Opinion
No. 04-04-00180-CV
Delivered and Filed: March 30, 2005.
Appeal from the 57th Judicial District Court, Bexar County, Texas, Trial Court No. 2000-CI-16664, Honorable Pat Boone, Judge Presiding.
Affirmed.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
OPINION
Appellant, TA Operating Corporation d/b/a TravelCenters of America (hereinafter "TA"), appeals from a take-nothing judgment in a jury trial. The appellee, Solar Applications Engineering, Inc. d/b/a "Wade Construction Company" (hereinafter "Solar") brought suit against TA for breach of contract on the theory of substantial performance. TA counterclaimed for breach of contract and requested a judgment against Solar for damages incurred for Solar's failure to complete the project timely, the cost of repairing defective work, and liens filed against the project. The trial court entered judgment for Solar in the amount of $392,000, the amount of consideration remaining on the contract less the cost of remediable defects in the work, and severed TA's counterclaim for damages relating to liens filed against the project by subcontractors. TA raises seven issues on appeal, requesting that Solar take nothing and that TA be awarded damages and attorney's fees. We affirm the trial court's judgment.
The severance order provides that any sums recovered by Solar in the main action, other than attorney's fees, will be held in trust for the benefit of the subcontractors' claims.
Factual and Procedural Background
TA Operating Corporation, a truck stop travel center company, contracted with Solar Applications Engineering, Inc. to construct a prototype multi-use truck stop in San Antonio for a fixed price of $3,543,233. Solar agreed to begin construction within fourteen days after signing the contract and complete the project within 270 days, in February 2000. Various delays occurred, however, stemming in large part from confusion over the construction plans. Solar had been given an older set of construction plans from September 1998, on which it based its bid and estimated the project completion. TA, however, expected the project to be built from a set of plans that were dated May 1999. The discrepancy was not discovered until June 1999, and created numerous problems because the two sets of plans were substantially different. Numerous change orders were issued during the construction process, and the two sets of plans were reconciled in a comprehensive change order that was issued in February 2000. The February 2000 change order reconciling the plans was an attempt to "place the parties on the same page."
Through a series of approved change orders, TA extended project completion until May 26, 2000, and received a letter from Tracey Sutton, Solar's on-site manager, that the project would be substantially complete by May 30, 2000. Both parties agree that the project was not substantially complete until August 11, 2000, the day TA was issued a temporary certificate of occupancy by the City of San Antonio, certifying that the building had passed all major city inspections and was ready for use.
Upon substantial completion, TA sent Solar a "punch list" of twenty-eight items that needed to be finished to complete the building. In late August, TA e-mailed Solar a punch list that contained additional (over three hundred items) to be completed. Solar disputed several items on the list and delivered a response to TA listing the items Solar would correct, and listed the subcontractor responsible for each item. Solar began work on the punch list items and filed a lien affidavit against the project on October 2, 2000 in the amount of $472,392.77. Solar stated that it filed the lien affidavit as a precautionary measure because the time for payment of a portion of the retainage had passed, without any payment from TA. TA understood the lien affidavit to be a request for final payment.
The contract provided that TA would withhold 10% retainage during the construction process and for 30 days after the work was completed. Retainage is utilized to protect the owner from unpaid claims of subcontractors and suppliers on the job.
On October 18, 2000, TA sent notice to Solar that Solar was in default for not completing the punch list items, and for failing to secure legally effective releases or waivers of the liens subcontractors had begun filing against the project. TA stated in the letter that Solar was not entitled to final payment until it complied with the remaining requirements under the contract. TA ultimately sent Solar a letter of termination citing Solar's failure to complete the punch list items as grounds for termination, which Solar accepted on November 13, 2000. In its reply letter, Solar accepted the letter of termination, but disputed that the termination was for cause. Solar acknowledged at least two items on the punch list had not been completed, and submitted a final application for payment in the amount of $472,148.77, the unpaid retainage. TA refused to make final payment, arguing that there were outstanding requirements on the contract. Solar sued TA under the theory of substantial performance, and TA counterclaimed for damages arising from delay, the cost of repairing defective work, and mechanic's liens filed against the project. The trial judge severed the portion of TA's counterclaim related to mechanic's liens into a separate civil cause of action, entered a judgment for Solar after the jury returned findings favorable to Solar, and also awarded Solar conditional appellate attorney's fees.
