                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-17-00005-CV

STAN MARTIN AND ROMA MARTIN,
                                                       Appellants
v.

COTTONWOOD CREEK CONSTRUCTION, LLC,
                                 Appellee


                           From the 249th District Court
                              Johnson County, Texas
                            Trial Court No. C201300177


                                     OPINION

       Stan and Roma Martin contracted with Cottonwood Creek Construction, LLC to

build the Martins a house. The estimated cost was over $880,000, and Cottonwood’s

estimated fees were over $120,000.     When the Martins failed to pay two draws,

Cottonwood suspended further work on the project. The Martins then retained another

contractor to finish the house.

       Cottonwood sued the Martins for breach of contract.     The Martins filed a
counterclaim against Cottonwood and a claim against a third party.1 After a jury trial,

the trial court rendered judgment against the Martins on all the claims alleged by the

parties.

          On appeal, the Martins raise five issues. Because we overrule each issue, the trial

court’s judgment is affirmed.

ANTICIPATORY REPUDIATION/LOST PROFITS

          In their first issue, the Martins assert the trial court erred in submitting Question 3

and in refusing to submit their Requested Question 4 on what they believed to be

Cottonwood’s claim of anticipatory repudiation. Specifically, the Martins assert that the

inclusion of the ability to recover damages for lost profits in Question 3 without another

question submitted about repudiation, was error. Alternatively, the Martins argue in

their second issue that if there was no error in the wording of Question 3, nevertheless

there was error in submitting it because there was no evidence to support the value

damages found by the jury.

          Initially, we note that a request for submission is the method of preserving the

right to complain of the omission of, or failure to submit, an issue or question which is

relied on by the complaining party. Lyles v. Tex. Employers' Ins. Asso., 405 S.W.2d 725, 727

(Tex. Civ. App.—Waco 1966, writ ref’d n.r.e.). An objection, on the other hand, is the

proper method to preserve a complaint as to (1) an issue or question actually submitted,

but claimed to be defective; or (2) the failure to submit, where the ground of recovery or




1
    The Martins have no issue on appeal regarding the third-party claim.

Martin v. Cottonwood Creek Construction, LLC                                               Page 2
defense is relied on by the opposing party. Id. See Religious of Sacred Heart v. Houston, 836

S.W.2d 606, 614 (Tex. 1992).

       At the charge conference, the Martins made the following objection to Question 3:

       Objection is made to Pattern Jury Charge Question No. 3 for the reason that
       it says, Cottonwood Creek may not recover – may recover not only for the
       value of the work actually done. There's been no evidence of the value of
       the work performed before this jury, and that assumes there was a value for
       work performed. Objection is further made that … for any profit
       Cottonwood Creek would have made had it been permitted to complete the
       contract. That assumes that the Martins repudiated the contract and
       stopped Cottonwood Creek from completing the contract. And that
       assumes a fact that has not been established, although pled by the Plaintiff.
       The Plaintiff has not submitted an issue for that. Therefore, I submit Issue
       No. 4, Question No. 4 for the jury on anticipatory repudiation.

                                                ***
       Objection is made to the lost profits, 12 percent fee for remaining contract
       balance. It assumes as an anticipatory repudiation by the Martins which
       requires an unconditional repudiation of which there's no evidence of and
       nevertheless assumes that before asking the jury to receive a lost profit.

The Martins objected to the submission of Question 3 because, according to the Martins,

the question was defective in that it included the ability to recover damages for lost

profits which assumed repudiation by the Martins.

       The Martins’ request for submission of Requested Question 4 regarding

anticipatory repudiation, however, did not preserve their complaint for appellate review

because anticipatory repudiation was not an issue relied upon by the Martins, i.e. the

complaining party. The Martins were required to object to the trial court’s failure to

submit a question on anticipatory repudiation because it was, arguably, a ground of

recovery relied on by Cottonwood. The Martins did not object. Thus, any complaint

about the trial court’s failure to submit the Martins’ Requested Question 4 on anticipatory

Martin v. Cottonwood Creek Construction, LLC                                           Page 3
repudiation is not preserved; and we need not decide that part of the Martin’s first issue.2

         As to the lost profits portion of the Martins’ first issue, they complain that the trial

court improperly included lost profits in Question 3. In substance, the Martins argue on

appeal that the damages question improperly mixed breach of contract damages with

damages only recoverable under quantum meruit. Question 3 provided, in relevant part:

         What amount of money, if paid in cash today, would fairly and reasonably
         compensate Cottonwood Creek for the Martins’ failure to comply with the
         Agreement?

