Opinion
No. 01-02-00153-CV.
July 3, 2003.
Appeal from the 80th District Court, Harris County, Texas, Trial Court Cause No. 98-46732.
Chad Michael Forbes, The Wright Law Firm, 4000 Two Houston Center, 909 Fannin Houston, TX 77010, Lucy Haroutunian, The Wright Law Firm, Three Riverway, Suite 1600 Houston, TX 77056, Jon Todd Powell, 314 E. Commerce Street, Suite 710, San Antonio, TX 78205, Thomas C. Wright, The Wright Law Firm, Three Riverway, Suite 1660 Houston, TX 77056, attorneys for Appellant.
Jennifer Horan Greer, Mr. Jeffrey C. Alexander, Robin C Gibbs, Scarlett Elizabeth Collings, Gibbs Bruns, L.L.P. 1100 Louisiana, Suite 5300, Houston, TX 77002, attorneys for Appelle.
Panel consists of Justices HEDGES, NUCHIA, and KEYES.
OPINION
Slosburg Company, Gibraltar Construction Company, and Texas SFI Partnership 24 Limited, appellees, sued Law Engineering Environmental Services, Inc. ("Law"), appellant, for breach of contract for failure to monitor the removal of all debris and to ensure that the soil on Slosburg's property had been properly compacted. Law counterclaimed for breach of contract for failure to pay for services rendered. A jury found that both parties were in material breach of the contract and awarded both parties damages for their respective claims. The trial court offset Slosburg's recovery by the amount awarded Law. Law and Slosburg both appealed. In three issues, Law challenges the legal and factual sufficiency of the evidence supporting the jury's finding that (1) it breached the contract, (2) the breach caused Slosburg's damages, and (3) Slosburg was damaged by the breach. In its sole issue, Slosburg contends that the trial court erred in offsetting its recovery because the jury's finding that Law materially breached the contract precludes recovery by Law on its breach of contract counterclaim. We affirm.
Referred to collectively as "Slosburg."
Background
In 1997, Slosburg purchased 18.47 acres of land located near the Houston Medical Center and planned to build an apartment complex on the site (the Lanesborough). The vacant land had been previously developed. Slosburg hired Third Coast Construction to remove the preexisting foundations, piers, and other debris buried under ground, to backfill the holes, and to compact the soil. Third Coast had discretion to decide on the means and the methods of its performance. Slosburg then hired Law to supply a technician to monitor Third Coast's work, to give Slosburg assurance that everything had been removed from the site, and to certify that all compaction had been done properly. Law had discretion to decide on the means and the methods of its performance. Law sent Fred DaVanon, a soil technician, to monitor Third Coast's work.
Gibraltar was the general contractor of the Lanesborough project. Frequently, during his lunch break, Ron Hanson, a project superintendent for Gibraltar, visited the site to check on Third Coast's progress and spoke with the technician.
Beginning in August of 1997, Law sent Slosburg invoices for the technician's services on the Lanesborough site. Slosburg paid neither those invoices nor any of the subsequent invoices.
In late September, after heavy rains fell, sinkholes formed all over the site. Law made a geotechnical assessment of the property and concluded that the sinkholes were the result of improper compaction of the soil in extracted pier holes. Law recommended that the sinkholes be excavated and the soil recompacted. Subsequently, Slosburg hired Law as the soil engineer, and extensive remediation efforts commenced. During the remediation phase, at least 100 piers and other debris were found in areas previously excavated and in areas not previously excavated.
Standard of Review
In reviewing a legal insufficiency point, we consider only the evidence and inferences that, when viewed in their most favorable light, tend to support the finding, and disregard all evidence and inferences to the contrary. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex. 1992); Frost Nat. Bank f/k/a Nat. Bank of Commerce v. Heafner, 12 S.W.3d 104, 109 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). If there is any evidence of probative force to support the finding, we uphold the finding. Sherman v. First Nat'l Bank, 760 S.W.2d 240, 242 (Tex. 1988); Heafner, 12 S.W.3d at 109. That is, if there is more than a scintilla of evidence, we will not overturn the jury's finding. Sherman, 760 S.W.2d at 242; Heafner, 12 S.W.3d at 109.
In reviewing factual sufficiency, we consider and weigh all of the evidence; we will set aside the verdict only if the evidence is so weak or the finding so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Heafner, 12 S.W.3d at 109. We will not substitute our opinion for that of the trier of fact. Id.
