                        NUMBER 13-06-00038-CV

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


CITY OF ALTON, CARTER & BURGESS, INC.,
TURNER, COLLIE & BRADEN, INC., AND
CRIS EQUIPMENT COMPANY, INC.,                                          Appellants,

                                         v.

SHARYLAND WATER SUPPLY CORPORATION,                                    Appellee.


                  On appeal from the 206th District Court
                        of Hidalgo County, Texas.


                          OPINION ON REMAND

    Before Chief Justice Valdez and Justices Rodriguez and Garza
              Opinion on Remand by Justice Rodriguez
      This case involves an appeal from a judgment in a jury trial. It is before us on

remand to address appellee Sharyland Water Supply Corporation’s (Sharyland)

negligence claim against appellants Carter & Burgess, Inc. (C&B), Turner, Collie &
Braden, Inc. (TCB), and Cris Equipment Company, Inc. (Cris) (collectively, the

contractors).1 See City of Alton, Carter & Burgess, Inc., Turner, Collie, & Braden, Inc. &

Cris Equip. Co. v. Sharyland Water Supply Corp., 277 S.W.3d 132, 138–41 (Tex.

App.—Corpus Christi), aff’d in part, rev'd and rendered in part, and rev’d and remanded in

part, 354 S.W.3d 407, 424 (Tex. 2012).2 On remand, the contractors contend that there

was no evidence to establish that (1) C&B or Cris owed a duty to Sharyland; (2) C&B

breached any duty owed; and (3) C&B, TCB, or Cris proximately caused Sharyland to

suffer any damages. By a fourth issue, the contractors challenge the sufficiency of the

evidence supporting the reasonableness of the jury’s damages award. We affirm in part

and reverse and render in part.

                                           I.       BACKGROUND

        In the early 1980s, Alton built a water distribution system and conveyed it to

Sharyland in exchange for Sharyland’s agreement to provide Alton residents with fresh

water.3 In the 1990s, Alton received financing to construct a sanitary sewer system.

Until the construction of the sewer system, Alton residents relied on a sewage disposal

        1
          Since we handed down our original opinion on rehearing, appellant Cris Equipment Co., Inc.
(Cris) has forfeited its charter and no longer exists. Still, Cris has a right to be heard on appeal. See
Vanscot Concrete Co. v. Bailey, 853 S.W.2d 525, 526–27 (Tex. 1993) (per curiam) (holding that a
corporation that had ceased to exist could nevertheless appeal a trial court's judgment against it); see also
Suntide Sandpit, Inc. v. H & H Sand & Gravel, Inc., No. 13-11-000323-CV, 2012 Tex. App. LEXIS 5870, at
*12–13 (Tex. App.—Corpus Christi July 19, 2012, pet. denied) (memo. op.).
        2
            The Texas Supreme Court either affirmed or reversed and rendered all issues involving the City
of Alton; therefore, the City of Alton is not before this Court on remand. See Sharyland Water Supply Corp.
v. Alton, 354 S.W.3d 407, 412–15 (Tex. 2011).
        3
          Other facts involved in this case are more fully set out in this Court's first opinion on rehearing and
in the supreme court’s opinion. See Sharyland Water Supply Corp., 354 S.W.3d at 410–12; City of Alton,
Carter & Burgess, Inc., Turner, Collie, & Braden, Inc., & Cris Equip. Co. v. Sharyland Water Supply Corp.,
277 S.W.3d 132, 138–41 (Tex. App.—Corpus Christi), aff’d in part, rev'd and rendered in part, and rev’d and
remanded in part, 354 S.W.3d at 424.

                                                       2
system that consisted of septic tanks and open ditches. Part of the septic system was

built in the public right-of-way and another part connected the septic system from the

public right-of-way to individual houses.                 For the public right-of-way phase, Alton

retained the services of L.L. Rodriguez and Associates to design the system, TCB, an

engineering company, to engineer and inspect the system, and C&B, an engineering

company, to manage construction of the sewer system.                          Alton also hired Cris, a

contractor, to build the system. Cris subcontracted with Grab Pipeline Services, Inc. to

assist in the installation.4 The construction of the sewer system was completed in 1999.

