Arnulfo T. Carrasco, M.D., ATCMD, Ltd., and La Hacienda De Salud, Ltd. v. F&D Group, Inc.--Appeal from 407th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00529-CV
Arnulfo T. CARRASCO, M.D. and La Hacienda de Salud, Ltd.,
Appellants
v.
F&D GROUP, INC., George Cantu, We B Tan, Inc., and Frank Hunter,
Appellees
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CI-13483
Honorable Karen H. Pozza, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

 

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

 

Delivered and Filed: December 5, 2007

 

AFFIRMED

In this breach of contract action, Arnulfo T. Carrasco, M.D. and La Hacienda de Salud, Ltd. appeal the judgment of the trial court, complaining that the jury's findings are against the great weight and preponderance of the evidence. We affirm the judgment of the trial court.

 

Background Carrasco purchased property on which to build a nine-building complex to house medical practices. The complex is named La Hacienda de Salud, and Carrasco is the principal of the entity. The construction plans, prepared by civil engineering firm Jaster-Quintanilla, required the construction of an electrical duct bank to connect electrical services to the nine-building complex. An electrical duct bank is formed by placing PVC pipes in an excavated trench and then encasing those pipes in concrete. The trench is then refilled and the soil is compacted to ensure that any paved structures built on the surface can withstand the weight of automobile traffic and other stresses. The compaction process involves a series of lifts, which are layers of soil that are placed on top of the excavation and then compressed by large machines that roll over the replaced soil. The construction plans did not define how the electrical duct bank was to be constructed, but deferred to supplemental plans prepared by CPS Energy. The Jaster-Quintanilla plans did, however, include "general notes" concerning the specifications for any excavation/compaction on the property. The notes mandated that the fill material be "compacted to a minimum of 95% of the maximum try density" and that the fill material consist of crushed limestone. Additionally, the notes explained that "a maximum compacted lift thickness of six inches shall be used for all fill material with each lift tested for compliance prior to the addition of subsequent lifts."

Once construction of the complex was under way, Carrasco began seeking bids for the electrical duct bank. In order to obtain the bid, George Cantu, owner of We B Tan, Inc., entered into a consulting agreement with Frank Hunter, Sr., the vice president of F&D Group, Inc., a construction company. Cantu eventually met with Carrasco, at which time Cantu convinced Carrasco to choose F&D to construct the underground electrical duct bank based on its experience with underground utility excavation and construction. The final contract, executed on July 15, 2003, was signed by Carrasco and Frank, Sr. and quoted a final price of $97,080. The project was to be completed within eleven working days and contained a $5,000 per day bonus or penalty clause. The contract, which was drafted by F&D, provided for payment "upon completion," but did not define what circumstances would demonstrate that the project was complete. The contract specified that "proctor and density test[ing]" was excluded, but in parenthesis stated "we pay for retest." Although the contract did not call for it, Carrasco made a down payment of $34,146 to F&D for necessary equipment and supplies.

F&D began work on the project on July 28, 2003 and the actual construction of the electrical duct bank passed all inspections by CPS Energy. F&D completed the project on August 3, 2003, four days ahead of schedule. One day later, Cantu delivered the final bill to Carrasco, which included a $20,000 bonus for early completion. Before paying the bill, Carrasco employed Bobby Burge from Engineering Consulting Services to test the compaction of the soil in the duct bank; Burge concluded that the soil was not properly compacted, and recommended that road paving not commence until the project specifications were met. Thereafter, Carrasco hired Ewing Construction and Huber Contracting (who respectively subcontracted with Pesado Construction and Mesa Equipment) to repair the compaction problems at a total cost of $25,241.99.

Less than thirty days after submitting its final bill, F&D brought suit against Carrasco and La Hacienda de Salud (collectively, "Carrasco") for breach of contract. Carrasco answered, generally denied all of F&D's claims, and specifically denied that F&D had satisfied all conditions precedent under the contract. Carrasco also counter-claimed against F&D, Cantu, and We B Tan, Inc., seeking actual and exemplary damages for breach of contract, breach of warranty, fraudulent inducement, and negligent misrepresentation. The cause was tried to a jury. The court's jury charge consisted of 22 questions. The jury found that Carrasco had failed to comply with the construction contract and that such failure was not excused, awarding damages to F&D in the amount of $62,676.95.