         You are instructed that Cottonwood Creek may recover not only for the
         value of the work actually done, but also for any profit Cottonwood Creek
         would have made had it been permitted to complete the contract.
         Therefore, in answering Question No. 3, consider the following elements of
         damages, if any, and none other.
                                             ***
         Lost Profit (12% Fee) for Remaining Contract Balance: $65,514.35

The Martins argue that an attempt to recover lost profits is an attempt to recover on the

contract; but because the trial court instructed the jury that Cottonwood could recover

for the “value” of the work done, this was a recovery in quantum meruit for which

Cottonwood could not recover in addition to lost profits. The Martins contend the Court

should have used the phrase “work done” rather than the phrase “value of the work

done.”



2
 Additionally, we note that the jury was asked whether the Martins failed to comply with the Agreement,
which was Question 1, and answered, “Yes.” In Question 2, the jury was asked whether the failure to
comply with the Agreement was excused by a prior material breach by Cottonwood, which the jury
answered, “No.” Under the conditional submission of Question 3, the jury was then asked about damages.
Thus, while the Martins complain about the failure to submit a question on anticipatory repudiation of a
contract, which is one method of establishing a breach of contract, it is not the only type of breach. The
Martins fail to address why Question 1 and Question 2 do not properly set up Question 3 for damages for
their breach of contract as found by the jury.

Martin v. Cottonwood Creek Construction, LLC                                                       Page 4
        But that was not the objection the Martins made to the trial court. There, the

Martins only objected that there was “no evidence of the value of the work performed

before this jury, and that assumes there was a value for work performed.” The Martins

did not object that “value” corresponded to a recovery in quantum meruit which is

inconsistent with a recovery for breach of contract. In order to preserve error for

appellate review, a party's argument on appeal must comport with its argument in the

trial court. See In re D.E.H., 301 S.W.3d 825, 829 (Tex. App.—Fort Worth 2009, pet.

denied); Kershner v. State Bar of Tex., 879 S.W.2d 343, 347 (Tex. App.—Houston [14th Dist.]

1994, writ denied). Because the objection asserted at trial does not comport with the

complaint argued on appeal, the second portion of the Martins’ first issue that an

improper measure of damages was submitted is not preserved. See TEX. R. APP. P. 33.1(a).

        Accordingly, the Martins’ first issue is overruled.

VALUE

        Next, the Martins assert there is no evidence in the record to support the amounts

awarded by the jury of the “value of the work actually done” in response to the first eight

elements of damages in Question 3.

        As discussed above, the Martins equate the word “value” in Question 3 with

“value” for a recovery in quantum meruit. Quantum meruit is an equitable theory of

recovery which is based on an implied agreement to pay for benefits received. Heldenfels

Bros., Inc. v. Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992). The correct measure of damages

to recover on quantum meruit is the “reasonable value” of work performed and the

materials furnished. M.J. Sheridan & Son Co. v. Seminole Pipeline Co., 731 S.W.2d 620, 625

Martin v. Cottonwood Creek Construction, LLC                                          Page 5
(Tex. App.—Houston [1st Dist.] 1987, no pet.). But Cottonwood did not sue on quantum

meruit, it sued for breach of contract. Where a valid express contract covering the subject

matter exists, there can be no quantum meruit; and thus, recovery on both is inconsistent.

Id. at 624. Thus, that there may be no evidence of “value” as would be necessary for a

recovery in quantum meruit is of no consequence. There was no need for Cottonwood

to prove the type of “reasonable value” as required to recover in quantum meruit.3

        The Martins’ second issue is overruled.

