Motion for En Banc Reconsideration Denied as Moot, Affirmed, and Substitute
Opinion filed July 10, 2012.




                                         In The

                       Fourteenth Court of Appeals

                                 NO. 14-11-00004-CV


                      CAJUN CONSTRUCTORS, INC., Appellant

                                           V.

                      VELASCO DRAINAGE DISTRICT, Appellee


                        On Appeal from the 412th District Court
                               Brazoria County, Texas
                             Trial Court Cause No. 61420


                      SUBSTITUTE OPINION

       We deny Velasco Drainage District’s motion for en banc reconsideration as moot,
withdraw our majority and dissenting opinions of May 1, 2012, and issue the following
substitute opinion.

       In this contract dispute, appellant Cajun Constructors, Inc. (“Cajun”) appeals from
the trial court’s summary judgment in favor of appellee Velasco Drainage District
(“Velasco”) and a jury’s subsequent award of attorney’s fees to Velasco. Cajun asserts
that the trial court erred in granting summary judgment to Velasco because (1) Cajun
complied with the notice requirements in the contract at issue or raised a fact issue with
regard to the notice issue, (2) the notice provisions in the contract are legally void, and
(3) Cajun’s unjust enrichment claim was improperly dismissed. Cajun further contends
that the jury should not have been given an attorney’s fee question because Velasco did
not recover damages and that Velasco was not entitled to recover attorney’s fees because
it failed to segregate the fees. We affirm.

                                     BACKGROUND

       In September 2005, Velasco contracted with Cajun to provide labor and materials
for the expansion of a pump station located in Brazoria County, Texas (the “project”).
The original contract price was $12,974,000.       Velasco concurrently contracted with
Patterson Pump Company (“Patterson) to provide certain pumps, pump shafts, coupling
nuts, and other materials for Cajun to install at the project. Patterson also supplied
instructions for Cajun’s installation of the equipment. Cajun subcontracted its installation
responsibilities to Louisiana Crane Company, L.L.C. (“Louisiana Crane”).

       Velasco’s contract with Cajun (the “contract”) specified an agreed completion
date; if Cajun failed to complete the project on time, Cajun agreed to pay liquidated
damages of $750 per day.         The contract also specified certain dispute resolution
procedures under the Standard General Conditions of the Construction Contract (the
“general conditions”):

       10.05 Claims and Disputes
       A.     Notice: Written notice stating the general nature of each Claim,
       dispute, or other matter shall be delivered by the claimant to ENGINEER
       and the other party to the Contract promptly (but in no event later than 30
       days) after the start of the event giving rise thereto. Notice of the amount
       or extent of the Claim, dispute, or other matter with supporting data shall be
       delivered to the ENGINEER and the other party to the Contract within 60
       days after the start of such event (unless ENGINEER allows additional time
       for claimant to submit additional or more accurate data in support of such
       Claim, dispute, or other matter). A Claim for an adjustment in Contract
       price shall be prepared in accordance with the provisions of paragraph
       12.01.B. A Claim for an adjustment in Contract Time shall be prepared in
       accordance with the provisions of paragraph 12.02B. Each claim shall be
       accompanied by claimant’s written statement that the adjustment claimed is

                                              2
       the entire adjustment to which the claimant believes it is entitled as a result
       of said event. The opposing party shall submit any response to
       ENGINEER and the claimant within 30 days after receipt of the claimant’s
       last submittal (unless ENGINEER allows additional time).
       B.     ENGINEER’S Decision: ENGINEER will render a formal decision
       in writing within 30 days after receipt of the last submittal of the claimant
       or the last submittal of the opposing party, if any. ENGINEER’s written
       decision on such Claim, dispute, or other matter will be final and binding
       upon OWNER and CONTRACTOR unless:
              1. An appeal from ENGINEER’s decision is taken within the time
       and in accordance with the dispute resolution procedures set forth in Article
       16; or
              2. If no such dispute resolution procedures have been set forth in
       Article 16,[ 1] a written notice of intention to appeal from ENGINEER’s
       written decision is delivered by OWNER or CONTRACTOR to the other
       and to ENGINEER within 30 days after the date of such decision, and a
       formal proceeding is instituted by the appealing party in a forum of
       competent jurisdiction within 60 days after the date of such decision or
       within 60 days after Substantial Completion, whichever is later (unless
       otherwise agreed in writing by OWNER and CONTRACTOR), to exercise
       such rights or remedies as the appealing party may have with respect to
       such Claim, dispute, or other matter in accordance with applicable Laws
       and Regulations.
       C.     If ENGINEER does not render a formal decision in writing within
       the time stated in paragraph 10.05.B, a decision denying the Claim in its
       entirety shall be deemed to have been issued 31 days after receipt of the last
       submittal of the claimant or the last submittal of the opposing party, if any.
       D.     No claim for an adjustment in Contract Price or Contract Times (or
       Milestones) will be valid if not submitted in accordance with this paragraph
       10.05.
       On May 16, 2008, Cajun filed Claim #1 – 96” Pump Sole Plate Grout Removal
and Replacement, a claim for an adjustment in contract price of $139,157.00.                        On

