BEN EMERSON and wife,FROM A DISTRICT COURT JEAN EMERSON, APPELLANTS, v. WINFORD TUNNELL, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-01468-CV
 
BEN EMERSON and wife,FROM A DISTRICT COURT
JEAN EMERSON,
 
        APPELLANTS,
 
v.
 
WINFORD TUNNELL,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES McCLUNG, ROWE, FN:1 BURNETT
OPINION BY JUSTICE McCLUNG
AUGUST 25, 1989
        Winford Tunnell, a builder, sued Ben and Jean Emerson to recover the balance due on a custom home he constructed for the Emersons. The Emersons appeal from the judgment against them based on jury findings that there was no oral contract between the parties and that Tunnell should recover under quantum meruit. The Emersons' complaints can be summarized as follows: Because Tunnell made a "judicial admission" that he had agreed to build the house for $176,800, the jury's finding that there was not a contract and that Tunnell should recover $238,000 under quantum meruit is not supported by the evidence; that the jury's finding of $25,000 in "extras" to the house is against the great weight and preponderance of the evidence; that the trial court erred in awarding prejudgment interest; that the case should be remanded for a new trial because of an erroneous instruction to the jury on the definition of a contract; and that the case should be remanded for a new trial because the trial court declined to submit special issues on whether Tunnell engaged in unconscionable conduct.
        Many of the facts which precipitated this lawsuit were hotly disputed at trial. It is undisputed that in February, 1983, discussions began between the Emersons and Tunnell regarding the construction of a custom home. Tunnell submitted a bid based on the plans and specifications prepared by the Emersons' architect. The plans specified 3,256 square feet of living area and 1,082 square feet of garage and porches. It is at this juncture that the parties had divergently opposed versions of what was discussed and agreed upon. Tunnell maintained that he bid $54 per square foot for the living area of the house and $30 per square foot for the garage and porches, plus extras. This computed to approximately $208,000. He also figured in a $10,000 to $14,000 profit. Mr. Emerson's version was that the bid was for $53 per square foot for the living area but that, in any event, the total contract price was fixed in the range of $175,000. No written contract was ever executed, and both parties now vehemently disagree on what the agreement was.
        During construction, many additions and deletions to the plans were made. Throughout the course of construction, the Emersons made periodic progress payments to Tunnell totaling approximately $167,380. As the house neared completion, the Emersons moved in and began living in the house. Thereafter, the parties discussed the balance due for the construction as well as the cost of the extras, but no agreement was reached. As a result, the Emersons refused to make further progress payments, and Tunnell refused to do any further work on the house. Attempts to reach a settlement failed, and Tunnell ultimately filed suit seeking relief on an oral contract to build the house or, alternatively, recovery under quantum meruit.
        The Emersons counterclaimed for their offsets and damages. At trial, the Emersons raised numerous defenses contending: that there were defects in the house; that Tunnell had never advised them they were going over budget; that Tunnell had not fulfilled various promises about the quality of the house; and that Tunnell had mistakenly bid the house too low. The jury concluded there was no meeting of the minds and thus no oral contract existed, but they did find Tunnell had substantially completed the house and was entitled to recover $238,000 under quantum meruit, less $8,000 necessary to complete the house. The jury awarded the Emersons $1,800 based upon their finding that Tunnell represented the house would have characteristics that it did not have. It is not clear from the record upon which specific characteristics they based this finding. The trial judge entered judgment, reducing Tunnell's award of $238,000 to $208,284 based on the theory that Tunnell should not be entitled to recover more under quantum meruit than he would have under the alleged contract.
        The Emersons first contend that because Tunnell made a judicial admission when he testified in his deposition that he had agreed to build the house for $176,800, he, therefore, was precluded from recovering any more than this under either a contractual or quantum meruit theory.
        The term "judicial admission" connotes a deliberate, clear, and unequivocal formal act done in the course of a judicial proceeding. It amounts to a waiver of proof in favor of the opposing party and binds the declarant to an essential fact which is contrary to his theory of recovery or defense. Griffin v. Superior Ins. Co., 161 Tex. 195, 201-02, 338 S.W.2d 415, 418-19 (1960). Because the effect is that the declarant swears himself out of court, the principle is applied with caution. United States Fidelity & Guar. Co. v. Carr, 242 S.W.2d 224, 228 (Tex. Civ. App.--San Antonio 1951, writ ref'd).
        A true judicial admission is usually found in the pleadings or in a stipulation of the parties, and this Court has previously held that "deposition testimony does not rise to the level of a judicial admission." Adams v. Tri-Continental Leasing Corp., 713 S.W.2d 152, 154 (Tex. App.--Dallas 1986, no writ).
        A five-pronged test is used to determine whether a party should be precluded from recovery by his own testimonial declaration:
        (1) that the declaration relied upon was made during the course of a judicial proceeding;
 