Breach
In its first issue, Law contends that the evidence is legally and factually insufficient to support the jury's finding that it breached the contract. Under the contract, Law was obligated to supply a technician to inspect, test, and certify the completeness of Third Coast's work. Slosburg addressed the following proposal to Law:
As per our discussion Monday, June 23, 1997, I requested that your firm supply a technician on the above site to inspect, test and certify what Third Coast Construction is doing.
The information required from your technician is as follows:
A complete handwritten daily report on what activity went on that day detailing the grids worked in and what was demolished on that day. Reports should be faxed to my office on a weekly basis.
We want complete assurance that everything is removed from this site, so we are left with a clean piece of property. This would include all slabs, grade beams, piers, sidewalks, storm sewers, sanitary sewers, water lines, inlets, retaining walls and so forth.
All compaction that is performed shall be certified by your technician, that it has been done properly and recorded in his daily logs.
Law accepted the offer. Approximately one month later, Slosburg sent Law a letter that referenced the contract and stated, "We are going to require a certification letter from your firm at the conclusion of the demolition addressed to Texas SFI Partnership 24 Ltd., certifying that all underground concrete, utilities, etc. have been removed and any soil placed has been compacted properly." Slosburg concluded, stating, "As we discussed, we are depending on your firm to protect our interests."
The jury found that Law breached the contract but did not specify which contractual obligation Law failed to fulfill. Therefore, we address each of the three above-numbered obligations, in turn.
Daily Reports
The Law technician completed daily reports and faxed them as required under the first term of the contract. The reports detailed the following: (1) the grids worked in; (2) the demolition, excavation, and compaction work if any, done that day; and (2) the tests the technician performed, if any. Slosburg does not dispute that the technician completed daily reports, but argues that he omitted key information that he was required to include. Jeffery Roberts, an engineer for Law, testified that, according to Law's training manual, Law's technicians are required to notify the client of any problems they encounter in person or in their daily reports. Roberts testified that he did not inform Tim Tucker, a Gilbraltar project manager, or any representative of Gilbraltar that the soil technician was not testing below four feet and that due to this limitation, there was a risk that the soil would collapse. Richard Slosburg, president of Slosburg Company, testified that he expected Law to notify his company or Tucker if, because of limited testing, there was a risk that the soil would collapse, or if he observed Third Coast improperly compacting the soil. None of the reports indicate that the technician was not testing the compaction of the soil between four and eight feet, or that Law could not certify that the soil was compacted properly below four feet. Slosburg's president testified that neither he, nor Gilbraltar were notified by Law that its testing would be limited and that as a result, there was a risk that soil would not be properly compacted.
Law does not dispute that the reports do not provide notice that (1) the soil technician was not testing below four feet or (2) that it could certify compaction below four feet. However, the technician testified that he told Ron Hanson, a Gilbraltar project superintendent, that he was not getting into the 8-foot trenches to test compaction because of safety concerns, and instead he was observing the compaction until four feet of backfill was in place and then getting into the trenches to test compaction.
Removal of Debris
Law contends that the evidence is legally and factually insufficient to support a finding that it failed to monitor the removal of the concrete, piers, and other debris. Law contends that it was not asked to monitor Third Coast's removal of debris that (1) could not be seen from the surface or (2) was located in parts of the property not previously excavated. The following testimony supports Law's position. Sayed Ahmed, one of Law's soil engineers, testified that "at least 95-plus percent" of the piers, slabs, concrete, concrete piping, and utilities were removed and that only 3 or 4 percent of the piers were not removed from the area previously excavated. Flannigan, Law's expert, testified that the remediation work was 25 percent broader in scope than the original excavation work. Terry Kavan, a Gibraltar project manager, testified that Law was not responsible for debris that was found in areas not originally excavated.
However, there was evidence that Law was required to remove everything from the site and that during the remediation phase, slabs, piers, utilities, and other debris were found all over the property, including in the previously excavated areas. The second term of the contract required Law to give Slosburg "complete assurance that everything is removed from this site, so we [Slosburg] are left with a clean piece of property," and it references things that could not be seen from the surface. [emphasis added]. Slosburg's president testified that he expected Law to perform this obligation and to inform Slosburg if it could not perform. DaVanon testified that Hanson wanted every bit of concrete removed from the site.