       1
           Article 16, entitled “Dispute Resolution,” states:
       Dispute resolution methods and procedures, if any, shall be as set forth in the
       Supplementary Conditions. If no method and procedure has been set forth, and subject to
       the provisions of paragraphs 9.09 and 10.05, OWNER and CONTRACTOR may exercise
       such rights or remedies as either may otherwise have under the Contract Documents or by
       Laws or Regulations in respect of any dispute.
The Supplementary Conditions of the Contract do not set forth any dispute methods and procedures.

                                                       3
September 5, 2008, Baker Lockwood JV, the Engineer referenced in the contract, denied
this claim.      On July 2, 2008, Cajun filed Claim #2 – Coupling Nut Removal and
Installation, another claim for an adjustment in contract price of $163,540.00. Baker
Lockwood denied this claim also on September 5, 2008. On August 5, 2008, Cajun
submitted a revised Claim #3 – Fabrication Problems with the Patterson Pump
Equipment, a claim for an adjustment in contract price of $68,164.00. 2 On September 10,
2008, Baker Lockwood rejected part of this claim, but recommended that Velasco
approve an adjustment in contract price of $5,387.00 for this claim. On July 2, 2008,
Cajun submitted Claim #4 – Time Impact Analysis, a claim for an adjustment in contract
time of an additional 373 calendar days. Also on September 10, 2008, Baker Lockwood
rejected the bulk of this claim, but recommended that Velasco approve an adjustment in
contract time of an additional 30 days.

       The project was substantially completed on May 23, 2008, which was 275 days
later than the extended completion date. 3 After final completion of the project, Velasco
withheld $206,250.00 (275 days x $750/day) from the final contract payment as
liquidated damages.

       This dispute arose in February 2008 when Cajun sued Louisiana Crane for breach
of contract and negligence and later added claims against Patterson for negligence.
Subsequently, the trial court dismissed Louisiana Crane due to a forum selection clause in
the contract between Cajun and Louisiana Crane. On October 10, 2008, Cajun amended
its petition to add Velasco as a defendant, seeking the money Velasco had withheld from
Cajun’s final contract payment under theories of breach of contract and quantum meruit.
Velasco answered Cajun’s petition, asserting as is relevant here the following affirmative
defenses: (a) Cajun’s quantum meruit claim is barred by the existence of a contract
between the parties; and (b) Cajun’s contract claims are barred by its own prior material
breach of the parties’ contract. Velasco further alleged that Cajun had failed to perform

       2
           The record reflects that Claim #3 originally was filed on July 2, 2008.
       3
           Cajun requested and was granted 62 extra days to complete the project.

                                                      4
all condition precedents to suit, including failing to comply with the notice and claim
requirements and procedures of the parties’ contract. Velasco stated that because it is a
governmental entity, Cajun’s damage claims are limited to those statutorily authorized by
the Local Government Code. Finally, Velasco counterclaimed for breach of contract
against Cajun.

       Velasco filed a summary-judgment motion, but Cajun amended its petition on
October 2, 2009 to include additional claims that Velasco breached its contract by failing
to pay for the four claims submitted by Cajun to Velasco described above. Cajun sought
$406,000.00 in damages associated with Claim No. 4.

       In April 2010, Velasco filed an amended motion for summary judgment. The
amended motion addressed all of Cajun’s claims against Velasco and also sought
severance of Cajun’s claims against Velasco. In the motion, Velasco alleged that Cajun
failed to follow the general conditions notice provisions, excerpted above, in seeking to
recover on its claims. Specifically, it asserted that Cajun failed to meet all three of the
deadlines provided by the contract, including the requisite written notification of a claim
within 30 days of the event, notice of the amount or extent of the claim with supporting
data within 60 days after the start of the event, and written notice of its intent to appeal
from the Engineer’s final written decision within 30 days.         Velasco also requested
attorney’s fees as the “prevailing party” on a contract action and severance of Cajun’s
claims against Velasco if the motion were granted.