        (2) that the statement is contrary to an essential fact embraced in the theory of recovery or defense asserted by the person giving the testimony;
 
        (3) that the statement is deliberate, clear, and unequivocal. The hypothesis of mere mistake or slip of the tongue must be eliminated;
 
        (4) that giving conclusive effect to the declaration would be consistent with the public policy upon which the rule is based;
 
        (5) that the statement is not also destructive of opposing party's theory of recovery.
United States Fidelity & Guar. Co., 242 S.W.2d at 229. Under this test, Tunnell's statement does not qualify because the admission must be clear and unequivocal. See Gevinson v. Manhattan Constr. Co., 449 S.W.2d 458, 466 (Tex. 1969). Although Tunnell stated that he had agreed to build the house for $176,800, he also testified to the contrary, insisting he was bidding on a square foot amount and that if the Emersons had computed the total correctly based on his square foot price, the total would compute to more than $200,000.
        The Emersons also argue that the mechanic's lien affidavit filed by Tunnell is a judicial admission. We hold that because this affidavit was not made during the course of a judicial proceeding, it does not constitute a judicial admission. See American Baler Co. v. SRS Systems, Inc., 748 S.W.2d 243, 247 (Tex. App.--Houston [1st Dist.] 1988, writ denied). Documents which are admitted to show that statements made prior to trial are inconsistent with statements alleged at trial do not constitute judicial admissions. American Baler Co., 748 S.W.2d at 247. We overrule point of error one.
        The Emersons claim the evidence proved that, as a matter of law, an oral contract existed between the parties, and that the jury's finding of no oral contract was against the great weight and preponderance of the evidence.
        To overcome an adverse finding as a matter of law, we first examine the record for evidence that supports the findings while ignoring all evidence to the contrary. If there is no evidence to support the fact finder's answer, we then examine the entire record to see if the contrary proposition is established as a matter of law. Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982). To evaluate the sufficiency of the evidence to support the finding, we must consider all of the relevant evidence in the record. The finding may be set aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
        The jury heard evidence that Tunnell had been in the construction business for over twenty-five years when he made a "per square foot" bid on constructing the Emersons' new home, as the Emersons requested. Tunnell testified that he submitted a bid of $54 per square foot for the living area and $30 per square foot for the garage, porches, and patios, based on the plans and specifications prepared by the Emersons' architect. According to those plans, the bid totaled $208,284.
        Tunnell testified that when he orally conveyed his per square foot bid to the Emersons, they inquired what the total price would be. During this discussion, the Emersons tried to compute the total price and came up with a total cost of approximately $175,000 or $176,000. Tunnell told the Emersons that could not be correct because he had previously calculated the total to be a figure of over $200,000, and then tried to figure it himself. He misplaced his decimal point and came up with $176,266. Tunnell then told the Emersons that was not correct either--that neither of them had the correct total. Tunnell maintained that the correct total was not that important to him because he used a square foot price and there were always extras and changes in a custom built house which invariably affected the total; that as long as he recovered his $54/$30 per square foot price, his costs would be covered. The Emersons had agreed to pay extra for any changes in the plans.
        Tunnell also testified that there was no further discussion of a total price; that the $54/$30 bid was agreed upon; that the Emersons did not seem interested in a total price since they specified that his quote be based upon square footage. Tunnell was willing to either sign a written contract or, to just handshake on the agreement. Tunnell was willing to arrange interim financing by signing a mechanic's lien contract and assigning it to a bank. The Emersons decided they did not want to proceed on that basis because they did not want a lien against their house.
        Summarized, Tunnell's version was that his bid was for $54/$30, plus extras; no completion date was promised; he did not agree to include extras, such as tile on the porch, at no cost; he did not agree to use specific brand names; and there was no agreement to show the Emersons copies of all his invoices.
        The Emersons contradicted nearly every material element of Tunnell's version. Mr. Emerson stated, by deposition, that at the time their architectural plans were drawn, he and his wife had not given any thought to a total price and had only determined that building costs should be in the neighborhood of $53 per square foot, and that he felt a bid of more than $53 was too high.