ABATEMENT

        In their third issue, the Martins contend the trial court erred in abating the

underlying case pursuant to Chapter 27 of the Texas Property Code (Residential

Construction Liability Act; the “RLCA”), refusing to entirely lift the abatement, and

refusing to submit all of the Martins’ defect claims to the jury.4 We divide this issue into

two parts: the abatement and the submission of the defect claims.

Abatement under the RCLA

        In this part of the issue, we are called upon to determine, as an issue of first

impression, the manner in which a counterclaim for construction defects affects the

procedures for abatement and settlement under the RCLA. We review a trial court's



3
 While perhaps not the best language to use, the instruction comes directly from a construction breach of
contract case, Tower Contracting Co. v. Flores, 294 S.W.2d 266, 272-73 (Tex. Civ. App.—Galveston 1956)
modified on other grounds, 302 S.W.2d 396 (1957) (“the proper measure of damages, where the contractor sues
on the contract, is … the contract value of the work actually done plus any profit the contractor would
have made had he been permitted to complete the performance of his contract”).

4
 The Martins only complain about the abatement of their counterclaims against Cottonwood. They do not
complain about the abatement of their third-party claim. Thus, we will not discuss the propriety of the
abatement of the third-party claim.

Martin v. Cottonwood Creek Construction, LLC                                                        Page 6
action on a plea in abatement for abuse of discretion. Dolenz v. Cont'l Nat'l Bank of Fort

Worth, 620 S.W.2d 572, 575 (Tex. 1981); F&S Constr., Inc. v. Saidi, 131 S.W.3d 94, 98 (Tex.

App.—San Antonio 2003, pet. denied).

       Generally, the RCLA requires a claimant to provide written notice to a contractor

"specifying in reasonable detail the construction defects that are the subject of the

complaint" at least 60 days before the claimant “initiates an action” against the contractor.

TEX. PROP. CODE ANN. § 27.004(a) (West 2014). In addition to the notice requirement, the

contractor must be given (1) a reasonable opportunity to inspect the property that is the

subject of the complaint and (2) the opportunity to make a reasonable offer of settlement,

including an agreement by the contractor to repair or have repaired any construction

defect described by the claimant. See id. The notice provision activates a timetable for an

inspection of the property and the offer of settlement which, if reasonable, affects the

claimant's potential recovery under the Act. See id.; In re Anderson Constr. Co., 338 S.W.3d

190, 192 (Tex. App.—Beaumont 2011, orig. proceeding).

       A trial court is required to abate an action if, after a hearing, the court finds the

claimant failed to (1) provide the required notice, (2) give the contractor a reasonable

opportunity to inspect the property, or (3) follow the procedures specified in 27.004(b)

(regarding the offer of settlement and its related procedures). See TEX. PROP. CODE ANN.

§ 27.004(a), (d) (West 2014). An action is automatically abated without a court order

beginning the eleventh day after the date a verified motion to abate is filed if the motion

is not controverted by an affidavit filed by the claimant. See id. (d).

       Cottonwood filed a verified motion to abate the Martins’ counterclaim alleging

Martin v. Cottonwood Creek Construction, LLC                                           Page 7
they “failed to comply with the notice, inspection and settlement procedures of the

RCLA.” The Martins did not file a controverting affidavit. After a hearing, the trial court

ordered the counterclaim abated because the Martins failed to file a controverting

affidavit but also noted that the counterclaim had been automatically abated because of

the same failure.

        The Martins, however, were not required to controvert the motion to abate with

an affidavit. The Martins did not “initiate an action” as provided by subsection (a). See

TEX. PROP. CODE ANN. § 27.004(a) (West 2014). They filed a counterclaim which is

governed by subsection (c). Id. (c). Under subsection (c), notice is not required, and the

timetables for the opportunity to inspect and the offer of settlement are recalculated.5 Id.

Further, the abatement procedure in subsection (d) does not apply to actions governed

by subsection (c).

