                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-14-00019-CV


             J.R.'S LANDSCAPING & SPRINKLER SYSTEMS, INC., APPELLANT

                                                   V.

                               CITY OF CROSBYTON, APPELLEE

                             On Appeal from the 72nd District Court
                                     Crosby County, Texas
             Trial Court No. 2010-7347, Honorable Ruben Gonzales Reyes, Presiding

                                        September 21, 2015

                                 MEMORANDUM OPINION
                      Before CAMPBELL and HANCOCK and PIRTLE, JJ.


        Appellant J.R.’s Landscaping & Sprinkler Systems, Inc. brought suit against the

City of Crosbyton, Texas, alleging breach of its construction contract with the City. The

City brought a counterclaim, asserting J.R.’s had failed to perform the contract as

required.1    Each sought damages. After a bench trial, the court awarded the City its

damages for the cost of completion of the project.



        1
         The elements of a breach of contract claim are: (1) the existence of a valid contract; (2)
performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4)
        On appeal, J.R.’s brings two issues, one contending the court erred by rejecting

its claim for damages, the second contending it erred by entering judgment for the City.

After we abated the appeal, the court signed findings of fact and conclusions of law. 2

We will affirm.


                                             Background


        The contract called for J.R.’s to furnish materials and labor for the construction of

new concrete sidewalks, curbs and gutters, access ramps, handrails and related work at

locations in downtown Crosbyton. The final contract amount was $142,632.80. During

construction J.R.’s requested, and was paid, $64,307.


        Chester Carthel of Carthel’s Engineering served as engineer and owner’s

representative. At a point, a difference of opinion arose between Carthel and the City

regarding J.R.’s completion of the work. Carthel received J.R.’s notice that work was

substantially complete, inspected the work, concluded the project was substantially

complete and complied with the contract, and approved J.R.’s application for payment

of the remaining contract amount. At trial, Carthel agreed it was his opinion that the

work was substantially complete and that the application should have been paid.


        The City was dissatisfied with the work. The mayor testified he told J.R.’s on

several occasions that he was not satisfied with the appearance of the sidewalks and

complained about defects such as pitting. J.R.’s attempted repairs to several areas by

____________________
damages sustained by the plaintiff as a result of the breach. Wright v. Christian & Smith, 950 S.W.2d 411,
412 (Tex. App.—Houston [1st Dist.] 1997, no writ).
        2
        See J.R.’s Landscaping & Sprinkler Sys. v. City of Crosbyton, No. 07-14-00019-CV, 2014 Tex.
App. LEXIS 12666 (Tex. App.—Amarillo, November 21, 2014, no pet.) (mem. op.).


                                                    2
patching the concrete, but the mayor testified the patching was not successful. He said

J.R.’s was “going to get us a proposed way of taking care of the problem. And then we,

the council, would approve.” He testified he never received a proposed plan of action

from J.R.’s, who merely attempted more patches. The City never formally accepted the

work.


        The City hired another engineer, Michael Adams, who testified he found several

issues with the concrete, including exposed aggregate rock, spalling, sloping and

rusting of exposed rebar. He expressed the opinion the workmanship was “at a low

level,” and recommended that the areas of concrete containing the defects be torn out

and replaced, at an estimated cost of $160,000.


        When the City did not pay its final payment application, J.R.’s filed suit. On the

City’s counterclaim, the court awarded it damages of $160,000, interest and attorney’s

fees.


                                         Analysis


        All the trial court’s findings of fact and conclusions of law favor the City. In

support of its first issue, J.R.’s contends the evidence established as a matter of law

that the City breached the contract by failing to pay J.R.’s final invoice. See Dow Chem.

Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam); Barnett v. Coppell N. Tex.

Court, Ltd., 123 S.W.3d 804 (Tex. App.—Dallas 2003, pet. denied) (standard of review).

To reach that conclusion, J.R.’s argues that the contract unambiguously provided that

acceptance of the project by the owner’s representative was conclusive and binding on

the City. To sustain its contention, we would be required to agree that J.R.’s reading of


                                             3
the contract is the only reasonable reading. See, e.g., Columbia Gas Trans. Corp. v.

New Ulm Gas, 940 S.W.2d 587, 589 (Tex. 1996); Universal C.I.T. Credit Corp. v.

Daniel, 150 Tex. 513, 517, 243 S.W.2d 154, 157 (Tex. 1951) (ambiguity of contracts).


        J.R.’s relies on a section of the contract with the title, “Contract Closeout.”3 Its

subsections include those entitled “substantial completion,” “final inspection,” and “final

payment.” It contains a statement reading, “The Owner's Representative will determine

if the project is Substantially Complete.” It also contains the provision that, within 14

days of notice from the contractor that he believes the work is substantially complete,

the Owner’s Representative will inspect the job and determine if he agrees. The “final

inspection” subsection contains a similar requirement for a response from the Owner’s

Representative to the notice from the contractor.