        At trial, however, Mr. Emerson testified that the total cost had always been his paramount consideration and that he had determined not to spend more than $175,000. Mr. Emerson agreed that Tunnell had originally bid $225,000 or $235,000, but insisted that Tunell later reduced the price to $172,568. Mr. Emerson also insisted that Tunnell had agreed to include certain extras not originally included in the plans--such as tile on the porch--at no extra cost; that Tunnell had agreed to install only Owens-Corning brand insulation; that Tunnell would show the Emersons all invoices from his subcontractors and suppliers; and that Tunnell would provide interim financing without requiring a lien on the property.
        Finally, Mr. Emerson and Mrs. Emerson both testified that they strongly desired a written contract and repeatedly requested Tunnell to sign a contract, but Tunnell flatly refused. Mr. and Mrs. Emerson also testified that at the time they were negotiating with Tunnell, they had a bid in hand from another contractor to build the house for $173,000, yet they elected to have Tunnell build their house even though his bid was higher and he had refused to sign a written contract. We conclude that from this evidence the jury could properly have found that there was no meeting of the minds between Tunnell and the Emersons, and therefore no oral contract existed. We overrule points of error three and four.
        The Emersons attack the jury's finding that there was no separate agreement between the parties that the cost for extras to the house would be $18,309 as being against the great weight and preponderance of the evidence. The parties stipulated that the Emersons had agreed to pay the cost of any "extras" to the plans and specifications which had been requested or consented to by them. The dispute at trial was whether every extra had been authorized or approved by the Emersons.
        It was Tunnell's position that he had given the Emersons an allowance toward the cost of items such as plumbing fixtures, kitchen cabinets, electrical outlets, and light fixtures, and when the Emersons were picking out such items, he had always advised them when their choice was over budget. Tunnell further testified that the extras, with the sole exception of the central vacuum system, were requested and authorized by the Emersons and that he did not "force" the Emersons to get any of the extras. The Emersons had not requested the vacuum system and Tunnell had originally intended to provide it at no charge; however, after his inability to collect from the Emersons, Tunnell decided to seek recovery for it as an extra.
        Tunnell acknowledged that in settlement of the dispute he had offered to accept less than the $26,000 cost of the extras by reducing the price of some items and, for others, not charging at all. Since the Emersons refused to settle, he had paid all of the remaining subcontractors' and suppliers' bills, and he now expected full payment for all the extras.
        Mr. Emerson maintained that many of the items listed as extras were not legitimate. He claimed that Tunnell made him take some of the extras, which he did not want, against his wishes. Both Emersons denied that Tunnell gave them an allowance or told them what their budget was when they were picking out expensive items for the house. According to Mr. Emerson, Tunnell refused to say what the budget was. Finally, the Emersons testified they should only have to pay $18,309.18 for the extras since Tunnell had "agreed" that was the amount legitimately due.
        The jury found there was no separate agreement that the cost for the extras was $18,309; but the jury did find that the Emersons had consented to extras in the amount of $25,000, and they owed for these extras. We hold there was sufficient evidence to support the jury's findings. See Tejas Gas Corp. v. Magers, 619 S.W.2d 285, 287-88 (Tex. Civ. App.--Texarkana 1981, writ ref'd n.r.e.). We overrule point of error five.
        The Emersons further claim that the trial court erred in refusing to submit a jury question on whether the Emersons were justified in withholding funds under the mechanic's lien statutes.
        The Emersons requested this question:
        Do you find by a preponderance of the evidence that the Emersons breached the oral contract between Winford Tunnell and the Emersons for the construction of the house in question by failing to pay the balance due, if any, to Winford Tunnell?
 
        ANSWER "YES" OR "NO."
 
        ANSWER: ______________
 
        Instruction:        You are instructed that the term "breach of contract" means the failure, without legal excuse, to perform any promise which forms a whole or part of any agreement.
 
                You are further instructed that during the progress of work for which a mechanic's lien may be claimed and for thirty days after the work is completed, an owner of real property shall retain ten percent of the contract price of the work to the owner or ten percent of the value of the work, measured by the proportion that the work done bears to the work to be done, using the contract price or, if there is no contract price, using the reasonable value of the completed work.
 