At the time of trial, the amount of unpaid retainage claimed by Solar was $396,942.00.
Final Payment
In its first issue, TA contends that the trial court erred in rendering judgment for Solar because Solar forfeited its right to recover under the doctrine of substantial performance by not pleading or proving compliance with the contractual requirement of submitting legally effective releases or waivers of liens.
It has long been held that a party to a contract who is in default may not maintain a suit for its breach. Dobbins v. Redden, 785 S.W.2d 377 (Tex. 1990); Gulf Pipe Line Co. v. Nearen, 135 Tex. 50, 138 S.W.2d 1065 (1940). This strict rule has been modified for building or construction contracts, however, by the rule of substantial performance. Dobbins, 785 S.W.2d at 378; Vance v. My Apartment Steak House of San Antonio, Inc., 677 S.W.2d 480, 481 (Tex. 1984); Atkinson v. Jackson Bros., 270 S.W. 848, 850 (Tex. Comm'n App. 1925, holding approved). "Substantial performance" was defined by the Texas Commission of Appeals in Atkinson:
To constitute substantial compliance the contractor must have in good faith intended to comply with the contract, and shall have substantially done so in the sense that the defects are not pervasive, do not constitute a deviation from the general plan contemplated for the work, and are not so essential that the object of the parties in making the contract and its purpose cannot without difficulty, be accomplished by remedying them. Such performance permits only such omissions or deviation from the contract as are inadvertent and unintentional, are not due to bad faith, do not impair the structure as a whole, and are remediable without doing material damage to other parts of the building in tearing down and restructuring.
Atkinson, 270 S.W. at 251. The rule of substantial performance is an equitable doctrine adopted to allow a contractor who has substantially completed a construction contract to sue on the contract rather than being relegated to a cause of action for quantum meruit. Vance, 677 S.W.2d at 482. The doctrine of substantial performance recognizes that the contractor has not completed construction, and therefore is in breach of the contract. Id. at 482. By its very terms, substantial performance always means something less than full and exact performance of the contract. 8 Corbin on Contracts § 36.3 (2003). Under the doctrine, however, the owner cannot use the contractor's failure to complete the work as an excuse for non-payment. Atkinson, 270 S.W. at 850.
In this case, TA does not dispute that Solar substantially performed the agreement, or that TA was able to use the building for its intended purpose after August 11, 2000. Although Texas case law makes it clear that a contractor who proves substantial performance is entitled to the full contract price less the cost of any remediable defects, TA argues that Solar forfeited its right to recover because it did not submit legally effective releases or waivers of liens with its application for final payment, which was required by the contract. TA cites Beard Family Partnership v. Commercial Indemnity Insurance Company for its argument that Texas law forbids recovery under the doctrine of substantial performance when not all conditions to final payment have been met. 116 S.W.3d 839 (Tex.App.-Austin 2003, no pet.) The Beard majority declined to address the issue, however. TA does not cite, nor do we find, any controlling authority for this argument.
We note that due to their harshness in operation, conditions have long been disfavored in Texas. Criswell v. European Crossroads Shopping Ctr, Ltd., 792 S.W.2d 945, 948 (Tex. 1990). Solar argues that imposing a forfeiture in this case would negate the purpose of the doctrine of substantial performance, i.e., to protect the right to compensation of those who have performed in "all material and substantive particulars" so that the right to compensation is not forfeited by omissions or defects which do not deprive the owner of the essential benefit for which it contracted. Even assuming the contract provision at issue is a condition precedent to TA's contractual obligation to pay Solar for the work it performed, Solar is entitled to the compensation that it was awarded by the trial court because equity will not permit the enforcement of a forfeiture in an inequitable and oppressive manner. See Dewhurst v. Gulf Marine Inst. of Tech., 55 S.W.3d 91, 98 (Tex.App.-Corpus Christi 2000, pet. denied).
In its August 18, 2000 letter to Solar certifying substantial completion of the project, TA stated that Solar was not entitled to release of the retainage until all obligations under the contract had been completed. The retainage, which is withheld for the purpose of paying off subcontractors, was never released and constituted Solar's claim at trial. To hold that Solar forfeited its right to recover the value of its work under the doctrine of substantial performance because it did not comply with the contract condition of securing legally effective releases or waivers of the subcontractor's liens, a substantial amount of which would have been paid with the retainage, would be inequitable and oppressive. See id. Therefore, we overrule TA's first issue.
