet. denied). If a fact issue is raised on a material question, a directed verdict is
not proper and the issue must go to the jury. See Exxon Corp., 348 S.W.3d at 220–21; Collora,
574 S.W.2d at 68; Martinez, 300 S.W.3d at 12.
B. The “Contort” Distinction
Determining whether a cause of action sounds in tort or contract is often difficult. See
Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 617 (Tex. 1986); Sw. Bell Tel. Co. v.
DeLanney, 809 S.W.2d 493, 495 (Tex. 1991) (Gonzalez, J., concurring) (“We have muddled the
law of ‘contorts’ and an all encompassing bright line demarcation of what constitutes a tort
distinct from breach of contract has proven to be elusive.”). To determine whether Flying J’s
cause of action sounds in contract, tort, or both, it is instructive to examine the progression of
case law regarding the contract-tort distinction.
In Montgomery Ward & Co. v. Scharrenbeck, the Texas Supreme Court noted,
“Accompanying every contract is a common-law duty to perform with care, skill, reasonable
expedience and faithfulness the thing agreed to be done, and a negligent failure to observe any of
these conditions is a tort, as well as a breach of the contract.” 146 Tex. 153, 157, 204 S.W.2d
508, 510 (1947) (emphasis added) (citation and internal quotation marks omitted).
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In Jim Walter Homes, the court clarified and seemingly narrowed the “as well as”
language used in Scharrenbeck. See Jim Walter Homes, 711 S.W.2d at 617–18. The court
stated, “The contractual relationship of the parties may create duties under both contract and tort
law. The acts of a party may breach duties in tort or contract alone or simultaneously in both.
The nature of the injury most often determines which duty or duties are breached.” Id. at 618
(emphasis added) (citations omitted).
In DeLanney, the court further advanced the progression of contort jurisprudence by
adopting a two-part test for determining whether a party’s cause of action sounds in contract,
tort, or both. See Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494–95 (Tex. 1991). A court
(1) looks at the source of the duty giving rise to the injury, and (2) looks to the nature of the
injury. Id.
Regarding the source of the duty:
If the defendant’s conduct . . . would give rise to liability independent of the fact
that a contract exists between the parties, the plaintiff’s claim may also sound in
tort. Conversely, if the defendant’s conduct . . . would give rise to liability only
because it breaches the parties’ agreement, the plaintiff’s claim ordinarily sounds
only in contract.
Id. at 494; see also Peco Constr. Co. v. Guajardo, 919 S.W.2d 736, 738 (Tex. App.—San
Antonio 1996, writ denied); see also Richardson v. Bigelow Mgmt., Inc., No. 05-06-00213-CV,
2007 WL 1139775, at *4 (Tex. App.—Dallas Apr. 18, 2007, no pet.) (mem. op.) (affirming a
summary judgment disposing of a contract claim where the alleged breach of duty arose from
common law, not the contract, and therefore the plaintiffs claim sounded in tort).
As to the nature of the injury, a plaintiff’s cause of action is ordinarily contractual if the
only loss or damage is to “the subject matter of the contract.” See DeLanney, 809 S.W.2d at 494;
Jim Walter Homes, 711 S.W.2d at 618. Generally, in the context of a contract for the sale of
goods, the subject matter of the contract is the product itself. See Mid Continent Aircraft Corp.
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v. Curry Cnty. Spraying Serv., Inc., 572 S.W.2d 308, 312–13 (Tex. 1978) (“Distinguished from
personal injury and injury to other property, damage to the product itself is essentially a loss to
the purchaser of the benefit of the bargain with the seller.”); see also Equistar Chems., L.P. v.
Dresser–Rand Co., 240 S.W.3d 864, 867 (Tex. 2007). In the context of a service contract, the
subject matter of the contract generally does not include other property that is not a part of the
contract. See Goose Creek Consol. Indep. Sch. Dist. of Chambers & Harris Cntys., Tex. v.
Jarrar’s Plumbing, Inc., 74 S.W.3d 486, 495 (Tex. App.—Texarkana 2002, pet. denied) (“[T]he
injury [that the damaged party] alleged, the invasion of sewage and sewer gas into the school
buildings, constitutes an injury to property that was not the subject matter of the contract, . . .
namely the plumbing.”); Thomson v. Espey Huston & Assocs., 899 S.W.2d 415, 422 (Tex.
