Opinion
No. 10-03-00039-CV
Opinion delivered and filed September 15, 2004.
Appeal from the 74th District Court, McLennan County, Texas, Trial Court # 2000-897-3.
Affirmed.
Robert T. Swanton, Jr., Law Office of Robert T. Swanton, Jr., Waco, TX, for appellant/relator.
Andy McSwain, Fulbright Winniford, Waco, TX, for appellee/respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA
MEMORANDUM OPINION
This appeal concerns a suit for breach of contract. We will affirm.
In Appellant's first and second issues, it complains concerning the jury's finding that Appellee did not breach the contract. In Appellant's first issue, it complains that the finding was against the great weight of the evidence. In Appellant's second issue, it complains that the trial court erred in denying Appellant's motion for new trial. Appellant does not dispute the sufficiency of the evidence that the homeowners made a claim for a "major structural defect" in the fifth year of their policy coverage. The parties dispute the evidence that Appellee failed to follow agreed construction standards in building the house. Appellant contends that Appellee failed to build the house in conformance with the "Construction Standards of the Warranty Underwriters Insurance Company for First and Second Year Coverage Agreements," which it introduced at trial. Those standards, by their terms, apply only to a claim for a "defect in materials or workmanship" in the first two years of coverage, and "are not applicable to the extended coverage agreement" that covers claims for "major structural defects." The jury's finding that Appellee did not breach the contract is not contrary to the weight of the evidence. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). We overrule Appellant's first issue. The finding not being contrary to the weight of the evidence, the trial court did not err in overruling the motion for new trial. Cf. Chem. Cleaning, Inc. v. Chem. Cleaning Equip. Serv., Inc., 462 S.W.2d 276, 277 (Tex. 1970) (per curiam). We overrule Appellant's second issue.
In Appellant's third and fourth issues, it complains of the jury's "answer" to the damages question. Since the jury did not find a breach of contract, the jury, as instructed by the trial court, did not answer the question on damages resulting from breach of contract. Evidence is neither factually sufficient nor factually insufficient to support the jury's "answer" to a question that the jury did not answer. The error, if any, would constitute charge error. See Osterberg v. Peca, 12 S.W.3d 31, 56 (Tex. 2000). Appellant does not contend that the predication of the jury's answer to the damages question upon an affirmative answer to the breach question was erroneous. We overrule Appellant's third and fourth issues.
Having overruled Appellant's issues, we affirm the judgment.