Submission of Jury Instruction Regarding Waiver
In its third issue, TA contends that the trial court erred in submitting a jury question regarding whether Solar's failure to complete the work timely was excused by waiver. The trial court submitted the following question to the jury:
Was Wade's [a/k/a Solar] failure to complete the Work under the Contract Documents within the time specified by the Contract Documents excused by waiver. Waiver is an intentional surrender of a known right or intentional conduct inconsistent with claiming the right. Answer "Yes or "No."
Rule 278 of the Rules of Civil Procedure requires the submission of jury questions that are supported by the pleadings and the evidence. Tex. R. Civ. P. 278. The standard for review of a jury charge is an abuse of discretion. Texas Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990). In reviewing a complaint that there was no evidence to support the submission of a question to the jury, an appellate court must look at only the evidence which tends to support the judgment in order to determine if the trial court abused its discretion in submitting the issue. McFarland v. Sanders, 932 S.W.2d 640, 644 (Tex.App.-Tyler 1996, no writ). We indulge all inferences in favor of the submission. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the existence is no more than a scintilla, and is in legal effect, no evidence. Id.
The original contract documents called for a completion date of February 22, 2000. At trial, there was testimony and evidence that Solar was given a set of construction plans dated September 1998 on which it based its bid and estimated project completion. According to the contract documents, Solar was obligated to perform according to the September 1998 plans. TA, however, expected the project to be built according to a set of plans dated May 1999. There was evidence that Solar was in possession of the May 1999 plans in June of that year. Solar testified that the existence of two sets of plans caused considerable delay of the project because the plans were extensively different. Robert Rohmer, the operations manager for Solar, testified that one major problem was the delay in getting the concrete foundation for the building poured for construction to begin. Because the two sets of plans provided for different dimensions on the plumbing, sanitary, and electrical conduits, the concrete could not be poured until the plans were reconciled. Instead of being poured in June, the concrete foundation was not ready until October.
Between the beginning of construction up until February of 2000, fifty-five change orders were issued to guide Solar as to various aspects of construction. TA acknowledged at trial that until the plans were reconciled in a comprehensive change order in February 2000, Solar was contractually obligated to perform under the September 1998 plans. After the comprehensive change order was issued and the May 1999 plans were incorporated into the project, project completion was extended to May 26, 2000 through a series of mutually agreed-upon change orders. An extra eighty-four days were in dispute, however, due to Solar requesting extra days on change orders for delays it believed were outside its control. TA employees testified that TA did not grant extensions for the requested eighty-four days because it believed the construction requests in the disputed change orders did not affect the critical path of the project, and did not merit extra time. George Strickland, the director of engineering and construction for TA, acknowledged that the contract did not penalize Solar for delays outside its control. Strickland testified that TA was facing financial difficulties in March 2000, and that he went out to the construction site and ordered TA employees not to spend any money outside its budget. The jury heard testimony that Solar's delay requests were being made after Strickland had advised everyone in the field no more money would be spent outside the budget on the project, a time when TA was having to decide whether Solar's delay requests were for delays outside its control. Throughout trial, Solar argued the delays were due to conditions outside its control.
There was evidence at trial that one hundred and eighteen change orders were issued over the course of the project, TA often took longer than the industry-standard time to approve change orders, TA failed to promptly respond to requests for information, TA interfered with Solar's subcontractors and requested work not covered by the contract documents, TA requested completion of punch list items Solar was not responsible for, and TA failed to provide accurate drawings. The evidence of the two sets of construction plans, which took nine months to reconcile into a comprehensive plan, along with the other evidence recited, raised a fact issue for the jury to decide whether TA was responsible for much of the construction delay, and therefore excused Solar's failure to complete the project timely. There was more than a scintilla of evidence to support the jury's finding. Kindred, 650 S.W.2d at 63. Because the issue of waiver was raised by the evidence, it was not error for the trial court to submit question number six to the jury. Thus, we overrule TA's no-evidence attack on the jury's finding to question six. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983).