As to Carrasco's claims, the jury made four positive liability findings in favor of Carrasco. Specifically, the jury found: (1) F&D failed to comply with the construction contract and such failure was not excused; (2) Cantu made a negligent misrepresentation on which Carrasco justifiably relied; (3) Cantu fraudulently induced Carrasco to enter the construction contract while acting as an agent for F&D; and (4) the negligence of We B Tan, Inc. in retaining F&D to perform the work proximately caused injury to Carrasco. Despite findings of breach of contract by F&D and tortious acts by Cantu and We B Tan, Inc., the jury awarded Carrasco no damages on each of three damage elements submitted.

Carrasco moved for a new trial, which was denied. The trial court rendered judgment ordering that F&D recover $62,676.95, plus pre-judgment and post-judgment interest, costs, and attorney's fees of $153,116.20 for trial, as well as conditional appellate fees, from Carrasco. Carrasco now appeals, arguing that the jury's failure to find in his favor is against the great weight and preponderance of the evidence.Standard of Review

A party attacking the factual sufficiency of an adverse finding on which he had the burden of proof must demonstrate that the adverse finding is against the great weight and preponderance of the evidence in order to obtain a reversal on appeal. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). In reviewing a challenge that the jury finding is against the great weight and preponderance of the evidence, we first examine the record to determine if there is some evidence to support the finding. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Doctor v. Pardue, 186 S.W.3d 4, 17 (Tex. App.--Houston [1st Dist.] 2006, pet. denied); W. Wendell Hall, Standards of Review in Texas, 38 St. Mary's L. J. 47, 264 (2006). If there is some evidence to support the jury's finding, we must next determine, in light of the entire record, whether that evidence is contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust, or whether the great preponderance of the evidence supports its nonexistence. Pool, 715 S.W.2d at 635 (jury's verdict will be upheld unless it is so against the great weight and preponderance of the evidence as to be manifestly unjust or shocking to the conscience, or clearly demonstrates bias). We may not merely substitute our judgment for that of the jury. Id. The jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). In reviewing great weight points, we must be mindful of the fact that the "jury was not convinced by a preponderance of the evidence." W. Wendell Hall, Standards of Review in Texas, 38 St. Mary's L. J. 47, 264 (2006); see also Peterson v. Reyna, 908 S.W.2d 472, 476 (Tex. App.--San Antonio 1995), modified, 920 S.W.2d 288 (Tex. 1996). Similarly, we recognize the duty to reconcile conflicting jury findings if at all possible. Signal Oil & Gas Co. v. Universal Oil Prods., 572 S.W.2d 320, 326 (Tex. 1978); Rios v. Tex. Dept. of Mental Health & Mental Retardation, 58 S.W.3d 167, 171 (Tex. App.--San Antonio 2001, no pet.).

Analysis

In three issues, Carrasco challenges (1) the jury's findings that Carrasco sustained no damages as a result of the contractual breaches and fraud by F&D and its agents, (2) the jury's failure to find F&D liable for breach of the warranty of good and workmanlike performance and, (3) the jury's failure to find that F&D's prior material breach excused Carrasco's breach of contract. We will address each issue in turn.

1. Zero Damages

Carrasco first maintains that the jury's findings of zero damages are clearly wrong and manifestly unjust in light of adverse liability findings against F&D and its agents and the unrefuted, objective proof of damages arising from those acts. We begin, as we must when considering a factual sufficiency challenge of this nature, by considering and weighing all of the evidence. See Golden Eagle Archery, Inc., 116 S.W.3d at 761-62.

A. Trial testimony

Much of the trial testimony surrounded the issue of compliance with the general notes contained in the engineering plans from Jaster-Quintanilla. Carrasco's project manager, Primitivo Arajuo ("Primo"), testified that F&D was required to follow the Jaster-Quintanilla plans, including the general notes. Those notes mandated that the fill material be "compacted to a minimum of 95% of the maximum try density" and that the fill material consist of crushed limestone. Additionally, the general notes explained that "a maximum compacted lift thickness of six inches shall be used for all fill material with each lift tested for compliance prior to the addition of subsequent lifts." Primo testified that he also advised Frank, Sr. and Cantu of F&D's obligation to schedule soil compaction testing.

Frank, Sr., by contrast, admitted seeing the Jaster-Quintanilla plans, but claimed he never saw the general notes, although he knew from experience that a trench would call for a 95% compaction density. Frank, Sr. testified that he was told by Primo that the job would be done according to CPS Energy plans, meaning that CPS Energy would conduct electrical inspections before concrete could be poured on each lift. Frank, Sr. also testified Primo told him to follow the CPS Energy plans because if CPS is "happy[,] we're happy." As to the construction, Frank, Sr. testified his company excavated a trench at varying depths from 5 feet to 13 feet and installed the duct bank in sections approximately 100 feet in length. Upon completing a section, CPS Energy would inspect and approve the work. Once approved by CPS Energy, that section would be backfilled and compacted.