        But the provisions on which J.R.’s relies are not the only contract terms

addressing the subject of payments on completion of the work. The contract’s General

Contract Conditions contain a section entitled “Payments to Contractor,” with

subsections entitled “partial payments,” and “final payment.” As the City points out,

language there appears stating that the contractor’s “requisition for final payment,” will

be prepared “[a]fter final inspection and acceptance by the Owner of all work under the

Contract.” Another provision, contained in the “payment procedures” subsection of a

section entitled “Administrative Requirements,” states that the “Owner’s Representative
        3
           In addition to several pages of General Contract Conditions, the contract document includes
several pages of specifications and other provisions, some of which address topics also addressed in the
General Contract Conditions. The General Contract Conditions and these latter provisions appear taken
from different contract forms. The language of the General Contract Conditions and these latter
provisions of the contract is not consistent, and each contained phrases not used in the other. For
example, the General Contract Conditions refer to Carthel as “Engineer,” while the latter contract pages
refer to the individual filling his role as the “Owner’s Representative,” a phrase not appearing in the
General Contract Conditions. The capitalized, but undefined, phrase “Substantially Complete” appears in
the latter provisions but not in the General Contract Conditions.

                                                   4
will review pay request [sic] and recommend action to the Owner within 14 calendar

days of submission.”4


        J.R.’s cites Texas cases describing contract provisions it contends are like those

in its contract with the City. See State v. Martin Bros., 160 S.W.2d 58, 60-61 (Tex.

1942) (contract stated engineer’s decisions would be “final”); City of San Antonio v.

McKenzie Constr. Co., 150 S.W.2d 989, 998 (Tex. 1941) (certificate of final acceptance

to be issued by engineer); Tribble & Stephens Co. v. RGM Constructor, L.P., 154

S.W.3d 639, 652 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (plurality op.)

(contractor’s work subject to “final approval” of project architect). The clear and

consistent contract provisions described in those cases are unlike the uncertain and

conflicting language that confronted the court here. We do not agree the contract here

unambiguously provides that Carthel’s decision regarding completion of the work would

be final and binding on the City. 5 J.R.’s contention effectively ignores the contract

language indicating it was up to the City to grant final acceptance.


        We overrule J.R.’s first issue.


        In its second issue, J.R.’s argues the trial court erred by entering judgment in

favor of the City. The court found that the concrete’s exposed aggregate and spalling

        4
           Other provisions of the General Contract Conditions emphasize the role of the Owner, here the
City, with respect to acceptance of the work. An inspection provision states, “The Owner shall have the
right to reject defective material and workmanship or require its correction. Unacceptable workmanship
shall be satisfactorily corrected.” Another general contract condition states that “all instructions and
approval with respect to the work will be given to the Contractor only by the Owner through its authorized
representatives or agents.” Note that provision refers to the Owner, not the Engineer.
        5
           As stated in the trial court’s findings of fact, Joe Ramirez, the owner of J.R.’s, “agreed at trial
that the city could ‘decide whether or not to accept or reject’ the work.” And, although Carthel was hired to
be the engineer on the project, “under the terms of the Agreement, the City had the ultimate right to
decide to accept or reject the work and was free to disagree with Carthel’s opinions.”


                                                      5
issues were a result of poor workmanship by J.R.’s, and found the workmanship was

not in compliance with the contract. It concluded J.R.’s breached the contract by failing

to construct or complete the project in accordance with its terms. J.R.’s cites Mustang

Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195 (Tex. 2004), and acknowledges its

holding that one contracting party’s performance may be excused if the other materially

breaches the contract. Id. at 196. J.R.’s asserts, however, there is no evidence it had

committed a material breach when the City failed to make payment. The assertion is

founded on Carthel’s agreement the work was substantially complete. J.R.’s argument

ultimately relies, then, on the same contention that underlies its first issue, the assertion

the contract made Carthel’s decision final and binding on the City. Having rejected

J.R.’s contention that, as a matter of law, the contract made Carthel’s determination

final, we cannot agree the trial court was required to disregard the evidence of poor

workmanship and defective concrete work cited in the court’s findings. 6 We overrule

J.R.’s no-evidence issue. See Catalina v. Blasdel, 881 S.W.2d 295, 296-97 (Tex. 1994)

(standard of review for no-evidence issue on appeal).




        6
          J.R.’s does not directly challenge any of the trial court’s findings of fact. Its findings include the
facts that an inspection after J.R.’s substantial completion notice showed large areas of concrete
containing “exposed aggregate and spalling” as well as “substantial cracking of the concrete in those
areas.” The finding continues, “[e]xposed aggregate and spalling are defects in concrete that are a
delamination of the top layer of concrete. This exposes the inner layers of the concrete to weather
elements. A concern is with a freeze-thaw issue, where water can penetrate into the concrete through
the exposed aggregate or spalling areas, and when that water freezes, it will expand and damage the
concrete. Exposed aggregate and spalling shorten the life of the concrete.” Further, “[t]he concrete was
not smooth, and it was not aesthetically pleasing,” an “important aspect of the project” to “improve the
look of the downtown area.”

                                                       6
                                      Conclusion


        Having resolved each of J.R.’s issues against it, we affirm the judgment of the

trial court.


                                               James T. Campbell
                                                   Justice




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