Centennial Homes, Inc. v. Joe Walker d/b/a Central Countertops--Appeal from 18th District Court of Johnson County

NO. 10-90-025-CV

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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CENTENNIAL HOMES, INC.,

Appellant

v.

JOE WALKER d/b/a CENTRAL COUNTERTOPS,

Appellee

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From the 18th Judicial District Court

Johnson County, Texas

Trial Court# 271-79

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O P I N I O N

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This suit arose over a contract dispute between appellant Centennial Homes, defendant below, and appellee Central Countertops, the plaintiff. The jury awarded Central Countertops $25,000.00 damages for the appellant's breach of contract. The court then added $40,759.07 as pre-judgment interest before entering its judgment, which we affirm.

Centennial Homes complains in its first point of error that the court erred in awarding pre-judgment interest in addition to the damages set by the jury. It argues that the question to the jury regarding damages included pre-judgment interest because the question was worded as follows: "What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate Plaintiff for damages, if any, caused by the breach of contract, if any, connected to the transaction?" The specific language in this question that Centennial Homes claims causes pre-judgment interest to be included is, "if paid now in cash . . . would fairly and reasonably compensate Plaintiff. . . ." However, the court did instruct the jury to consider only the following elements of damage: (a) loss of net profits, (b) damage to business reputation, (c) expense for salaries paid to employees necessarily employed but made idle, (d) expense for equipment that was not working at full capacity, (e) capital invested in the business but made idle, and (f) charges and expenses for inventory obtained by plaintiff for defendant's work that was not able to be used by plaintiff after the breach, if any. The court further instructed the jury to consider the above elements and "no others." The question affirmatively and expressly limited the elements and factors to be considered in arriving at an amount of damages, and pre-judgment interest was not in that consideration. Clearly, a trial court may award pre-judgment interest in a contract action when the contract itself does not fix the amount of damages. Rio Grande Land & Cattle Co. v Light, 758 S.W.2d 747, 748 (Tex. 1988). We overrule point of error number one.

In the second point, Centennial apparently complains the court erred in failing to instruct the jury that they should not consider a breach of the contract's arbitration clause because it was waived and unenforceable. At trial, the arbitration clause was mentioned and discussed several times by Countertops without objections. Centennial compounded the matter by making statements regarding the arbitration clause while cross-examining appellee's witness and in closing argument. Appellant's failure to object to statements regarding the arbitration clause and its own mention of the arbitration clause bars it from complaining at this time. In order to preserve a complaint for appellate review, the party must have objected at trial. Tex. R. App. P. 52(a); see Larrumbide v. Doctors Health Facilities, 734 S.W.2d 685 (Tex. App--Dallas 1987, writ denied).

Further, appellant's requested instruction, which was rejected by the court, reads as follows:

You are instructed that Centennial Homes did not breach the so-called arbitration provision (paragraph 14.1) of the Subcontract.

The arbitration clause, if unenforceable, was unenforceable as to both parties. The requested instruction directed the jury not to consider whether appellant breached the provisions while leaving the jury free to find that Central Countertops had breached the provision. A substantially correct instruction would have stated that the arbitration provision was unenforceable and was not breached by either party. Centennial's failure to submit a substantially correct instruction regarding the arbitration clause waives any error on this point. See Tex. R. Civ. P 278; Cosgrove v. Grimes, 774 S.W.2d 662, 666 (Tex. 1989). We overrule the second point of error.

Finally, Centennial alleges the trial court erred in not submitting questions to the jury, as follows:

Do you find from a preponderance of the evidence that Central Countertops failed to maintain the daily schedules provided by the production coordinator or the production superintendent?

Do you find from a preponderance of the evidence that Central Countertops failed to provide adequate service?

Do you find that the work by Central Countertops was not of good quality, was not free from faults and defects, and was not in conformance with the contract documents?

The question that was submitted to the jury in the charge reads as follows:

Do you find from a preponderance of the evidence that Defendant Centennial Homes, Inc., materially breached the contract with the Plaintiff Central Countertops?

The jury was also instructed by the court regarding breach of contract, which stated in part that it "is as an unjustified failure of one of the parties to the contract to perform all or any part of what is promised in the contract" (emphasis added). The term "unjustified" accomplishes the same objective as the special questions submitted by appellant. Appellant's questions inquire into whether appellee fulfilled its part of the contract; this same issue is satisfactorily embodied in the court's question and special instruction. The trial court "shall whenever feasible, submit the cause upon broad-form questions." Tex. R. Civ. P. 277. The court's special question accompanied by the instruction embodies the same issues as appellant's propounded special questions. The trial court did not abuse its discretion in the manner the controlling issues were submitted. See Jordan v. Ortho Pharmaceuticals, Inc., 696 S.W.2d 228, 235 (Tex. App.--San Antonio 1985, writ ref'd n.r.e.). We overrule the third point of error. The judgment is affirmed.

BOBBY L. CUMMINGS

Before Chief Justice Thomas, Justice

Cummings and Justice Vance

Affirmed

Opinion delivered and filed

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