       Cajun responded to Velasco’s summary-judgment motion. It asserted that Velasco
could not prove the untimely notifications because, as to claims 3 and 4, George Kidwell,
Velasco’s chairman, testified during his deposition that he had no opinion regarding the
start of the events giving rise to these claims. Cajun further contended that because much
of Kidwell’s affidavit was based on an errata sheet to his deposition, it should be entirely
disregarded. Cajun argued that it submitted some of its claims in conformance with the
contract through email notifications. It stated that the only condition precedent to filing



                                             5
suit under the contract and general conditions was conformance with article 9, section
9.09(B) of the general conditions, which provides:

       The rendering of a decision by ENGINEER pursuant to paragraph 9.09
       with respect to any such Claim, dispute, or other matter . . . will be a
       condition precedent to any exercise by OWNER OR CONTRACTOR of
       such rights or remedies as either may otherwise have under the Contract
       Documents or by Law or Regulations in respect of any such claim, dispute,
       or other matter.
Cajun asserted that it had complied with this contract term because it waited until the
Engineer had denied its claims before filing suit. Cajun asserted that its failure to comply
with the notice provisions of section 10.05 of the general provisions did not bar its breach
of contract action against Velasco because it brought its claim within the statute of
limitations for a contract action and it met the condition precedent of section 9.09(B) of
the general provisions. Cajun also challenged Velasco’s request for attorney’s fees as
excessive.

       On August 10, 2010, the trial court granted Velasco’s first amended summary-
judgment motion except as to Velasco’s claims for attorney’s fees, which it stated would
be tried at a later date. A jury trial was conducted on attorney’s fees the week of
December 13, 2010. The jury found that a reasonable fee for the necessary services of
Velasco’s attorneys for preparation and trial was $225,000.00, for an appeal to the court
of appeals was $20,000.00, for filing a petition for review in the Supreme Court was
$10,000.00, for filing a brief on the merits in the Supreme Court was $10,000.00, and for
arguing before the Supreme Court was $5,000.00. On December 22, 2010, the trial court
signed a final judgment in which it granted Velasco’s prior motion for severance, ordered
that Velasco was entitled to retain the parties’ unpaid contract balance in the sum of
$206,250.00, ordered that Velasco was entitled to recover attorney’s fees under Chapter
38 of the Civil Practice and Remedies Code in the sum of $225,000.00, awarded
judgment for successfully making or responding to an appeal in the amounts found by the
jury as reasonable, and awarded Velasco costs of court and post-judgment interest. This
appeal timely followed.

                                             6
                        THE PARTIAL SUMMARY JUDGMENT

A.       Standard of Review and Applicable Law

         We review a trial court’s summary judgment de novo. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In reviewing a summary judgment, we take
as true all evidence favorable to the nonmovant, indulging every reasonable inference,
and we resolve any doubts in the nonmovant’s favor. Nixon v. Mr. Prop. Management
Co., 690 S.W.2d 546, 549 (Tex. 1985).          Where, as here, the trial court grants the
judgment without specifying the grounds, we affirm the summary judgment if any of the
grounds presented are meritorious. FM Props. Operating Co. v. City of Austin, 22
S.W.3d 868, 872–873 (Tex. 2000). “Issues not expressly presented to the trial court by
written motion, answer or other response shall not be considered on appeal as grounds for
reversal.” Tex. R. Civ. P. 166a(c). In a traditional motion for summary judgment, if the
movant’s motion and summary judgment evidence facially establish its right to judgment
as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact
issue sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v.
Willrich, 28 S.W.3d 22, 23 (Tex. 2000).

         Finally, the law in regard to contract interpretation is clear and well-settled. The
interpretation of an unambiguous contract is a question of law, which is reviewed de
novo. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650–51 (Tex.
1999).     With these principles in mind, we turn to the trial court’s partial summary
judgment on Cajun’s breach of contract and quantum meruit claims.

B.       Analysis

         Cajun challenges the partial summary judgment on three grounds: (1) it complied
with the contractual notice requirements or at minimum raised a fact issue regarding
whether it complied with the notice provisions; (2) the contractual notice provisions are
void pursuant to section 16.071 of the Texas Civil Practice & Remedies Code; and
(3) Cajun’s quantum meruit claim was improperly dismissed on summary judgment. Of


                                              7
these three issues, only the first was presented to the trial court. Because Cajun did not
present either its second or third issues to the trial court, we may not consider these
arguments on appeal as grounds for reversal. See Tex. R. Civ. P. 166a(c); Taylor v.
Louis, 349 S.W.3d 729, 737 (Tex. App.—Houston [14th Dist.] 2011, no pet.). We
accordingly address only Cajun’s first issue:         whether it complied with the notice
provisions or raised a fact issue regarding its alleged compliance with these provisions.