Frank, Sr. acknowledged that density compliance testing was not performed on a lift-by-lift basis. Instead, after a lift was placed, an F&D employee would simply operate a roller on the lift until it no longer made indentations in the soil. He stated that the lifts used to refill the trench were 12 to 18 inches thick. Frank, Sr. further testified he asked Primo to conduct proctor and density testing; however, Primo never followed through and when Frank, Sr. again asked Primo about testing, Primo said he was not going to pay for it and it was excluded from the contract. Frank, Sr. explained he did not test the soil as F&D filled and compacted each lift because he believed that Carrasco would not pay for the testing. Primo told him that Carrasco "was not going to spend the bucks;" however, Carrasco refuted that assertion, insisting that testing was always of great importance to him.

Frank Hunter, Jr., the F&D foreman for the project, testified that the fill material used consisted of soil that had been excavated from the trench, not crushed limestone; and that the lifts used to refill the trench were between 6 and 12 inches thick. He further testified that he was not given project specifications, but that it was not unusual to do a project without "specs" "as long as you have people out there watching you compact." In this case, Primo was on the job site quite often. When the project first started, he asked for a proctor, but Primo said, "don't worry about it." This did not seem odd to Frank, Jr. because it appeared that the owner, Carrasco, was trying to avoid paying for compaction tests. Frank, Jr. had also worked on "several" other jobs where compaction tests were not performed.

Conflicting testimony was presented as to whether the soil had been compacted to the 95% specification. Frank, Sr. insisted that the soil had been properly compacted and suggested that the testing data to the contrary was inaccurate. He, however, did acknowledge that F&D did not compact the top two feet of the trench because "I knew it was coming out," meaning that the soil was to be removed when the area was cut down to final grade in preparation for roadway pavement. Burge, whom Carrasco retained to test the soil after F&D presented its final bill, testified that his company performed density and moisture testing on two occasions; each time testing four different locations at a depth of four inches. Burge further testified that at the time of his tests, the parking area had already been graded. Of the eight total tests Burge conducted, only one passed the compaction standards. Based on his testing, Burge advised Carrasco against undertaking any paving activities until the compaction problem had been resolved in conformity with project specifications. Burge's method of testing, however, was challenged. Experts for both sides testified that testing at a depth of four inches, as done by Burge, is not indicative of the actual soil compaction below that depth. No other testing was performed.

Phillip King, F&D's engineering expert, testified that F&D had machinery capable of compacting to the density required; however, he did not render an opinion as to whether proper compaction was achieved in this project. Bill Hunter of Pesado Construction, who performed the remedial compaction, testified that when he excavated the fill material installed by F&D, the material was loose, and appeared as though it had not been compacted at all. He noted that according to industry standards, a job is not complete until the compaction standards have been met. However, Bill Hunter also testified that it is not critical to compact the top four inches of soil because it is "going to get proof rolled before it gets base and gets paved." He further testified that when redoing the project he used 8 to 9 inch lifts, not the 6 inch lifts required by the Jaster-Quintanilla plans. Moreover, he did not use crushed limestone to refill the trench for the remedial work.

Paul Murry of Mesa Equipment, who performed remedial compaction, testified that the work performed by F&D needed to be redone. He explained that he could see a valley or depression formed in the shape of a trench. Finally, Jack Dougherty, a civil and geotechnical engineer and an expert for Carrasco, testified that removing the entire trench was one option to remedy the improper compaction, but not the only option.

B. Jury question as to damages

At the conclusion of the evidence, the jury was asked in Question Number 18 to determine "[w]hat sum of money, if any, . . . would fairly and reasonably compensate [Carrasco] for [the] damages, if any, that resulted from the conduct inquired about in [the previous liability questions]?" In response, the jury found zero damages for the cost of remedial work to correct deficiencies in the underground electrical trench, zero damages for the additional cost to retain a project manager for the remedial work, and zero damages for amounts paid to release liens filed by the suppliers of materials and equipment. Similarly, the jury found in response to Question Number 7 that the cost of remedying or repairing any defects in the underground electrical trench due to F&D's errors or omissions was "$0."