Alternatively, TA contends the evidence is insufficient to support the conclusion that Solar's failure to complete the work within the specified time in the contract was excused by waiver, and that the court should therefore have disregarded the jury's answer to the question. When reviewing a challenge to the factual sufficiency of the evidence, we must consider all the evidence in the record. See Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). If a party is attacking the factual sufficiency of an adverse finding when the other party has the burden of proof, that party must demonstrate there is insufficient evidence to support the adverse finding. Aquila Southwest Pipeline, Inc. v. Harmony, 48 S.W.3d 225, 236 (Tex.App.-San Antonio 2001, pet. denied). When reviewing the factual sufficiency of the evidence, we consider and weigh all of the evidence. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We set aside the verdict only if the evidence is so weak as to make the verdict clearly wrong and manifestly unjust. When the parties introduce conflicting testimony in a jury trial, the jury has the exclusive responsibility to determine the credibility of witnesses and the weight to be given their testimony. Novosad v. Mid-Century Ins. Co., 881 S.W.2d 546, 548 (Tex.App.-San Antonio 1994, no writ). As an appellate court, we must give deference to the jury's resolution of conflicts in the evidence. See Carr v. Jaffe Aircraft Corp., 884 S.W.2d 797, 802-03 (Tex.App.-San Antonio 1994, no writ).
Throughout the trial, each side blamed the other for construction delays, and both put on evidence and testimony to support their position. TA argued that Solar's failure to supervise and coordinate the project properly created delay, and Solar argued the delays occurred due to conditions outside its control. The jury, as the trier of fact, was authorized to resolve conflicts within the testimony of witnesses and evidence, and we will not substitute our judgment for that of the jury. The evidence supporting TA's waiver is not so weak as to be clearly wrong and manifestly unjust. Cain, 709 S.W.2d at 176. TA's third issue is overruled. Because we uphold the jury's finding of waiver, we also overrule that portion of TA's fourth issue requesting an offset for delay damages.
Measure of Damages
In its second issue, TA argues the trial court erred in applying a common law measure of damages rather than the parties' contractually agreed upon measure of damages in entering judgment. Alternatively, TA asserts in its fourth issue that if it was proper for the trial court to award common law damages, it was error for the trial court not to offset and credit TA for attorney's fees and mechanic's liens against Solar's recovery of common law damages. Whether the trial court applied the improper measure of damages is a question of law subject to a de novo review. Elias v. Mr. Yamaha, Inc., 33 S.W.3d 54, 60 (Tex.App.-El Paso 2000, no pet.).
Ordinarily, a finding of substantial performance of the contract results in the measure of damages being the cost of remedy or repair. Vance, 677 S.W.2d at 481. TA relies on Tucker v. Northcutt for the argument that the trial court was required to apply the parties' contractually agreed upon measure of damages. 248 S.W.2d 750 (Tex.Civ.App.-Waco 1952, writ ref'd). We believe Tucker is distinguishable, however because Tucker, and the line of cases that have followed it, have held that where there has not been substantial performance of a building contract, the proper measure of damages is the measure of damages contractually agreed upon by the parties. Id. at 752; see also Fidelity and Deposit Co. v. Stool, 607 S.W.2d 17, 20-21 (Tex.Civ.App.-Tyler, 1980, no writ) (quoting Tucker, 248 S.W.2d at 751) ("[T]he correct measure of damages resulting from the breach of a building contract is ordinarily the reasonable cost of defects . . . provided such contract has been `substantially performed'"); J.C. Volkman v. Eakman, 496 S.W.2d 752, 758 (Tex.Civ.App.-Fort Worth 1973, writ ref'd n.r.e.) (holding that the proper measure of damages to repair defects for a building contract that has not been substantially performed is the contractually agreed upon measure of damages). TA does not dispute there was substantial performance of the contract. Therefore, it was proper for the trial court to apply a common law measure of damages. Vance, 677 S.W.2d at 481. TA's second issue is overruled.
Alternatively, TA contends the trial court should have offset mechanic's liens and TA's attorney fees against Solar's recovery of common law damages. First, we note that TA's counterclaim with respect to the existence of mechanic's liens against the project was severed by the trial court into a separate civil cause of action. The effect of a severance is to divide a lawsuit into two or more independent suits that will be adjudicated by distinct and separate judgments. In re E.I. duPont Nemours Co., 92 S.W.3d 517, 523 (Tex. 2002) ("A severed action becomes a different action"). Because the issue of liens was not an issue to be resolved in the trial court, it is not an issue before us on appeal. See Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex. 1985) (Texas appellate courts only have jurisdiction over final judgments). We overrule this portion of TA's argument.