       As excerpted above, the general provisions of the contract contain three notice
requirements. First, a party must provide written notice stating the general nature of any
claim or dispute no later than 30 days after the start of the event giving rise to the claim
to the Engineer and the other party. Second, notice of the amount or extent of the claim
or dispute with supporting data must be delivered to the Engineer and other party within
60 days after the start of the event, unless the Engineer provides additional time for the
claimant to submit additional or more accurate data in support of the claim or dispute.
Finally, third, after the Engineer renders a formal written decision regarding the claim or
dispute, the party who intends to appeal the Engineer’s decision must file a written notice
of intent to appeal to the Engineer and the other party within 30 days after the date of the
Engineer’s decision. It is undisputed in this case that Cajun failed to file any notice of
intent to appeal to either the Engineer or Velasco.

       Cajun, however, asserts that these notice provisions are not conditions precedent
to suit. Instead, it contends that the only condition precedent to suit is a formal written
decision by the Engineer as stated in section 9.09B of the general provisions, excerpted
above. A condition precedent may be either a condition to the formation of a contract or
to an obligation to perform an existing agreement. Hohenberg Bros. Co. v. George E.
Gibbons & Co., 537 S.W.2d 1, 3 (Tex. 1976). Conditions may, therefore, relate to either
the formation of contracts or to liability under them. Id. Conditions precedent to an
obligation to perform are those acts or events which occur subsequent to the making of a
contract and which must occur before there is a right to immediate performance and
before there is a breach of a contractual duty. Id. If the condition is not fulfilled, the

                                             8
contract or obligation attached to the condition cannot be enforced. CDI Eng’g Group,
Inc. v. Admin. Exch., Inc., 222 S.W.3d 544, 548 (Tex. App.—Houston [14th Dist.] 2007,
pet. denied).

       Although the term “condition precedent” is not used in section 10.05, subsection
10.05D states: “No claim for an adjustment in Contract Price or Contract Times (or
Milestones) will be valid if not submitted in accordance with this paragraph 10.05.”
(emphasis added). Despite the fact that conditions precedent are disfavored such that
courts will not construe a contract provision as a condition precedent unless compelled to
do so by language that may be construed no other way, we conclude that this language
constitutes a condition precedent. See Criswell v. European Crossroads Shopping Ctr.,
792 S.W.2d 945, 948 (Tex. 1990) (holding that terms such as ‘“if,’ ‘provided that,’ ‘on
condition that,’ or some similar phrase of conditional language must normally be
included” to create a condition precedent). To construe this clause as anything other than
a condition precedent would be to ignore its plain language. Cf. T.F.W. Mgmt., Inc. v.
Westwood Shores Prop. Owners Ass’n, 162 S.W.3d 564, 570 (Tex. App.—Houston [14th
Dist.] 2004, no pet.) (noting that although conditions precedent are harsh in operation,
court cannot ignore plain language of a contract to avoid such harshness).

       A party seeking to recover under a contract bears the burden of proving that all
conditions precedent have been satisfied. Assoc. Indem. Corp. v. CAT Contracting, Inc.,
964 S.W.2d 276, 283 (Tex. 1998). Because Cajun did not comply with section 10.05’s
notice requirements, particularly the requirement that it notify both the Engineer and
Velasco of its intent to appeal the Engineer’s decision, it failed to satisfy the conditions
precedent to suing Velasco for breach of contract. See id.; CDI Eng’g Group, Inc., 222
S.W.3d at 548. Further, because it is undisputed that Cajun failed to notify either the
Engineer or Velasco that it intended to appeal the Engineer’s decision, Cajun did not
raise a fact issue on this matter. Accordingly, Velasco established it was entitled to
summary judgment on this issue, and we overrule Cajun’s issues related to the partial
summary judgment.

                                             9
                                  ATTORNEY’S FEES

A.     Standard of Review and Applicable Law

       Texas law prohibits recovery of attorney’s fees unless authorized by statute or
contract.   Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex. 2006).
“Reasonable” attorney’s fees are available to a prevailing party on a breach of contract
claim. Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (West 2008). We review an
award of attorney’s fees on the basis of breach of contract for an abuse of discretion. AU
Pharm. Inc. v. Thornton, 986 S.W.2d 331, 337 (Tex. 1996). The test for an abuse of
discretion is whether the trial court’s decision is arbitrary or unreasonable. Id.