C. Analysis

Carrasco argues that the jury's failure to award any damages is clearly wrong and manifestly unjust in light of adverse liability findings against F&D and its agents and the unrefuted, objective proof that Carrasco sustained damages arising from the need to recompact the soil because of F&D's inadequate work. In support of his argument, Carrasco sites numerous cases for the legal proposition that ignoring unrefuted and objective proof that an injury occurred makes the jury's finding contrary to the great weight and preponderance of the evidence. See, e.g., Doctor v. Pardue, 186 S.W.3d 4, 20 (Tex. App.--Houston [1st Dist.] 2006, pet. denied) (holding jury's zero damage findings for plaintiff's past and future physical pain and mental anguish, past and future physical impairment, and past and future disfigurement were against the great weight and preponderance of the evidence in the face of overwhelming and uncontroverted evidence establishing plaintiff's non-economic damages); Monroe v. Grider, 884 S.W.2d 811, 820 (Tex. App.--Dallas 1994, writ denied) (holding jury's finding that plaintiff sustained no past pain and suffering was against the great weight and preponderance of the evidence where uncontroverted evidence of objective injury and medical records documented injuries existed).

In support of his position that there is unrefuted and objective proof of injury, Carrasco emphasizes two premises: (1) there is objective proof in the record that F&D failed to compact at least some of the material in the trench housing the electrical duct bank, forcing Carrasco to incur at least some damages in effectuating necessary repairs; and (2) the failure to properly compact the soil is necessarily the basis for the jury's liability findings. Thus, Carrasco argues the objective and undisputed proof readily demonstrates that the jury's refusal to award any damages for repairing or remedying the trench is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. (1) Based on our review of the record, we do not agree that either premise is the only conclusion this jury could have reached. See McDonald v. Dankworth, 212 S.W.3d 336, 349 (Tex. App.--Austin 2006, no pet.) (concluding jury's awards of zero damages were not against the great weight and preponderance of the evidence where other factors could have contributed to plaintiff's injury).

First, Carrasco maintains that the empirical proof in the record establishes that F&D failed to properly compact at least some of the material used to refill the trench. Although Carrasco concedes that both Frank, Sr. and Frank, Jr. testified the trench was properly compacted, he argues that the only objective evidence in the record readily negates that subjective testimony. Specifically, Burge testified that his firm tested F&D's work and determined that seven different locations on the property failed to meet a 95% compaction standard in the top four inches of soil. In essence, Carrasco argues that because Burge testified based on empirical data, his testimony controls over the subjective testimony of Frank, Sr. and Hunter, Jr. We disagree. A jury is free to accept or reject any testimony. Golden Eagle Archery, Inc., 116 S.W.3d at 761 (jury is the sole judge of the credibility of the witnesses and it is within its province to weigh the evidence and resolve any conflicts). Here, both Frank, Sr. and Frank, Jr. testified the trench was properly compacted based on their own observations and years of experience, which the jury was free to believe. See Thrift v. Hubbard, 974 S.W.2d 70, 77 (Tex. App.--San Antonio 1998, pet. denied) (under factual sufficiency review, we do not pass upon credibility of witnesses or substitute our judgment for jury's, even if there is conflicting evidence upon which a different conclusion could be supported). Nor can we conclude Burge's testimony controls over other testimony simply because he conducted "objective testing" of the soil. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005) (jury may accept lay testimony over that of experts); see also Gregory v. Tex. Emp. Ins. Ass'n, 530 S.W.2d 105, 107 (Tex. 1975) (noting that uncontradicted testimony of expert witnesses must be taken as true insofar as it establishes facts; however, opinions as to deductions from those facts are not binding on the jury). Moreover, all experts agreed that even if the jury accepted Burge's test results, testing was only done on the top four inches of soil and did not indicate the compaction density below that level. Accordingly, we cannot agree, as Carrasco urges, that the record establishes that F&D failed to properly compact at least some of the material used to refill the trench.

The party seeking to recover costs in a breach of contract case has the burden to prove that the damages sought are reasonable. See Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 200 (Tex. 2004) (per curiam); Dallas Ry. & Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377, 382 (1956); GATX Tank Erection Corp. v. Tesoro Petroleum Corp., 693 S.W.2d 617, 619 (Tex. App.--San Antonio 1985, writ ref'd n.r.e.). Here, Carrasco argues that because F&D refused to remedy the improper compaction and because remedial work was necessary in order for Carrasco to open the clinic, the undisputed evidence establishes that Carrasco expended money in an effort to repair those errors. In response, F&D maintains the fact that money was spent to redo the utility trench does not compel the conclusion, as Carrasco argues, that the expenditures were necessary and reasonable. See Mustang Pipeline Co., 134 S.W.3d at 200-01; Gossett, 294 S.W.2d at 382-83. We agree.