                You are further instructed that if the owner fails or refuses to retain such required retainage, the claimants complying with the mechanic lien law shall have a lien, at least to the extent of the amount that should have been retained against the house or improvement and all of its properties and against the lot or lots of land necessary to connect it.
 
                You are further instructed that unless payment is made to the person filing the lien or is otherwise settled or determined, the owner shall retain the funds withheld until the time for securing the mechanic's lien is past or, if a lien affidavit has been filed, until the lien claim has been satisfied or released.
 
 
(Emphasis added.) As of February 22, 1984, the Emersons had paid Tunnell $160,000 although Tunnell had invoices for more than $200,000. On March 6, 1984, the Emersons told Tunnell they would not pay him any more money. The earliest notice of a supplier's intent to file a lien was dated March 9, 1984.
        Following their receipt of notices, and before any liens were filed, the Emersons consulted with an attorney who testified that he advised the Emersons the mechanics' liens on their homestead could not be valid since there was no written contract. See TEX. PROP. CODE ANN. § 53.059 (Vernon 1984). There appears to be no dispute that the new home was the Emersons' homestead. Thus, the Emersons knew that, as a matter of law, there could be no valid mechanic's liens because Tunnell did not have a written contract with the Emersons.
        If a house is constructed to be occupied as a homestead and, thereafter, the owner and his family move in before it is completed and occupy it as a home, the property becomes a homestead from the inception of the construction contract. The materialmen furnishing material to the contractors after the making of the contract cannot acquire a lien. See Republic Guar. & Sur. Co. v. Wm. Cameron & Co., 143 S.W. 317, 320 (Tex. Civ. App.--Texarkana 1912, writ ref'd).
        When the statutory requirements for establishing a lien on a homestead cannot be met, the owner has no duty to retain funds to pay off lien claims by suppliers or subcontractors. Langford v. Reeves, 478 S.W.2d 259, 261-262 (Tex. Civ. App.--Tyler 1972, ref'd n.r.e.). We therefore disagree with the Emersons' position that this constitutes a "legal excuse" for refusing to pay Tunnell.
        In any event, the Emersons were only authorized to withhold the "amount necessary to pay the claims for which" they received notice. TEX. PROP. CODE ANN. § 53.081(a) (Vernon 1984). Here, the Emersons refused to pay before they had received any notices, and, after they subsequently received notices, they continued to refuse to pay Tunnell anything. We overrule point of error seven.
        The Emersons contend that it was error to award prejudgment interest because six mechanic's liens had been filed against the Emersons' house preventing them from paying additional sums to Tunnell. Prejudgment interest was awarded from April 1, 1984.
        Prejudgment interest is recoverable as a matter of right when an ascertainable sum of money is determined to have been due and payable at a definite time prior to judgment. Miner-Dederick Constr. Corp. v. Mid-County Rental Serv. Inc., 603 S.W.2d 193, 200 (Tex. 1980); San Antonio Villa Del Sol Homeowners Assoc. v. Miller, 761 S.W.2d 460, 462 (Tex. App.--San Antonio 1988, no writ). Prejudgment interest may be awarded on recovery in quantum meruit. Black Lake Pipe Line Co. v. Union Constr. Co., 538 S.W.2d 80, 96 (Tex. 1976); McDaniel v. Tucker, 520 S.W.2d 543, 549 (Tex. Civ. App.--Corpus Christi 1975, no writ). This is true even though the amount of Tunnell's recovery was not determined until after the trial. See Irrigation Constr. Co. v. Motheral Contractors, Inc., 599 S.W.2d 336, 343 (Tex. Civ. App.--Corpus Christi 1980, no writ). If the measure of recovery can be "fixed by the conditions existing at the time the injury was inflicted," prejudgment interest should be awarded even if that point in time cannot be determined until after the trial. See McDaniel v. Tucker, 520 S.W.2d at 549, citing, Watkins v. Junker, 90 Tex. 584, 40 S.W. 11 (1897).
        The purpose of awarding prejudgment interest is to make the injured party whole. Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 554 (Tex. 1985); see McCann v. Brown, 725 S.W.2d 822, 824 (Tex. App.--Fort Worth 1987, no writ). In this case, the Emersons have lived in their new house since 1984. They did not pay off the suppliers and subcontractors; Tunnell paid them. In their Second Amended Original Petition the Emersons allege that they stopped making payments to Tunnell in February 1984. Mr. Tunnell testified he stopped working on the house in March of 1984 because he was not being paid. Mr. Emerson testified that in his final meeting with Tunnell on March 6, 1984, Tunnell left the meeting when the Emersons refused to pay him. Thus, Tunnell's measure of recovery was certainly "fixed" as of April 1, 1984, and we conclude that he was entitled to prejudgment interest at least from that date. We overrule point of error eight.