        Subsection (d) provides, in relevant part:

        The court … shall abate an action governed by this chapter if Subsection (c)
        does not apply and the court … after a hearing, finds that the contractor is
        entitled to abatement because the claimant failed to…provide the notice or
        failed to give the contractor a reasonable opportunity to inspect the
        property as required by Subsection (a), or failed to follow the procedures
        specified by Subsection (b). An action is automatically abated without the
        order of the court … beginning on the 11th day after the date a motion to
        abate is filed if the motion: … (2) is not controverted by an affidavit filed
        by the claimant before the 11th day after the date on which the motion to
        abate is filed.

TEX. PROP. CODE ANN. § 27.004(d) (West 2014) (emphasis added).                            Thus, because



5
  The pleadings of the counterclaim act as notice and are required to “specify in reasonable detail each
construction defect that is the subject of the complaint.” Id. (c). Cottonwood did not, and does not, contend
the Martins failed to reasonably detail each of the construction defects in their counterclaim.

Martin v. Cottonwood Creek Construction, LLC                                                          Page 8
subsection (c) applies to the Martins’ counterclaim, subsection (d) does not.

       Cottonwood disputes this interpretation of subsection (d).       Relying on In re

Anderson Constr. Co., 338 S.W.3d 190 (Tex. App.—Beaumont 2011, orig. proceeding),

Cottonwood contends that while the Martins were excused from providing notice under

subsection (c), they were not excused from giving Cottonwood an opportunity to inspect

the alleged defects or offer a settlement. Thus, its argument continues, the Martins were

still subject to the automatic abatement provision of subsection (d) because they did not

file a controverting affidavit.

       However, Cottonwood’s reliance on In re Anderson is misplaced. In re Anderson

was not a counterclaim case and cannot be used as support for the procedure to be used

when defects are raised in a counterclaim; i.e. when subsection (c) applies.

       Further, in construing a statute, words and phrases are read in context and

construed according to the rules of grammar and common usage. TEX. GOV'T CODE ANN.

§ 311.011(a) (West 2013). Initially, we note that subsection (d) is one full paragraph

composed of two sentences. In the first sentence, an abatement by court order is limited

to actions where “Subsection (c) does not apply.” The very next sentence discusses an

automatic abatement. There is no need to repeat the phrase “if Subsection (c) does not

apply” because a basic rule of thumb in paragraph construction is to keep one idea to one

paragraph.           See    Purdue       Online   Writing     Lab,     On       Paragraphs,

https://owl.english.purdue.edu/owl/resource/606/01/.          Our interpretation might

have been different had the second sentence been in a new paragraph. See id. (“If you

begin to transition into a new idea, it belongs in a new paragraph.”). It was not. Thus,

Martin v. Cottonwood Creek Construction, LLC                                         Page 9
reading the words and phrases of the statute in context and construing them according

to the rules of grammar and common usage as required, we find the statute is clear: the

entirety of subsection (d) does not apply when construction defects are raised in a

counterclaim.

          Subsection (d) was the only basis upon which Cottonwood sought an abatement.6

Thus, the trial court abused its discretion in issuing an abatement order because the

subsection (d) abatement procedure did not apply to the Martins’ counterclaim. For the

same reason, the trial court also abused its discretion in finding that the Martins’

counterclaim was automatically abated and in refusing to lift the abatement in its entirety.

Failure to Submit All Claims

          We next determine what, if any, effect the abatement had on the presentation of

the Martins’ counterclaim to the jury. Rule 278 of the Texas Rules of Civil Procedure

requires the submission of questions to the jury raised by the written pleadings and the

evidence. TEX. R. CIV. P. 278; Grohman v. Kahlig, 318 S.W.3d 882, 888 (Tex. 2010); Elbaor v.

Smith, 845 S.W.2d 240, 243 (Tex. 1992). A court may refuse to submit a requested jury

question if no evidence exists to warrant its submission. Grohman, 318 S.W.3d at 888;

Elbaor, 845 S.W.2d at 243. A judgment will not be reversed for charge error, however,

unless the error was harmful because it probably caused the rendition of an improper

verdict or probably prevented the petitioner from properly presenting the case to the

appellate court. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex.