As previously noted, both Frank, Sr. and Frank, Jr. testified the trench was properly compacted, which the jury may have believed precluded the necessity for any remedial measures. Moreover, all experts agreed that Burge's testing of only the top four inches of soil did not indicate whether or not the soil below that level was properly compacted. Additionally, while Carrasco argues he was forced to remove at least some of the trench and effectuate necessary repairs, his own expert testified about other options. Jack Dougherty testified that removing the entire trench was one option to remedy the improper compaction, but not the only option. He agreed that instead of removing the entire trench, another option would be to take off the first four inches of soil and then test again, or to take off the top two feet of soil and then test again. On this record, the jury could have determined that Carrasco was not entitled to recover damages because it was unnecessary to undertake the remedial soil compaction. Mustang Pipeline Co., 134 S.W.3d at 200-01 (evidence of money charged and paid does not amount to evidence that payment was reasonable and necessary in breach of contract action).

This leads us to Carrasco's second premise. Carrasco argues that to suggest that remediation of the trench was not reasonable or necessary is untenable because it ignores the jury's liability findings. Carrasco maintains the evidence -- and particularly Frank, Sr.'s testimony -- reveals that the "sole basis" the jury could have found that F&D breached its contract were errors in compacting the trench; i.e., if the compaction of the trench had been proper, the contract would have been fulfilled. He argues the same holds true with regard to the jury's tort findings. Carrasco points out there is no dispute that the duct bank was properly installed and operational and that Carrasco never complained about the excavation. Thus, that leaves only improper compaction as the basis for finding that F&D breached the contract. Again, we respectfully disagree. The Supreme Court has commanded the trial court to use broad-form submissions whenever feasible. See Tex. R. Civ. P. 277 ("In all jury cases the court shall, whenever feasible, submit the cause upon broad-form questions."); Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 663-64 (Tex. 1999). Because of this, a single question may relate to multiple legal theories. See id. at 664. Here, we do not know on what basis the jury found a breach, because the questions relating to breach of contract did not specify the manner of breach by F&D.

There is evidence in this record upon which the jury could have found that F&D breached a requirement under the contract that was not critical to proper compaction of the trench. For example, the jury could have concluded F&D breached the contract when Frank, Sr. admitted he did not compact the upper two feet of the soil. However, the record also contains testimony suggesting such failure would not cause the soil to be improperly compacted. Frank, Sr. testified he did not believe compacting the top two feet of soil was necessary because it was his understanding that such soil would ultimately be removed before paving work began. Bill Hunter, who did the remedial work, testified that it is not critical to compact the top four inches of soil because it is "going to get proof rolled before it gets base and gets paved." Additionally, Frank, Jr. admitted F&D did not use crushed limestone to refill the trench despite that being a requirement under the Jaster-Quintanilla general notes. However, once again, crushed limestone was not used by Bill Hunter when he accomplished the remedial work. Accordingly, when reviewing all the evidence, we cannot agree with Carrasco's premise that failure to properly compact the soil is necessarily the basis for the jury's liability findings against F&D. (2)

Finally, Carrasco argues the jury's award of zero damages for amounts paid to release liens filed by materials suppliers is contrary to the great weight and preponderance of the evidence. Carrasco asserts he is entitled to damages for payments totaling $12,955.30 made to Texana Machinery and National Waterworks to release liens perfected by those entities for construction materials and supplies. He argues that the evidence establishes that the initial down payment he made to F&D contemplated payment of at least some of those materials and supplies. At trial, Frank, Sr. testified that he had not paid the materialmen because he did not receive a bill from them until three weeks after the La Hacienda de Salud project ended and after Carrasco had refused to pay F&D's final invoice of $84,912.73, including the $20,000 early completion bonus. Frank, Sr. further testified that he had incurred attorney's fees associated with defending the claims filed against him by the materialmen. Based on this evidence, the jury could have reasonably concluded that by failing to promptly pay the F&D invoice even though F&D had completed the contract, Carrasco created a situation where it was likely that the materialmen would file liens against his property. Additionally, we note the jury awarded F&D a recovery of $62,676.95, roughly the contract price less the down payment made by Carrasco; however, the jury did not award F&D the $20,000 bonus it sought for early completion. In summary, on this record, we simply cannot conclude that the jury's zero damage award is so against the great weight and preponderance of the evidence as to be manifestly unjust. Accordingly, Carrasco's first issue is overruled.