App.—Austin 1995, no writ) (“[T]o the extent that the alleged inadequacies caused damage to
parts of the property beyond [the parties’] contract, [the damaged party] also has a tort claim.”).
C. The Directed Verdict Was Not Erroneous
Flying J construes the broad language in Scharrenbeck to support its contention that it
may sue for damage to the diesel line and the resulting lost profits under either a breach of
contract or tort cause of action or both. See Scharrenbeck, 204 S.W.2d at 510. However,
Scharrenbeck is distinguishable. The consumers in Scharrenbeck had a negligence claim
because their home burned down; they also had a breach of contract claim because their water
heater was not repaired properly. See Scharrenbeck, 204 S.W.2d at 510–511; see also
DeLanney, 809 S.W.2d at 494 (summarizing Scharrenbeck and noting that the failure to repair
the water heater properly was a breach of contract and the destruction of the consumers’ home
was a breach of a common-law duty). These different types of property damage in Scharrenbeck
explain the court’s use of the phrase “as well as.”
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Contrary to Flying J’s contention that Scharrenbeck’s language is controlling, analysis
under the two-part test adopted in DeLanney is the proper approach for determining whether
Flying J’s remedy sounds in contract, tort, or both. See DeLanney, 809 S.W.2d at 494–95.
1. Source of the Duty
At trial, Flying J focused on its negligence claim; very little time was spent on the
specific nature of Flying J’s breach of contract claim against Meda. Both parties agree Meda had
a contractual duty to repair Flying J’s water line. Meda also had a common law duty to avoid
damaging Flying J’s other property, and this duty arose independently of the existence of their
contract. See DeLanney, 809 S.W.2d at 494; Peco Constr., 919 S.W.2d at 738. The issue is
whether Meda had a contractual rather than common law duty to avoid contact with the diesel
line. Proposals had been submitted by Meda to address the diesel line, but they were not
accepted by Flying J prior to the incident. Flying J has failed to address the first prong of the
DeLanney test altogether and has pointed to no evidence that avoiding contact with the diesel
line was a duty that arose from the contract. After reviewing the record, we conclude there is no
evidence to support that Meda had a contractual rather than common law duty to avoid contact
with the diesel line. Under the source-of-duty test, Flying J’s cause of action sounds only in tort.
See DeLanney, 809 S.W.2d at 494; Richardson, 2007 WL 1139775, at *4.
2. Nature of the Injury
The damage to Flying J’s property was beyond the contract—the bargained for exchange
called for repair of a leaking water line in exchange for an agreed upon price. The injury that
Flying J alleged was the contamination of its surrounding property caused by damage to its fuel
line. However, this damage was not the subject matter of the contract. See Goose Creek, 74
S.W.3d at 494–95; Thomson, 899 S.W.2d at 422; cf. Jim Walter Homes, 711 S.W.2d at 618
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(holding that because the homeowners’ “injury was that the house they were promised and paid
for was not the house they received,” they did not have a viable negligence cause of action—i.e.,
the construction of the home itself was the subject matter of the contract). Thus, the nature of the
injury sounds in tort. See DeLanney, 809 S.W.2d at 494.
3. Conclusion
Analysis under the two-part test set forth in DeLanney supports the determination that (1)
the duty to avoid damaging Flying J’s property arose from a common law duty independently
from the existence of the service contract, and (2) the nature of the injury involved damage to
property that was not a part of the subject matter of the contract. See id. at 494–95. As such, the
proper basis for recovery for the damage to Flying J’s diesel line was solely in tort. See id.
Accordingly, the trial court did not err in directing a verdict on the breach of contract issue in
favor of Meda. See Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 220 (Tex.
2011); State Office of Risk Mgmt. v. Martinez, 300 S.W.3d 9, 12 (Tex. App.—San Antonio 2009,
pet. denied).
COMMENT ON THE WEIGHT OF THE EVIDENCE
In its next point, Flying J argues that the trial court impermissibly commented on the
weight of the evidence when it submitted Meda’s questions and instructions on breach of
contract because the questions included the actual amounts of the invoices.