TA also contends that it was error for the trial court to deny its recovery of attorney's fees, arguing that it prevailed on its breach of contract claim. In McKinley v. Drozd, the Texas Supreme Court held that a party does not need a net recovery to be awarded attorney's fees; all that is required is that the party prevail on a just claim. 685 S.W.2d 7, 11 (Tex. 1985). The court approved the award of attorney's fees to parties that prevail on their claim, even in situations where the amount of damages awarded to a party is entirely offset by an amount awarded to an opposing party. Id. at 9-10. McKinley is specifically limited to successful prosecution of claims under the Deceptive Trade Practices Act or to attorney's fees pursuant to article 2226 of the Revised Civil Statutes, which has been codified in Chapter 38 of the Civil Practices and Remedies Code. Id. at 9, 11.
See Tex. Bus. Com. Code Ann. § 17.50(d) (Vernon 2002); Tex. Civ. Prac. Rem. Code Ann. § 38.001, et. seq. (Vernon 1997) (allowing the recovery of attorney's fees in causes of action involving breach of contract).
TA argues that the $8,000 offset for remediable defects makes it a prevailing party on its counterclaim, and that it is therefore entitled to its attorney's fees. However, the $8,000 offset was something Solar was required to prove under its substantial performance cause of action, rather than a successful recovery proven by TA. See Uhlir v. Golden Triangle Dev. Corp., 763 S.W.2d 512, 517 (Tex.App.-Fort Worth 1988, writ denied) ( citing Vance, 677 S.W.2d at 482-83) (offset under substantial performance theory is not considered a successful counterclaim for the counter-plaintiff). Further, the trial court's judgment specifically denied TA recovery on its counterclaim. To recover under § 38.001, TA had to prevail on its counterclaim, and recover damages. See McKinley, 685 S.W.2d at 9-11; Tex. Civ. Prac. Rem. Code Ann. § 38.001 (Vernon 1997). A party who is not awarded damages cannot recover attorney's fees. Id. Because TA was not awarded damages under its counterclaim for breach of contract, TA was not entitled to recover attorney's fees. Therefore, the court did not err in refusing to award TA attorney's fees. TA's fourth issue is overruled.
Pre-Judgment Interest
In its fifth issue, TA contends that the trial court erred in awarding Solar pre-judgment interest under the Prompt Payment Act. Tex. Prop. Code Ann. § 28.001, et seq. (Vernon 1999). We review an award of prejudgment interest under an abuse of discretion standard, giving limited deference to the trial court's application of the law to the facts. J.C. Penney Life. Ins. Co. v. Heinrich, 32 S.W.3d 280 (Tex.App.-San Antonio 2000, pet. denied). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). Further, a trial court's clear failure to apply the law correctly constitutes an abuse of discretion. NCNB Texas Nat'l Bank v. Coker, 765 S.W.2d 398, 400 (Tex. 1989).
The 1999 version of the statute was in effect at the time the parties entered into the contract. We cite the provisions in effect at the time of trial.
There are two legal sources of an award of prejudgment interest: 1) general principles of equity; and 2) an enabling statute. Johnson Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 528 (Tex. 1998). TA contends the trial court abused its discretion in awarding prejudgment interest under the Prompt Payment Act because there was no evidence of the essential elements for recovery under the Act. The Prompt Payment Act provides, in pertinent part:
If an owner receives a written payment request from a contractor for an amount that is allowed to the contractor for properly performed work or suitably stored materials, the owner shall pay the amount to the contractor, less any statutory offsets, not later than the 45th day after the owner receives the request.
Tex. Prop. Code Ann. § 28.002(a). The trial court heard evidence that TA received a written request for payment from Solar on November 13, 2000, for the contract balance of work substantially performed by Solar. Based on the evidence presented at trial, we do not find the trial court abused its discretion in awarding prejudgment interest under the Prompt Payment Act.
TA argues that even if the evidence does support the application of the Prompt Payment Act, the good faith exception applies, excusing its withholding of the entire amount of payment. Section 28.003 of the Act provides:
If a good faith dispute exists concerning the amount owed for a payment requested or required by this chapter, the owner, contractor, or subcontractor disputing its obligation to pay or the amount of payment may withhold from the payment owed not more than 110 percent of the difference between the amount the obligee claims is due and the amount the obligor claims is due. A good faith dispute includes a dispute regarding whether the work was performed in a proper manner.