2. Implied Warranty of Good and Workmanlike Performance

In his second issue, Carrasco maintains that the jury's failure to find F&D liable for its breach of the implied warranty of good and workmanlike performance in response to Question Number 10 is contrary to the great weight and preponderance of the evidence. See Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 354 (Tex. 1987) (defining good and workmanlike as "performed in a manner generally considered proficient by those capable of judging such work"); Barnett v. Coppell N. Tex. Court, Ltd., 123 S.W.3d 804, 823 (Tex. App.--Dallas 2003, pet. denied) ("failure to complete work required to be performed under contract is a breach of the warranty of 'good and workmanlike manner'"). Carrasco again maintains that the jury finding that F&D breached its contract can only relate to F&D's failure to compact the trench in conformity with the project specifications. See Cont'l Dredging, Inc. v. De-Kaizered, Inc., 120 S.W.3d 380, 392 (Tex. App.--Texarkana 2003, pet. denied) (evidence showing that contractor breached construction contract was sufficient to support a finding that contractor breached the implied warranty of good and workmanlike performance).

Based on the record before us, we find the evidence is sufficient to support the jury's finding that F&D did not breach an implied warranty. First, as previously discussed, we do not agree that the finding of breach of contract by F&D necessarily arises from improper compaction of the utility trench. F&D admittedly did not use crushed limestone as fill material and did not compact the top two feet of soil in anticipation of later road grading. Frank, Sr. also stated that when redoing the project he used 8 to 9 inch lifts, not the 6 inch lifts required by the Jaster-Quintanilla plans. However, the evidence also showed that the remedial work was likewise not performed according to all the project specifications. Given this evidence, the jury was free to believe that F&D did not breach the implied warranty of good and workmanlike performance. Accordingly, we cannot conclude that the jury's refusal to find liability against F&D for a breach of the warranty of good and workmanlike performance is contrary to the great weight and preponderance of the evidence. Issue two is overruled.

3. Prior Material Breach

Finally, Carrasco argues the trial court's judgment must be reversed because the great weight and preponderance of the evidence demonstrates that F&D's prior material breach of the construction contract (failure to compact the soil) excused Carrasco's performance (payment under the contract). See Mustang Pipeline Co., 134 S.W.3d at 196 ("It is a fundamental principle of contract law that when one party to a contract commits a material breach of that contract, the other party is discharged or excused from further performance."). F&D responds that because the jury found that F&D substantially performed its obligations under the contract (Question Number 6) and completed the contract (Question Number 20), any breach by F&D was not material. We agree.

In determining the materiality of a breach, courts consider, among other things, the extent to which the injured party will be deprived of the benefit that it could have reasonably anticipated from full performance. See Hernandez v. Gulf Group Lloyds, 875 S.W.2d 691, 693 n.2 (Tex. 1994) (listing other factors courts consider in determining materiality of breach). Although Carrasco argues that his duty to pay was only triggered upon the completion of the contract, and that the contract was never completed because F&D failed to properly compact the soil, the jury found that F&D did complete the contract (Question Number 20). Again, because of broad form submission, we do not know on what basis the jury found that F&D breached its contract with Carrasco. See Hyundai Motor Co., 995 S.W.2d at 664. As previously discussed, F&D admittedly did not use crushed limestone as fill material and did not compact the top two feet of soil in anticipation of later road grading. Based on the evidence, the jury could have believed that such deviations from the general notes, although a contractual breach, did not deprive Carrasco of a material benefit under the contract. Accordingly, his failure to pay F&D was not excused. Based on this record, we cannot say the jury's failure to find Carrasco's breach of contract in not paying F&D was excused is against the great weight and preponderance of the evidence. Issue three is overruled.

The judgment of the trial court is affirmed.

 

Phylis J. Speedlin, Justice

1. Carrasco similarly argues, as to the remaining liability findings, that but for Cantu's fraud and misrepresentations and We B Tan, Inc.'s negligent retention of F&D to perform the work, Carrasco would never have sustained damages "from the improper compaction work done by F&D."

2. For the same reasoning, we reject Carrasco's similar premise that the evidence demonstrates that improper compaction of the trench is also necessarily a basis for the jury's affirmative findings that Carrasco relied upon Cantu's negligent misrepresentations and fraud in entering into the construction contract as well as the jury's finding that We B Tan, Inc. negligently retained F&D to do the work required under the construction contract.