During the remediation process, slabs, piers, utilities, and other debris were found under the previously excavated areas. Scott Bayley, Slosburg's expert on damages, testified that at least 100 piers were not removed during the first excavation. Kavan testified that during the remediation process, concrete from slabs, pavement, entire piers, broken pieces of piers, sanitary sewers, and a storm sewer were found buried in the soil in the areas previously excavated. Hanson testified that, during the remediation phase, Slosburg found "mountains" and "tons" of piers, storm and sanitary sewer lines, old water lines, and old electrical lines, in the areas that had been previously excavated.
There was evidence that this debris could have been seen from the surface. Tucker testified that slabs and site utilities would have been visible from the surface. Kavan testified that the slabs, the pavement, and the sanitary sewers were visible. Kavan also testified that once the slabs were removed, the piers and rebar would have been visible, and that, because the old apartment complex was the first major construction on the property, piers were found only underneath the visible slabs.
Proper Compaction
Law also contends that the evidence is legally and factually insufficient to support a finding that it failed to ensure that the soil was compacted properly. There was substantial evidence that the soil was not compacted properly. Ahmed testified that because the excavated soil had not been properly compacted below four feet, sinkholes formed. Law's geotechnical assessment of the property concluded that the sinkholes were the result of improper compaction of the soil in extracted pier holes.
Law argues that Slosburg waived compliance with the contract's requirement that Law certify all of the compaction because Hanson knew that DaVanon was not getting into the 8-foot trenches to test compaction. Waiver is the intentional relinquishment of a known right by actual renunciation or by intentional conduct inconsistent with claiming the known right. CDB Software, Inc. v. Kroll, 992 S.W.2d 31, 37 (Tex.App.-Houston [1st Dist.] 1998, pet. denied).
The contract obligated Law to certify all compaction. Slosburg presented evidence that no one at Slosburg was informed that certification of the compaction would be limited because of Law's inability to test below four feet. Although he testified that he knew that DaVanon was not testing below four feet, Hanson also testified that Third Coast and DaVanon assured him that Third Coast would achieve 95 percent compaction. Moreover, there was also evidence in the record that Hanson did not have authority to waive compliance with the terms of the contract.
Rule 259 of the Rules of Civil Procedure provides, in relevant part, "upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and no element of which is submitted or requested are waived." Tex.R.Civ.P. 259. No element of waiver was submitted or requested to be included in the charge. Therefore, Law waived this defense. Southwestern Bell Telephone Co. v. DeLanney, 809 S.W.2d 493, 495 (Tex. 1991).
We conclude that there is more than a scintilla of evidence to support the finding that Law materially breached the contract by (1) failing to include problems it encountered in the daily reports, (2) failing to monitor the removal of the debris, and (3) failing to ensure that the soil was properly compacted.
Moreover, the evidence is not so weak nor is the finding so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Although Law presented evidence that is inconsistent with the finding of breach, the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Jones v. Tarrant Util. Co., 638 S.W.2d 862, 866 (Tex. 1982). The trier of fact may resolve conflicts and inconsistencies in the testimony of any one witness as well as the testimony of different witnesses. Webb v. Jorns, 488 S.W.2d 407, 411 (Tex. 1972). This Court cannot substitute its judgment or its opinion for that of the jury. Lofton v. Tex. Brine Corp., 720 S.W.2d 804, 805 (Tex. 1986).
Accordingly, we overrule appellant's first point of error.
Causation
In its second issue, Law contends that the evidence is legally and factually insufficient to support the jury's finding that it caused the damages Slosburg claims. Law's causation point is made up of two arguments: (1) the weather, not Law's breach, caused much of the delay attributed to Law; and (2) the magnitude of the debris located under the property that was not previously excavated, and not Law's breach, was a cause-in-fact of the delay. We address each argument in turn.
First, Law presented evidence that during the remediation phase, it rained or was too muddy to work for approximately 27 days. Law argues that because concrete cannot be poured under these conditions, Slosburg would have encountered delay even if Law had not breached the contract. Second, the excavation of the debris under the property that was not originally excavated caused some of the delay. Kavan and Tucker, of Slosburg, testified that Law was not responsible for debris found under the areas that had not been originally excavated. Law's expert testified that the remediation excavation was 25 percent broader in scope than the original excavation. Yet, Bayley charged the entire cost of remediation to Law. Law argues that this evidence proves that the evidence is legally and factually insufficient to support the jury's finding that it caused the damages Slosburg claims.
