Blond Lighting Fixture Supply Co., Inc. v. W.R. Griggs Construction Co., Inc.--Appeal from County Court at Law of Medina County

99-00324 Blond Lighting Fixture Supply Co Inc v WR Griggs Construction Co Inc.wpd No. 04-99-00324-CV
Blond Lighting Fixture Supply Co. Inc.,
Appellant
v.
W.R. Griggs Construction Co., Inc.,
Appellee
From the County Court at Law, Medina County, Texas
Trial Court No. 1054
Honorable Watt Murrah, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice (concurring in the judgment only)

Delivered and Filed: August 16, 2000

AFFIRMED

This is an appeal of a take nothing judgment on a breach of contract and conversion case for stopping payment on a check. Appellant argues that he was entitled to judgment because appellee never filed a written answer in the case, there was sufficient evidence of privity before the trial court, or because he was a holder in due course of the check. We affirm the judgment of the trial court.

Procedural Background

Appellant, Blond Lighting Fixtures Co. Inc. (Blond), sued appellee for breach of contract and conversion for stopping payment on a check. Appellee, W.R. Griggs Construction Co. Inc.(Griggs), never filed a written answer with the trial court. At the onset of the trial on the merits, Blond objected to any appearance by Griggs' counsel and the introduction of any evidence placed on the record by Griggs. Blond's objection was overruled. Blond renewed and restated his objection three other times at the trial: prior to Blond's cross-examination of Griggs' sole witness, before Blond put its first witness on the stand, and during Blond's arguments in chief. The last of these objections was sustained by the trial court; however, the trial on the merits continued unaffected.

After the trial on the merits, the court entered a take nothing judgment in favor of Griggs. Blond subsequently filed his notice of appeal and a request for findings of fact and conclusions of law.

The trial court concluded as a matter of fact that Griggs was the general contractor for the construction of a bank building and retained the services of Shamrock Electric. Blond agreed to and delivered electrical supplies to Shamrock Electric, and Blond did not deliver any supplies or supply any services to Griggs in connection with the construction project. As a matter of law, the court concluded that no contractual relationship existed between the parties to this suit and, without privity of contract between the parties, Blond was not entitled to payment from Griggs.

Argument

In his first point of error, Blond argues that Griggs lost his right to deny liability on appellants action because: 1) his failure to file a written answer establishes as true the facts set forth in his petition; and 2) the trial court sustained appellant's objection on this point.

Griggs contends that Blond is in effect asking for a default judgment to be rendered and that Blond waived its right to a default judgment by failing to take a default prior to the case being called and proceeding to trial without ever requesting that a default judgment be entered. We agree.

The court may render a default judgment on the pleadings against a defendant that has not filed an answer. Webb v. Oberkampf Sup., Inc., 831 S.W.2d 61, 64 (Tex. App.-Amarillo 1992, no writ). After a no-answer default, the only claim the plaintiff is required to prove is its claim for unliquidated damages. See Zuyus v. No'Mis Comm., Inc., 930 S.W.2d 743, 747 (Tex. App.-Corpus Christi 1996, no writ). Blond waived his right to default by failing to timely move for a default judgment. See Foster v. L.M.S. Dev. Co., 346 S.W.2d 387, 397 (Tex. App.-Dallas 1962, writ ref'd n.r.e.); see also Dodson v. Citizens State Bank, 701 S.W.2d 89, 94 (Tex. App.-Amarillo 1986, writ ref'd n.r.e.)(After the parties announce ready for trial and the jury has been selected, it is too late to ask for a default judgment.). Therefore, regardless of whether we accept as true the facts in Blond's petition, Griggs was entitled to contest liability on both the breach of contract claim and the conversion claim. Blond's objection to Griggs' appearance and to the introduction of any evidence was insufficient to preclude Griggs from contesting liability at the trial. Blond's first point of error is overruled.

Next we address Blond's third point of error. Blond's third point of error alleges that the privity between Griggs and Shamrock Electric, a co-payee, is enough to establish privity between Blond and Griggs. Because Griggs failed to file a written answer, we will assume that Griggs has admitted all material factual allegations in Blond's petition. Employers Cas. Co. v. Texas Atty. Gen., 878 S.W.2d 285, 287 (Tex. App.-Corpus Christi 1994, no writ); Fiduciary Mortg. Co. v. City Nat. Bank. Of Irving, 762 S.W.2d 196, 200 (Tex. App.-Dallas 1988, writ denied); Watson v. Sheppard Federal Credit Union, 589 S.W.2d 742, 744 (Tex. Civ. App.-Fort Worth 1979, writ ref'd n.r.e.).

Blond alleged these facts in his petition: 1) Blond delivered goods to Shamrock; 2) Shamrock is a subcontractor of Griggs; 3) Griggs accepted these goods from Shamrock; 4) Griggs incorporated the goods into improvements they made to Community National Bank, Castroville, Texas; 5) Griggs issued a check payable to Shamrock and Blond; 6) Shamrock endorsed the check and delivered it to Blond; 7) the check was dishonored upon presentment, because payment had been stopped by Griggs.

In construction contracts, unless expressly agreed otherwise, a subcontractor is not in privity with the owner and must look to the general contractor, while the owner is liable only to the general contractor. Jensen Construction, Inc. v. Dallas County, 920 S.W.2d 761, 772 (Tex. Civ. App.-Dallas 1996, no writ). Because it is undisputed that there was no express agreement between Blond and Griggs, the trial court correctly held that there was no privity of contract. See Jensen Construction, Inc., 920 S.W.2d at 772. Except for a very few limited situations, privity is an essential element necessary to any recovery in an action based on contract. Id. at 772; See also C & C Partners v. Sun Exploration and Production Co. 783 S.W.2d 707 (Tex. Civ. App.-Dal 1990, no writ). Blond's third point of error is overruled.

In Blond's second point of error, he argues for the first time on appeal that he was a holder in due course of the check; and thus, he takes free of any contractual defenses such as lack of privity. However, Blond cannot assert its holder in due course defense for the first time on appeal. Beach v. Resolution Trust Corp., 821 S.W.2d 241, 244 (Tex. App.-Hous. [1st. Dist.], 1991, no writ). Blond's second point of error is overruled.

For the aforementioned reasons, we affirm the judgment of the trial court.

Tom Rickhoff, Justice

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