“Road construction is ubiquitous in our society. . . .” C&C Road Construction, Inc. v. Saab Site Contractors, LP, 574 S.W.3d 576 (March 29, 2019). The Court of Appeals of El Paso, Texas could not be more right on this point. And where there are crossroads, perspectives will differ. (As an aside, it is not a typo that the appeal of this case was decided 10 years after the prime contract was formed.)
In 2009, the Texas Department of Transportation (TxDOT) engaged a general contractor (GC) to add passing lanes to a four-mile stretch of U.S. Route 67 and to resurface seventeen miles of U.S. Route 385. Both project sites were in rural Pecos County, which is about 100 miles from Big Bend National Park and about 200 miles from the highest point in Texas – Guadalupe Peak in Guadalupe National Park.
The GC engaged a subcontractor under two separate unit price subcontracts to prepare the roadbed by widening, adding shoulders and providing traffic controls. Upon verification of actual quantities installed, TxDOT paid the GC who, in turn, paid the sub for most of the work.
During the project, TxDOT added work by requiring extra base material to remove a drop off at the roadway edge. TxDOT approved payment for only a portion of the extra work. Witnesses for the GC testified that the sub actually performed the extra work as part of its base scope.
Separately, TxDOT paid the GC for several change orders for work performed by the sub. However, the GC never advised the sub of TxDOT’s payments for such work. Neither did the GC advise the sub that the GC had submitted change orders to TxDOT for such work.
Ultimately, TxDOT assessed liquidated damages against the GC for 92 days of delay and the GC withheld final payment from the sub.
As is typical, fingers pointed at each other. TxDOT required the roadway to remain open, which meant the base applied by the sub could not cure the necessary three days before traffic resumed using the road. Neither did the GC apply the emulsion layer before traffic resumed using the road.
The GC argued that the sub failed to properly compact the base course and that the GC had to supplement the sub’s workforces. The sub argued that the equipment the GC supplied was often not working properly or not working at all.
A jury found the GC breached the subcontractors when it failed to pay the sub (presumably, because the sub did not delay the project). Nevertheless, the jury only awarded half of the claimed damages to the sub and only a portion of its attorney’s fees. The appellate court agreed with the jury on all points except it increased the attorney’s fees award on appeal.
It is not shocking that the appellate court refused to change the jury’s decision on the sub’s principal damages. In this case, damages were a factual determination that a jury of non-legal, lay persons could decide if there was at least a scintilla of evidence, which is the least amount of evidence that “would enable reasonable and fair-minded people to differ in their conclusions.” The threshold is low, but reasonable.
The appellate court could only change the jury’s decision if the minimal threshold was not met or “if the evidence conclusively establishes” otherwise. Here, the appellate court considered, among other facts, that the sub’s amendment of its damages more than once may have impacted its credibility in the eyes of the jury. An appellate court cannot reexamine credibility. As such, there was at least enough evidence that an award of half the damages sought was not “clearly” wrong.
On the other hand, the appellate court determined that the jury’s denial of attorney’s fees was wrong because there was uncontroverted evidence. In other words, it was “clearly” wrong for the jury to ignore the evidence that supported only one conclusion – that attorney’s fees should be awarded.
Juries are human so their perspectives will differ, but good courts strive to get it right. RB