Because a broad-form damage question was submitted, the jury was not asked to determine (1) how many days of delay Slosburg suffered due to Law's breach or (2) how much of the remediation costs were attributed to Law's breach. Bayley testified that Slosburg experienced a 181-day delay. In calculating the amount of the delay, he compared the date on which the slabs for the new buildings would have been poured had the excavation process gone according to plan, with the date on which the slabs were actually poured. He testified that it cost $717,000 to remediate the property and that Slosburg suffered approximately $3,500,000 in total damages. The jury awarded Slosburg $2,531,631 in total damages. Because the jury awarded Slosburg less damages than it alleged incurred, and because the jury was not asked to apportion the amount of delay or the remediation costs among the parties, we cannot say that the jury found that Law was responsible for 181 days of delay or for all of the remediation costs. The jury could have taken the rainy days and enlarged scope of the excavation into consideration when it assessed damages. Therefore, we address only the legal and factual sufficiency of the finding that Law caused Slosburg damages, generally, and not the sufficiency of the evidence that it caused specific grounds for recovery alleged by Slosburg.
Law's act or omission was the cause-in-fact of Slosburg's damages if the act or omission was a substantial factor in bringing about the injury that would not otherwise have occurred. Heafner, 12 S.W.3d at 110 n. 4. The second term of the contract required Law to give Slosburg "complete assurance that everything is removed from this site, so we [Slosburg] are left with a clean piece of property." [emphasis added]. To clarify, the contract then provides examples of debris, both that which is and is not visible from the surface, that Slosburg expects to be removed. Slosburg's president testified that he expected Law to perform this obligation and to inform Slosburg if it could not perform. DaVanon testified that Hanson wanted every bit of concrete removed from the site. During the remediation phase, Slosburg had to excavate and compact the same area that Law had originally contracted to monitor and test as well as areas not previously excavated.
The jury could have reasonably concluded that Law was a cause-in-fact of the delay Slosburg suffered. We conclude that this evidence is legally and factually sufficient to support the jury's finding that Law's breach caused Slosburg project to be delayed.
Accordingly, we overrule appellant's second issue.
Damages
In its third issue, Law contends that the evidence is legally and factually insufficient to support the entire amount of the damages the jury awarded Slosburg. In its first argument, Law contends that the judgment must be reversed because there is no evidentiary foundation on which the jury based its damage award. The jury awarded Slosburg $2,531,631 in damages. Law argues that this figure is not in the record, and that no combination of the elements of damages alleged by Slosburg equals this figure.
Law did not object to the submission of a broad-form damage question.
Bayley testified that Slosburg suffered approximately $3,500,000 in damages, and the jury awarded Slosburg $2,531,631. The trier of fact has discretion to award damages within the range of evidence presented at trial. Vingcard v. Merrimac Hospitality Systems, Inc., 59 S.W.3d 847, 865 (Tex.App.-Fort Worth 2001, pet. denied); Duggan v. Marshall, 7 S.W.3d 888, 893 (Tex.App.-Houston [1st Dist.] 1999, no pet.) We are not permitted to disregard the jury's damages finding on the basis that the jury's reasoning in arriving at its figure is unclear. Duggan, 7 S.W.3d at 893. Therefore, because the $2,531,631 jury award is an amount within the range of evidence presented to the jury, we conclude that there was sufficient evidence to support the damage award.
Relying on the supreme court's decision in Texarkana Memorial Hospital, Inc. v. Murdock, Law argues that the jury does not have broad discretion to determine the amount of damages to award when, as here, the finding of damages is readily capable of measurement by a certain standard. 946 S.W.2d 836, 841 (Tex. 1997). Texarkana Memorial Hospital is distinguishable from the case at bar. In Texarkana Memorial Hospital, the plaintiff, alleging medical malpractice, sought recovery for a hospital bill totaling $748,710.44. Id. The jury awarded the plaintiff $500,000 for medical expenses. Id. The patient was treated for more than one condition. Id. The court noted that there was no testimony from any medical expert linking any dollar amount of medical expenses charged by the hospital with treatment by the doctor alleged to have committed malpractice. Id. The court held that "a lay jury cannot be expected to ascertain without guidance from a medical expert which treatment was for meconium aspiration and its effects, and the costs associated with that treatment upon which it could base an award for medical expenses due to Wadley's negligence." Id. The court reversed the judgment of the court of appeals and remanded the cause for a new trial. Id .
In the case at bar, experts for both sides not only testified as to the total value of damages Slosburg suffered, but also broke down the total into elements. Both experts presented different figures for the amount of (1) delay caused by Law's breach, (2) remediation damages, (3) increased concrete costs, and (4) home office expenses. Therefore, unlike the jury in Texarkana Memorial Hospital, the jury in this case had expert guidance and would have been able to ascertain the costs associated with each element of damages and determine an appropriate award.