        To reach the houses on one side of the street, the sewer lines had to pass over or

under the water main. Beginning in late 1999 or early 2000, Sharyland dug up some of

the sites where the sewer lines crossed the water main. Sharyland expressed a concern

that service lines crossing over the water main (rather than under the water main) did not

have the required separation distance from the water main and that the crossings were

not “centered” so that joints in the sewer service lines were as far from the water main as

possible. When Sharyland and Alton could not work out an agreement over the service

line crossings, Sharyland filed this lawsuit against Alton and the contractors. Sharyland

asserted, among other things, that it was a third party beneficiary of the construction

contracts because the sewer lines at issue were constructed in a manner which was not in

conformance with regulatory standards or with the industry, engineering, and common

law standard of care to be taken when constructing new sewer lines in the proximity of

water lines. Sharyland also alleged that Alton and the contractors acted negligently in

        4
           The jury found no liability on the part of L.L. Rodriguez and Associates or Grab Pipeline Services,
Inc., and those entities are not parties to this appeal.

                                                      3
violating the duties created in contract or in not fulfilling their statutory and common law

duties created under the law.

       The contractors generally denied Sharyland’s claims. As to Sharyland’s contract

claim, the contractors specifically pleaded that Sharyland was not a third party beneficiary

of any contract or agreement with Alton or any other entity. As to Sharyland’s negligence

claims, the contractors denied that they owed any legal duty to Sharyland and, if there

was a legal duty, that their breach, if any, did not proximately cause damages. They

claimed that section 317.13 of title 30 of the Texas Administrative Code, which sets out

the design criteria for sewerage systems, did not apply to the service connections at

issue. See 30 TEX. ADMIN. CODE § 317.13(1)(A)–(B), repealed by 33 Tex. Reg. 6938

(2008).5 They also asserted that any damages were economic and, thus, barred by the

economic loss doctrine.

       The case was tried to a jury, which found that the contractors failed to comply with

their contracts with Alton and that Sharyland was a third party beneficiary to all of the

contracts.    It also found the contractors negligent, proximately causing damages to

Sharyland (C&B was found 20% responsible, Cris 40%, and TCB 40%).                            The jury

awarded Sharyland past damages of $14,000 and future damages of $1,125,000 as the

reasonable cost of repairs necessary to restore the property to its condition immediately

before the injury. The trial court entered judgment against the contractors.

       On appeal, this Court reversed and rendered judgment that Sharyland take

       5
          “Section 317.13 was repealed and has since been substantially incorporated into section 217.53
of the Texas Administrative Code.” Sharyland Water Supply Corp., 354 S.W.3d at 421 n.27 (citing 30 TEX.
ADMIN. CODE § 217.53; 30 TEX. ADMIN. CODE § 317.13(1)(B), repealed by 33 Tex. Reg. 6938 (2008)). For
the purposes of this opinion, we will refer to former section 317.13 as the applicable section.

                                                   4
nothing on its breach of contract claims against the contractors because Sharyland was

not a third party beneficiary to any construction contracts. City of Alton, 277 S.W.3d at

155. We also rendered judgment that Sharyland take nothing on its negligence claims

against the contractors because Sharyland’s water system had not been damaged, and

with purely economic damages, the economic loss rule barred Sharyland’s tort claims.

Id. at 154.