A. Standard of Review
When submitting a charge to the jury, a trial court may not “comment directly on the
weight of the evidence or advise the jury of the effect of [its] answers.” TEX. R. CIV. P. 277;
Alvarez v. Mo.–Kan.–Tex. R.R. Co., 683 S.W.2d 375, 377 (Tex. 1984). Whether a trial court
impermissibly comments on the weight of the evidence is a question of law reviewable de novo.
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Schorlemer v. Reyes, 974 S.W.2d 141, 146 (Tex. App.—San Antonio 1998, pet. denied) (citing
City of Pearland v. Alexander, 483 S.W.2d 244, 249 (Tex. 1972)). A trial court impermissibly
comments on the weight of the evidence when it “indicate[s] the opinion of the trial judge as to
the verity or accuracy of the facts in inquiry.” In re M.S., 115 S.W.3d 534, 538 (Tex. 2003)
(citation and internal quotation marks omitted). However, an incidental comment on the weight
of the evidence is not grounds for reversal unless the error probably caused the rendition of an
improper judgment. See TEX. R. APP. P. 44.1; TEX. R. CIV. P. 277; Plainsman Trading Co. v.
Crews, 898 S.W.2d 786, 791 (Tex. 1995).
B. The Trial Court Did Not Err
Following the directed verdict on Flying J’s breach of contract action, the case went to
the jury on Meda’s breach of contract action. It was undisputed that Meda rendered plumbing
services, submitted the amounts on the invoices to Flying J, and a Flying J manager signed the
invoices. 1 Further, the invoices at issue were admitted into evidence. The parties did not dispute
the amount of the invoices. Thus, the inclusion of the invoice amounts was not erroneous as they
were not factually disputed. See TEX. R. CIV. P. 302; Chilton Ins. Co. v. Pate & Pate Enters.,
Inc., 930 S.W.2d 877, 895 (Tex. App.—San Antonio 1996, writ denied). As a result, there was
no impermissible comment on the weight of the evidence. Therefore, the trial court did not err.
Even if the trial court’s charge could be construed as a comment on the evidence, the use
of the phrase in question 2, “What some of money, if any, . . . would fairly compensate Meda,”
would have mitigated any perceived comment on the evidence. (emphasis added). See Rowe v.
Rowe, 887 S.W.2d 191, 200 (Tex. App.—Fort Worth 1994, writ denied). Moreover, both paid
and unpaid invoices were introduced into evidence to establish the two parties’ prior history of
1
At trial the parties focused on the potential offsets due to competing breach of contract claims.
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transactions. Identifying the unpaid invoices in the jury question aided the jury in distinguishing
paid from unpaid invoices.
Considering the charge in its entirety, we determine that the inclusion of the amounts and
invoices in the jury questions was not reasonably calculated to and probably did not cause the
rendition of an improper judgment. See TEX. R. APP. P. 44.1; In re M.S., 115 S.W.3d at 538; see
also Rowe, 887 S.W.2d at 200.
FLYING J’S BREACH OF IMPLIED WARRANTY QUESTION
Flying J also contends that the trial court erred in (1) granting a directed verdict and
dismissing its cause of action for breach of the implied warranty of good and workmanlike
service, and (2) failing to submit the issue of breach of implied warranty to the jury.
A. Standard of Review
As addressed above, if there is any probative evidence raising a fact issue on a material
question, a directed verdict is not proper and the issue must go to the jury. See Exxon Corp., 348
S.W.3d at 220–21; Collora, 574 S.W.2d at 68; Martinez, 300 S.W.3d at 12.
A jury question that is raised by the pleadings and evidence shall be submitted to the jury
by the court. TEX. R. CIV. P. 278; see Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166
(Tex. 2002). Of particular import in this case, as later discussed, is that a trial court’s erroneous
refusal to submit an issue to the jury will not be overturned if it is harmless. See Shupe v.
Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006) (per curiam); Boatland of Houston, Inc. v. Bailey,
609 S.W.2d 743, 750 (Tex. 1980), superseded by statute on other grounds, TEX. CIV. PRAC. &
REM. CODE ANN. § 82.005 (West 2005), as recognized by Smith v. Aqua-Flo, Inc., 23 S.W.3d
473, 478 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).
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B. Implied Warranty of Good & Workmanlike Services
An implied warranty exists to repair or modify existing tangible goods or property in a
good and workmanlike manner. Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 354 (Tex.