Delay Period Calculation and Home Office Expenses
In its second argument, Law contends that the evidence is legally and factually insufficient to support the jury's award for Slosburg's damages because Slosburg miscalculated the amount of delay it experienced. Slosburg's expert testified that, due to Law's breach, Slosburg experienced a 181-day delay. In calculating the amount of delay, Bayley compared the date on which the slabs for the new buildings would have been poured had the excavation process gone according to plan, with the date on which the slabs were actually poured. Law argues that rainy days and days during which it was too muddy to work should not have been included in the delay calculation. Law also argues that it was not responsible for the delay caused by the magnitude of the debris located under the property that was not previously excavated.
The jury awarded Slosburg approximately $2,531,631 for all of its damages. This figure was within the range of the total amount of damages Slosburg's expert presented and the total amount Law's expert estimated that Slosburg suffered. It is improper for an appellate court to engage in the conjecture of breaking down a damages award into its component parts. Duggan, 7 S.W.3d at 894. The jury may or may not have included the rainy days and the broader scope of the remediation in arriving at its award. See id. Because the elements of damages were not segregated, it would be improper for us to speculate on how the jury determined the number of days of delay and how it divided the award among remediation costs, lost profits, concrete and drywall costs, and home office expenses. See id.
Slosburg presented evidence that it suffered $3,500,000 damages and Law presented evidence that Slosburg suffered approximately $1,100,000 in damages.
The evidence is legally and factually sufficient to support the jury's finding on the amount of the delay Slosburg suffered due to Law's breach.
Because Law's sufficiency argument regarding Slosburg's unabsorbed home office overhead and cost of capital increase is based solely on its argument that the delay calculation was improper, we conclude that the evidence was legally and factually sufficient to support the jury's award of home office overhead and costs for capital increase.
Remediation Cost
In its third argument, Law contends that the evidence is legally and factually insufficient to support the finding that Law should be charged with the costs to remediate the entire site. Law argues that it had contracted to monitor and test only the original excavation site and that because the scope of the remediation excavation was broader than the original excavation, it should not be charged with all of the remediation costs. Law further argues that because Slosburg's expert presented evidence only of the cost of the entire remediation excavation, there was insufficient evidence of the damages caused by Law. In other words, because Slosburg's expert did not prove the cost of remediating the original areas separate from the cost of excavating and compacting the new areas, there was insufficient evidence of the damage caused by Law independent of all other causes. We disagree.
Flannigan, Law's expert, testified that the remediation excavation was 25 percent broader in scope than the original excavation and that Law had contracted to monitor only the portion of the site that had been originally excavated. On the other hand, Mr. Slosburg testified that Law was obligated to give it complete assurance that everything was removed from the site. The cost of remediating the entire site was $717,201. This was sufficient evidence from which the jury could have determined how much of the remediation costs were caused by Law's breach, according to which testimony it believed.
Lost Profits
Law contends that the evidence is legally and factually insufficient to support the amount of lost profits awarded by the jury. A party may recover lost profits if the amount of those profits is shown by competent evidence with reasonable certainty. Tex. Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.2d 276, 279 (Tex. 1994). "What constitutes reasonably certain evidence of lost profits is a fact intensive determination." Id. The requirement of "reasonable certainty" is intended to be flexible enough to accommodate the myriad circumstances in which claims for lost profits arise. Id. Opinion or estimates of lost profits must be based on objective facts, figures, or data from which the amount of lost profits may be ascertained. Szczepanik v. First Southern Trust Co., 883 S.W.2d 648, 649 (Tex. 1994).
Slosburg presented evidence that it lost lease revenue because (1) the project was delayed 181 days, and (2) the delay caused the Lanesborough to open in a soft real estate market. Bayley testified that if the Lanesborough had opened in March of 1998, as originally planned, the apartments and garages would have been leased to full capacity in two months. Bayley also testified that the actual lease-up rate was much slower because, due to the delay, the Lanesborough was forced to open in a soft real estate market.
Bayley testified that in calculating the lease-up rate, he relied on Slosburg's experience with the Tuscany apartments in the Galleria area and on the Saxony in Dallas. Bayley also relied on discussions with David Palante (a member of the Appraisal Institute), John Chang (one of Slosburg's chief competitors in Houston), and a commercial real estate broker. He also considered the lease-up experience of the San Marin, the Plaza Del Oro, the Oaks at the Medical Center, the Gables, the Providence, the Kirby, and the Maroneal, apartments of the same class located in close proximity to the Lanesborough project.