       Sharyland appealed to the Texas Supreme Court. See Sharyland Water Supply

Corp. v. City of Alton, 354 S.W.3d 407, 411–12 (Tex. 2011). Relevant to this appeal, the

supreme court reversed our judgment on Sharyland’s negligence claims against the

contractors. Id. at 420. It concluded that “the economic loss rule[, which bars a party

from recovering in negligence or strict liability for purely economic losses,] does not

preclude Sharyland’s negligence claim against [the contractors]” because Sharyland’s

water system was damaged. Id. In other words, the supreme court concluded that the

economic loss rule did not apply because there were damages to Sharyland’s water

system.       According to the supreme court, Sharyland’s water system was damaged

because,

       Sharyland's system once complied with the law, and now it does not.
       Sharyland is contractually obligated to maintain the system in accordance
       with state law and must either relocate or encase its water lines. These
       expenses, imposed on Sharyland by the contractors' conduct, were the
       damages the jury awarded. Costs of repair necessarily imply that the
       system was damaged, and that was the case here.

Id. And regarding “whether [the economic loss rule] should apply at all in a situation like

this,” the supreme court reasoned as follows:

                Merely because the sewer was the subject of a contract does not

                                            5
       mean that a contractual stranger is necessarily barred from suing a
       contracting party for breach of an independent duty. If that were the case,
       a party could avoid tort liability to the world simply by entering into a contract
       with one party.

Id. at 418–19.

       In addition, Sharyland argued before the supreme court “that the contractors failed

to maintain the required minimum distance between water lines and sewer lines, failed to

center the sewer pipes, and negligently installed those pipes above the water lines in

violation of section 317.13.” Id. at 422. In response, the contractors contended “that

section 317.13 applied purely to sewer mains, and not the residential sewer lines[, the

only portions of Alton’s sewer system] at issue here.” Id. The contractors argued “that

Sharyland’s entire case hinged on the 317.13 violation, and without it, there is no basis for

finding that the contractors were negligent.” Id. at 421. The supreme court disagreed

with the contractors’ argument. It determined that, as a matter of law, section 317.13

unambiguously applied to all sewer lines in this case, including the residential sewer

lines.6 Id. at 423. It provided the following explanation:

       6
           Section 317.13 provides, in relevant part, that,

              The following rules apply to separation distances between potable water and
       wastewater plants, and waterlines and sanitary sewers.

                 (1) Waterline/new sewer line separation. When new sanitary sewers are
                 installed, they shall be installed no closer to waterlines than nine feet in all
                 directions. Sewers that parallel waterlines must be installed in separate
                 trenches. Where the nine-foot separation distance cannot be achieved,
                 the following guidelines will apply.

                          (A) Where a sanitary sewer parallels a waterline, the
                          sewer shall be constructed of cast iron, ductile iron, or
                          PVC meeting ASTM specifications with a pressure rating
                          for both the pipe and joints of 150 psi. The vertical
                          separation shall be a minimum of four feet between
                          outside diameters. The sewer shall be located below the
                          waterline.
                                                        6
       Nowhere in chapter 317 were residential service connections excluded
       from the general meaning of "sewers" or "sanitary sewers." To the
       contrary, the breadth of the terms implies the definition that dictionaries give
       it: that is, underground pipes carrying domestic or industrial waste. We
       agree with the trial court that section 317.13 applied to the sewer lines in
       this case . . . .

Id.

       The supreme court remanded the case to this Court to address the negligence

issues involving Sharyland and the contractors, issues we did not reach in our earlier

opinion. See id. at 424.

                      II.     APPLICABLE LAW AND STANDARD OF REVIEW

A.     Negligence

       “Negligence arises when an actor breaches a legal duty in tort, and the breach

proximately causes damages.” Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271

S.W.3d 238, 246 (Tex. 2008).

       1.      Duty

       Because the threshold inquiry in a negligence case is duty, Sharyland must first

establish that the contractors owed a legal duty to it. See Nabors Drilling, U.S.A., Inc. v.