1987). “Good and workmanlike” is defined “as that quality of work performed by one who has
the knowledge, training, or experience necessary for the successful practice of a trade or
occupation and performed in a manner generally considered proficient by those capable of
judging such work.” Id. This warranty cannot be waived or disclaimed. Id. at 355.
Claims for breaches of implied warranty are subject to the proportionate responsibility
guidelines of Chapter 33 of the Texas Civil Practice and Remedies Code. JCW Elecs., Inc. v.
Garza, 257 S.W.3d 701, 705, 707 (Tex. 2008); see also Cressman Tubular Prods. Corp. v. Kurt
Wiseman Oil & Gas, Ltd., 322 S.W.3d 453, 460 (Tex. App.—Houston [14th Dist.] 2010, pet.
denied) (citing JCW Electronics and noting that Chapter 33 applies to breach of implied warranty
claims for “personal injury, property damages, or death”). Thus, a party whose percentage of
responsibility exceeds 50% is barred from recovering on a breach of implied warranty claim.
See JCW Elecs., 257 S.W.3d at 707 (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 33.001 (West
1995)).
C. Flying J’s Comparative Negligence Bars Recovery
Here, Flying J submitted probative evidence and raised an issue of fact regarding whether
Meda breached the implied warranty to complete its services in a good and workmanlike
manner. Cf. Melody Home, 741 S.W.2d at 354. Meda’s manager admitted at trial that using the
backhoe was “stupid” and that his crew should not have used a backhoe near the diesel line.
Flying J’s expert witness testified that using the backhoe while excavating near the diesel line
was not appropriate and was not good and workmanlike. Considering this probative evidence of
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breach of the implied warranty, the trial court erred in granting a directed verdict against Flying
J’s breach of implied warranty. See Exxon Corp., 348 S.W.3d at 220–21; Collora, 574 S.W.2d at
68; Martinez, 300 S.W.3d at 12. Moreover, because the issue was raised by the pleadings and
the evidence, the court erred in refusing to submit the issue to the jury. See TEX. R. CIV. P. 278;
Williams, 85 S.W.3d at 166. Our inquiry does not end here, however.
Generally, courts do not engage in harm analysis when determining whether to reverse a
directed verdict where some evidence of a material fact exists. See, e.g., Collora, 574 S.W.2d at
68 (“When reasonable minds may differ as to the truth of controlling facts, the issue must go to
the jury.”). “However, in at least one instance, the Texas Supreme Court has held that a
procedural error in granting a directed verdict before the close of evidence did not require
reversal where no harm was shown.” Martinez, 300 S.W.3d at 12 (citing Tana Oil & Gas Corp.
v. McCall, 104 S.W.3d 80, 82 (Tex. 2003)). See generally TEX. R. APP. P. 44.1(a)(1) (“No
judgment may be reversed on appeal on the ground that the trial court made an error of law
unless the court of appeals concludes that the error complained of . . . probably caused the
rendition of an improper judgment . . . .”); G & H Towing Co. v. Magee, 347 S.W.3d 293, 297
(Tex. 2011) (per curiam) (“The [harmless error] rule applies to all errors.”). Likewise, this court
has found that when a jury’s finding on one issue precludes recovery on a second issue as a
matter of law, any error in directing a verdict on the second issue is harmless. See Cortez ex rel.
Estate of Puentes v. HCCI–San Antonio, Inc., 131 S.W.3d 113, 122 (Tex. App.—San Antonio
2004), aff’d, 159 S.W.3d 87 (Tex. 2005); Gonzales v. Willis, 995 S.W.2d 729, 739 (Tex. App.—
San Antonio, 1999 no pet.), abrogated on other grounds by Hoffmann–La Roche Inc. v.
Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004).
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In this case the error was harmless because the jury’s proportionate responsibility
findings bar Flying J’s recovery. See JCW Elecs., 257 S.W.3d at 707. The jury apportioned
Flying J’s fault at 80%; therefore, Flying J was precluded from recovering on its breach of
implied warranty cause of action. See id.; see also TEX. CIV. PRAC. & REM. CODE ANN. § 33.001
(West 2008). Accordingly, the trial court’s grant of a directed verdict is not reversible error. See
Tana Oil & Gas, 104 S.W.3d at 82; Cortez, 131 S.W.3d at 122. Likewise, the trial court’s
refusal to submit the issue to the jury will not be overturned. Shupe, 192 S.W.3d at 579; Bailey,
609 S.W.2d at 750.
LEGAL & FACTUAL SUFFICIENCY OF THE JURY VERDICT
Flying J also contends that the evidence adduced at trial was legally and factually
insufficient to support the jury’s apportionment of fault between Meda and Flying J.