6
    Subchapter (c) has its own provisions for abatement which do not include automatic abatement.

Martin v. Cottonwood Creek Construction, LLC                                                        Page 10
2009); see TEX. R. APP. P. 44.1.

        According to the pleadings, the Martins alleged that the retaining wall was

installed improperly, the concrete slab failed to match with the wooden floor, the concrete

slab in the garage tilted backwards and water puddled in the garage, the soffit over the

front door was incorrectly placed, the bay window was built without a ledge, and several

windows were damaged or would not open or shut. The Martins requested a question

to be submitted to the jury on all of those claims except the claim regarding the soffit.7

The request was refused. Instead, the trial court submitted Question 8 which identified

three general types of claimed construction defects. Those three types were: 1) the north

retaining wall; 2) the foundation; and 3) the installation of the windows.

        Assuming without deciding evidence supported the Martins’ requested jury

question, we find the trial court did not err because the jury question as submitted did

not differ in substance from the Martins’ requested jury question. First, the claim

regarding the retaining wall was clearly submitted in Question 8. Second, the parties,

witnesses, and counsel used the word “foundation” interchangeably with the word

“slab.” Thus, substantively, the claims regarding the slab, the slab’s match-up with the

wooden floor, and the slope in the garage floor were submitted in Question 8 under the

general label of “foundation.” Third, the majority of the testimony about the windows

dealt with the installation, or lack thereof, of a brick ledge for the bay window while a




7
  Specifically, the Martins’ proposed question listed the alleged defects as “the retaining wall,” “the brick
ledge in the bay window,” “the concrete slab,” “the concrete slab matched the wooden floor,” “the garage
floor,” and “windows.”

Martin v. Cottonwood Creek Construction, LLC                                                         Page 11
minority of the testimony dealt with the installation of windows that were cracked or

unable to be opened. Thus, the window claims were substantively submitted in Question

8 under the general category of “installation of windows.”

         A judgment shall not be reversed because of the failure to submit other and

various phases or different shades of the same question. TEX. R. CIV. P. 278. Because

Question 8 does not differ in substance from the Martins' requested question, we cannot

say the trial court’s failure to submit the Martins’ defect claims in the form of the question

requested by the Martins was error. See id.

         The Martins’ third issue is overruled.

GOOD AND WORKMANLIKE MANNER

         We next address whether the trial court erred in refusing to submit the Martins’

Requested Question 8. The Martins contend that Question 8 as submitted to the jury—

“Did Cottonwood Creek fail to perform its work in a good and workmanlike manner?”—

was incomplete. The Martins’ Requested Question 8 asked whether Cottonwood “failed

to design and build the house pursuant to the plans in a good and workmanlike manner[.]”

(Emphasis added). Submission of the Requested Question 8 was refused by the trial

court.

         The Martins’ pleadings defined “good and workmanlike manner” in terms of

“work” and “buil[d].” The term “design” was not used. Further, the Martins alleged in

their pleadings that the contract between the parties defined “good and workmanlike

manner” in terms of “work” rather than “design and build.”               Thus, the Martin’s

Requested Question 8 was not raised by the written pleadings, and the trial court did not
Martin v. Cottonwood Creek Construction, LLC                                           Page 12
err in refusing to submit it. See TEX. R. CIV. P. 278; Grohman v. Kahlig, 318 S.W.3d 882, 888

(Tex. 2010); Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992).8

       The Martins’ fourth issue is overruled.

ATTORNEY’S FEES

       In their fifth, and final, issue, the Martins request that, if this Court reverses the

damages judgment, we also reverse the award of attorney’s fees. Since we did not reverse

the damages judgment, we do not reverse the attorney’s fees award.

       The Martins’ fifth issue is overruled.

CONCLUSION

       Having overruled each issue raised on appeal, we affirm the trial court’s judgment.



                                               TOM GRAY
                                               Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 3, 2018
[CV06]




8
 Additionally, the question as requested by the Martins is nothing more than a different shade of the
question actually submitted and thus, was not error. See TEX. R. CIV. P. 278.

Martin v. Cottonwood Creek Construction, LLC                                                 Page 13