Id. § 28.003. In its pleadings and at trial, TA disputed that it had any obligation to pay Solar on account of Solar's failure to comply with the conditions for final payment. We have already overruled this argument, however. TA argues that the jury's finding of an $8,000 offset for remediable defects conclusively establishes that there was a good faith dispute regarding the amount owed for properly performed work. TA also alleges generally that it disputed whether the work was properly performed, but contests the entire amount claimed. Given that the jury found $400,000 was owed in consideration on the contract, and only $8,000 was found as an offset for remediable defects, TA's argument that it could withhold payment of the entire amount owed (i.e. that the entire $400,000 worth of work was improperly performed) was not in good faith, and does not fall within the exception. TA's fifth issue is overruled.
Attorney's Fees
In its sixth issue, TA contends that the trial court erred in awarding Solar conditional appellate attorney's fees because Solar did not provide evidence to the court of the reasonableness of its requested attorney's fees. Solar requested conditional appellate attorney's fees pursuant to Chapter 38 of the Texas Civil Practices and Remedies Code. Tex. Civ. Prac. Rem Code Ann. § 38.001, et seq. Under Chapter 38, a court may take judicial notice of the usual and customary attorney's fees and of the contents of the file without receiving evidence on the matter. Id. § 38.004(1). In the absence of contrary evidence, it is presumed that a trial court's award of the usual and customary attorney's fees is reasonable. Id. § 38.003. The parties stipulated that $50,000 was a reasonable and necessary award of conditional appellate attorney's fees for TA on appeal, and the trial judge could reasonably infer that $50,000 was a reasonable and necessary award of conditional appellate attorney's fees for Solar. TA's argument that Solar was required to put on evidence of the reasonableness of its requested appellate attorney's fees is therefore overruled.
Requested Jury Question
In its seventh issue, TA contends that the trial court erred in refusing to submit its requested question regarding whether Solar committed fraud when it represented to TA that it could substantially complete the project by May 30, 2000. Rule 278 of the Texas Rules of Civil Procedure requires the submission of questions that are raised by written pleadings and the evidence. Tex. R. Civ. P. 278. We review a trial court's decision to exclude a jury question under an abuse of discretion standard. Texas Dep't of Human Servs., 802 S.W.2d at 649. When evaluating whether a party is entitled to a jury question, we examine the record for evidence supporting the submission of the question, and ignore evidence to the contrary. Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992); Roy v. Howard-Glendale Funeral Home, 820 S.W.2d 844, 846 (Tex.App.-Houston [1st Dist.] 1991, writ denied) (the "trial court is obligated to submit the question if the evidence amounts to a more than a scintilla"). Refusal by a judge to submit a question is correct if no evidence exists to warrant the submission of the question. Id.
To prove a fraud cause of action, it must be established that: 1) a material misrepresentation was made; 2) that was known to be false when made or was asserted without knowledge of its truth; 3) that was intended to be acted upon; 4) that was relied upon; and 5) caused injury to the party who relied on the misrepresentation. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). TA points to the testimony of Howard Wiatrek and Robert Rohmer, employees of Solar, as evidence supporting fraud. Wiatrek testified that employees of Solar realized at one point in May that the project could not be finished in May, and that in his opinion, the project could not be completed by May 24, 2000. Rohmer testified that he realized at one point in May that the project would not be finished at the end of May. Tracey Sutton also testified that at the beginning of May, Solar believed it could substantially complete the project by the 30th, but due to several requests for information and change orders submitted in mid-May, he realized substantial completion would not be achieved.
To support a jury question on fraud, the record must contain evidence that Solar made the representation with the intent to deceive TA and with no intention of performing as presented. See Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986) (requiring evidence of fraudulent intent on the part of the promisor when the promise is to perform a future act). Reviewing the record, we do not find evidence that Solar intended to deceive TA and that it did not intend to substantially complete the building by the specified time in the contract documents. We do not find evidence that Solar committed a material misrepresentation. Because the issue of fraud was not raised by the evidence, the trial court did not abuse its discretion in refusing TA's requested jury question. TA's seventh issue is overruled. The judgment of the trial court is affirmed.