       If any attorney’s fees relate solely to claims for which fees are not recoverable, a
claimant must segregate recoverable from unrecoverable fees. Tony Gullo Motors I, 212
S.W.3d at 313. “Intertwined facts do not make all attorney’s fees recoverable; it is only
when discrete legal services advance both a recoverable and unrecoverable claim that
they are so intertwined that they need not be segregated.” Id. at 313–14. With these
principals in mind, we turn to Cajun’s attorney’s fee issues.

B.     Analysis

       In Cajun’s fourth and fifth issues, it challenges the award of attorney’s fees to
Velasco. Specifically, in its fourth issue, it asserts that the jury should not have been
given a question on the award of attorney’s fees at all because Velasco did not recover
damages; rather, Velasco retained the liquidated damages authorized by the contract by
not paying Cajun the full contract price. However, Cajun did not challenge the award of
attorney’s fees on this basis in the trial court. It neither contended in its summary-
judgment response that Velasco was not entitled to attorney’s fees, nor challenged
attorney’s fees on this basis in the jury trial on fees. The only challenge it made to the
submission of the attorney’s fee question to the jury was that Velasco had not submitted
legally or factually sufficient evidence to support the submission:




                                             10
       We would object to the submission of the issue of attorneys’ fees because
       while the admitted failure to segregate attorneys’ fees on the part of the
       Plaintiff, they have not submitted legally sufficient or factually sufficient
       evidence to support this submission. So we will object to the submission of
       Question 1 on that basis and further move for an instructed verdict of a take
       nothing recovery on attorney fees at this time.
This objection does not comport with its complaint on appeal. See Lundy v. Masson, 260
S.W.3d 482, 507 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (citing State Dep’t
of Highways & Pub. Transp. v. Payne, 838 S.W.2d 234, 241 (Tex. 1992)). Accordingly,
this issue has not been preserved for our review, and it is overruled. See id.; Tex. R. App.
P. 33.1(a).

       In its fifth issue, Cajun asserts that Velasco was not entitled to recover attorney’s
fees because it failed to segregate the fees. The reporter’s record reflects that Cajun
proposed a jury instruction on the issue of segregation of attorney’s fees and objected to
the submission of a question without such segregation:          “Your Honor, Cajun has
proposed, if I may approach, an instruction to the jury on the issue of segregation. We
would object to the submission of a question without segregation and we would submit
Cajun’s proposed instruction to mitigate the issue of failure to segregate.” The trial court
refused the requested instruction.

       Here, all the claims at issue before the jury involved Velasco’s successful breach-
of-contract counterclaim. Cajun’s claims and Velasco’s counterclaim depended upon the
same essential facts, using the same documents and witnesses, and Velasco had to defeat
Cajun’s claims “before it could recover.” See Tony Gullo Motors I, 212 S.W.3d at 314.
Even Velasco’s defense to Cajun’s quantum meruit claim was premised on the existence
of the contract. Cajun’s quantum meruit claim arose out of the same transactions as its
contract-based claims and required the same proof as those claims. Hence, the legal work
performed by Velasco’s attorneys advanced both the prosecution of its breach-of-contract
counterclaim and the defense of Cajun’s claims, including Cajun’s quantum meruit claim.
The legal work performed by Velasco’s attorneys advanced both recoverable and
nonrecoverable claims. See id. at 313–14; cf. 7979 Airport Garage, L.L.C. v. Dollar Rent

                                            11
a Car Sys., Inc., 245 S.W.3d 488, 507–09 (Tex. App.—Houston [14th Dist.] 2007, pet.
denied) (concluding that fees incurred in defending against counterclaims did not have to
be segregated from those incurred in prosecuting breach-of-contract claim because claims
and counterclaims depended on same essential facts, relied on same documents and
witnesses, and appellee had to defeat appellant’s claims before it could recover). Under
these circumstances, we conclude that Velasco was not required to segregate its
attorney’s fees. We overrule Cajun’s fifth and final issue.

                                     CONCLUSION

       We have overruled Cajun’s first and fifth issues. We have further concluded that
Cajun failed to preserve its second, third, and fourth issues. Thus, these issues are also
overruled. Having overruled each of Cajun’s five issues, we affirm the trial court’s
judgment.


                                   /s/           Adele Hedges
                                                 Chief Justice


Panel consists of Chief Justice Hedges and Justices Christopher and Jamison.




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