A. Legal Sufficiency
1. Standard of Review
When reviewing a legal sufficiency challenge, appellate courts must determine “whether
the evidence at trial 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). Legal-sufficiency review,
therefore, requires this court to give effect to “favorable evidence if reasonable jurors could, and
disregard contrary evidence unless reasonable jurors could not.” Id. Reviewing courts are not
permitted to impose their own opinions opposing a jury’s determination of the credibility of
witnesses and the weight afforded their testimony. Id. at 819.
2. The Evidence Was Legally Sufficient
Meda presented legally sufficient evidence to support the jury’s finding of Flying J’s
80% comparative negligence. Evidence adduced at trial showed that in February of 2002 Meda
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twice advised Flying J that its water line should be removed from the same trench as the fuel
line. Flying J refused these proposals. When Meda again repaired the water line in June of
2002, a Meda employee, Joe Tobar, explained to a Flying J manager the importance of turning
off the water supply during the repairs. Testimony showed that the Flying J manager refused to
comply with the request. As a result, water continued to leak into the trench where the water line
was being repaired. This excess leakage decreased visibility in the trench and precluded Meda
from using a cement thrust blocker that may have protected the water line. Tobar also testified
that while performing the work, a Flying J manager told the Meda employees to “hurry along”
and instructed them to use a backhoe instead of using non-machine operated tools. Additional
evidence showed that blueprints Flying J gave Meda were defective—the blueprints did not
show the actual locations of the water line. We conclude that the evidence was legally sufficient
to support the jury’s finding on comparative negligence. See City of Keller, 168 S.W.3d at 827.
B. FACTUAL SUFFICIENCY
1. Standard of Review
In reviewing a factual insufficiency point, this court must weigh all of the evidence in the
record. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam). A factual sufficiency
attack on an issue on which the appellant did not have the burden of proof requires the
complaining party to demonstrate there is insufficient evidence to support the adverse finding.
Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). A reviewing court will reverse the trial
court “only if the evidence which supports the jury’s finding is so weak as to be clearly wrong
and manifestly unjust.” Star Enter. v. Marze, 61 S.W.3d 449, 462 (Tex. App.—San Antonio
2001, pet. denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)); see also Dyson v.
Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985). At trial, Meda had the burden of proving Flying
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J’s comparative negligence. Accordingly, Flying J must show there was insufficient evidence to
support the jury’s finding that Flying J was 80% responsible. See Croucher, 660 S.W.2d at 58.
2. The Evidence Was Factually Sufficient
The evidence was undisputed that Meda had performed work on the pipe at issue on at
least two occasions prior to the accident in question. Notwithstanding the fact that Flying J
supplied Meda with inaccurate blueprints, Meda knew that the water pipe lay in close proximity
to the diesel line and undertook repairs with that knowledge. A Meda representative testified
that he had written a letter acknowledging the repair of the diesel line was “a direct result of
[Meda’s] placing the pinhole in the line.” Additionally, a Meda witness testified that his “guys
knew not to use a tractor in that area.” While this evidence supports a finding that Meda was
negligent, we cannot say that the evidence supporting the finding was so weak as to be clearly
unjust or wrong. See Star Enter., 61 S.W.3d at 462; see also Dyson, 692 S.W.2d at 457. Flying
J knew that its water line should not have been in the same trench as its diesel line. There was
evidence that Flying J’s refusal to shut off the water supply affected visibility. Further, there was
evidence that Meda used the backhoe in accordance with Flying J’s instructions. Accordingly,
the evidence is factually sufficient to support the jury’s apportionment of fault to Flying J.
CONCLUSION
The trial court did not err in granting a directed verdict against Flying J’s breach of
contract and breach of implied warranty causes of action. Further, the trial court did not
impermissibly comment on the weight of the evidence. Finally, the evidence was legally and
factually sufficient to support the jury’s findings on negligence and apportionment of fault.
Accordingly, the trial court’s judgment is affirmed.
Rebecca Simmons, Justice
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