There was also testimony that Slosburg had planned to open the Lanesborough at a time when there was an apartment shortage in the Medical Center area. By the time the Lanesborough actually opened, however, competing apartments had been built. Slosburg presented evidence that there was a decline in occupancy rates between the time the Lanesborough was originally scheduled to open and the date it actually did.
Law contends that Bayley's lease-up rate is based on speculative market conditions. Law relies on Southwest Battery for the proposition that profits which are largely speculative, such as from an activity dependent on uncertain or changing market conditions, or where there is no evidence from which they may reasonably intelligently estimated, cannot be recovered. Southwest Battery Corp. v. Owen, 115 S.W.2d 1097, 1098 (Tex. 1938). Law contends that because the Maroneal took between five and 18 months to reach stabilized occupancy levels, and because this evidence directly contradicts Bayley's opinion that the Lanesborough would have reached stabilization in two months, Bayley's calculations were based on speculative market conditions.
Bayley testified that the Maroneal took so long to stabilize because it did not open all at once, but instead opened in phases. Moreover, as outlined above, Bayley did not rely solely on the Maroneal to determine the lease-up rate. Because Bayley based his calculations on objective facts and figures, the lost profits were estimated with reasonable certainty. We conclude that this evidence is legally and factually sufficient to support the jury's award for lost profits.
Increased Cost of Concrete and Drywall
Law contends that the evidence is legally and factually insufficient to support the finding that Law's breach caused Slosburg to incur an increased cost of concrete and drywall. In his damage calculation, Bayley included the cost of additional concrete that Slosburg purchased and the additional time it was delayed, because it installed pier-and-beam foundations instead of post-tension slab foundations, as originally planned. Bayley also included the increase in the cost of concrete and drywall because Slosburg had to buy concrete and drywall at a higher price than it would have if the project had not been delayed.
Law points out that Slosburg decided to install pier-and-beam foundation when it became apparent that it could not excavate all of the remaining debris. Law argues that because this decision was based on the condition of the property when Slosburg purchased it, and not Law's breach, it should not be charged with the additional cost of concrete. However, Slosburg presented evidence that it decided to use pier-and-beam foundations because the cost of re-excavating and re-compacting the remaining property would have been greater than the cost of installing pier-and-beam foundations. Slosburg argues that this decision was consistent with its duty to mitigate its damages.
Law argues that there is no evidence that its breach was a cause-in-fact of the increased cost of concrete and drywall. Law makes two arguments to support its position. First, Law argues that it was not a substantial factor in the increase of concrete because Slosburg could not have began pouring concrete when it had planned. This argument is just a restatement of Law's challenge of the evidence supporting the delay calculation, which we have already overruled.
Second, Law argues that Slosburg was required to present evidence of the price of drywall during the delay period, October 22, 1997 to April of 1998, and that it failed to do so. Therefore, there was no evidence of the increased cost of drywall. Slosburg presented evidence of the price of drywall in June of 1998 compared to the price of drywall Slosburg actually paid. Slosburg argues that this is the appropriate figure because it would not have had to buy drywall at an inflated price but for Law's breach. We conclude that this evidence is legally and factually sufficient to support the jury's award for the increase in concrete and drywall costs.
We overrule appellant's third point of error.
Counterclaim
In its sole issue, Slosburg contends that the trial court erred in offsetting its recovery because the jury's finding that Law materially breached the contract precludes recovery by Law on its breach of contract counterclaim. The supreme court has held that "a fundamental principle of contract law is that when one party to a contract commits a material breach of that contract, the other party is discharged or excused from any obligation to perform." Hernandez v. Gulf Group Lloyds, 875 S.W.2d 691, 692 (Tex. 1994); Davis v. AllState Ins. Co., 945 S.W.2d 844, 845 (Tex.App.-Houston [1st Dist.] 1997, pet. withdrawn).
The jury found that Law materially breached the contract. Slosburg argues that, because the jury made this finding, it was excused from paying Law for the services it provided. However, the jury also found that Slosburg materially breached the contract. It did not find which party breached the contract first.
No element of excuse was submitted or requested to be included in the charge. Therefore, Slosburg waived this defense. DeLanney, 809 S.W.2d at 495.
Accordingly, we overrule Slosburg's sole issue.
Conclusion
We affirm the trial court's judgment.