        Point of error six concerns the trial court's failure to submit jury questions regarding whether Tunnell engaged in unconscionable conduct. The Emersons' requested that the jury be instructed that:
        [A]n unconscionable action or course of action means an act or practice which, to a person's detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of a person to a grossly unfair degree.
        A trial court is required to submit questions which are raised by the pleadings and evidence.         TEX. R. CIV. P. 278.
Tunnell argues that there was no evidence that Tunnell took advantage of the Emersons "to a grossly unfair degree," or that the resulting unfairness was "flagrant, complete and unmitigated." We agree.
        The jury found that Tunnell had built the house in a good and workmanlike manner; that Tunnell had not represented to the Emersons that the house would be of a particular quality when it was of another; and that Tunnell had substantially completed the construction of the home. Although Tunnell left the job before it was complete, he left because the Emersons refused to pay him any more money. When Tunnell left the job, he offered to place money into an escrow account to cover completion of the house, provided the Emersons would pay him. Additionally, there was testimony that when Tunnell left the job, the Emersons had a home worth much more than they had paid him. Tunnell's actual cost for the house totaled $222,001.32, although the Emersons had only paid Tunnell $167,378.83. See Chastain v. Koonce, 700 S.W.2d 579, 582-83 (Tex. 1985). The jury denied all the Emersons' claims for damages except for $1,800. We conclude that the trial judge correctly refused to submit such an issue. If we assume, but do not so hold, it was error not to submit this issue, under the facts of this case, such error was harmless. TEX. R. APP. P. 81(b)(1). The jury had all the evidence before it and none of the jury findings suggest there was an "overreaching" by Tunnell.
        The Emersons contend that the trial court erroneously instructed the jury "[f]or a contact to exist, there must be a meeting of the minds as to all the essential terms of the agreement, including price." (Emphasis added.) Tunnell concedes that the instruction was erroneous but contends that such error was harmless.
        Even given the error, this case is not subject to reversal unless the error caused the rendition of an improper judgment. TEX. R. APP. P. 81(b)(1). If the jury found there was no contract because there was no meeting of the minds as to any essential term of the agreement, other than price, Tunnell would be entitled to recover for the reasonable value of the goods and services under quantum meruit. If the jury found there was no meeting of the minds as to price, even if they otherwise found an oral contract existed, they would then have had to determine the reasonable price for building the house. See Bendalin v. Delgado, 406 S.W.2d 897, 900 (Tex. 1966). In their answer to question nine, the jury was asked to determine "the reasonable value of the goods and services provided." This is essentially the same question as if they had been asked to determine the reasonable price to build the house. Therefore, we conclude that the error had no effect on the ultimate verdict of the jury.
        By cross point, Tunnell argues that the trial court erred in limiting the amount of its recovery under quantum meruit to the amount alleged in the contract. Complaints of an alleged error must be raised below to afford the trial court an opportunity to correct any errors. Luna v. S. Pac. Transp. Co., 724 S.W.2d 383, 384 (Tex. 1987); West Texas Utilities Co. v. Irvin, 161 Tex. 5, 7, 336 S.W.2d 609, 610-611 (1960). Tunnell has not indicated where in the record he presented this complaint to the trial court and the record before us fails to reflect this complaint was raised. We note that in the charging conference, counsel for Tunnell commented:
        We stated in chambers the other day that we know that recovery of quantum meriut [sic] would not be greater than the amount we have pled in the contract plans, and we have tailored and amended our pleadings to accurately reflect that.
 
         Tunnell's cross point is overruled. The trial court's judgment is affirmed.
 
                                                          
                                                          PAT McCLUNG
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-01468.F
 
FN:1 Justice Gordon Rowe not participating.
File Date[01-02-89]
File Name[881468F]