Escoto, 288 S.W.3d 401, 404 (Tex. 2009); Centeq Realty, Inc. v. Siegler, 899 S.W.2d

195, 197 (Tex. 1995); Yeager v. Drillers, Inc., 930 S.W.2d 112, 115 (Tex. App.—Houston



                       (B) Where a sanitary sewer crosses a waterline and the
                       sewer is constructed of cast iron, ductile iron, or PVC with
                       a minimum pressure rating of 150 psi, an absolute
                       minimum distance of six inches between outside
                       diameters shall be maintained. In addition, the sewer
                       shall be located below the waterline where possible and
                       one length of the sewer pipe must be centered on the
                       waterline.

See id. at 421–22 (quoting 30 TEX. ADMIN. CODE § 317.13(1)(A)-(B), repealed by 33 Tex. Reg. 6938).
                                                    7
[1st Dist.] 1996, no writ) (holding that “duty is the threshold question in a negligence

case”). A duty is a legal obligation that requires a defendant to conform to a certain

standard of conduct to protect others against unreasonable risks.          See Midwest

Employers Cas. Co. v. Harpole, 293 S.W.3d 770, 776 (Tex. App.—San Antonio 2009, no

pet.). “Actionable negligence presupposes the existence of a legal relationship between

the parties through which the wrongdoer owed a duty to the injured party. The duty may

be imposed by contract or, irrespective of privity of contract, by law.” Cook Consultants,

Inc. v. Larson, 700 S.W.2d 231, 233–34 (Tex. App.—Dallas 1985, writ ref’d n.r.e.).

Without a duty, the contractors cannot be held liable to Sharyland for negligence. See

Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam).

      The existence of a duty is a question of law for the courts to decide from the

essential, undisputed facts surrounding the occurrence in question. Nabors Drilling, 288

S.W.3d at 404; Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.

1990). The existence of duty is also a question of law when the evidence conclusively

establishes the pertinent facts or when reasonable inferences can be drawn from those

facts, as in this case. See Bennett v. Span Indus., Inc., 628 S.W.2d 470, 474 (Tex.

App.—Texarkana 1981, writ ref'd n.r.e.). In such instances, appellate courts review de

novo a determination regarding whether a legal duty is owed. Nabors Drilling, 288

S.W.3d at 404.

      2.     Breach, Proximate Cause, and Damages

      Sharyland must also establish that the contractors breached a duty owed and that

their breach, if any, proximately caused damages. See Hogue, 271 S.W.3d at 246. On


                                            8
appeal, the contractors complain that there was no evidence establishing breach,

proximate cause, or that the cost of repairs was reasonable.

       We will sustain a legal-sufficiency or no-evidence challenge if the record shows:

(1) the complete absence of evidence of a vital fact; (2) the court is barred by the rules of

law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the

evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence

establishes conclusively the opposite of a vital fact. City of Keller v. Wilson, 168 S.W.3d

802, 810 (Tex. 2005). When reviewing a no-evidence challenge, we view the evidence

in the light most favorable to the finding, crediting favorable evidence if a reasonable

fact-finder could and disregarding contrary evidence unless a reasonable fact-finder

could not. Id. at 807. The ultimate test for legal sufficiency is whether the evidence

would enable reasonable and fair-minded people to make the finding under review. Id.

at 827. In reviewing a no-evidence issue, the court indulges every reasonable inference

in support of that finding. Id. at 822. However, a reviewing court cannot disregard

undisputed evidence that permits only one logical inference. Id. at 814–15. Further, a

finding may not be supported by mere suspicion or surmise. Browning-Ferris, Inc. v.

Reyna, 865 S.W.2d 925, 927–28 (Tex. 1993). And incompetent evidence is legally

insufficient to support a judgment, even if admitted without objection. City of Keller, 168

S.W.3d at 812.

B.     Admissibility of Expert Testimony

               A two-prong test governs whether expert testimony is admissible:
       (1) the expert must be qualified, and (2) the testimony must be relevant and
       based on a reliable foundation. E.I. du Pont de Nemours & Co. v.
       Robinson, 923 S.W.2d 549, 554 (Tex. 1995)[; see TEX. R. EVID. 702]. "If

                                              9
       the expert's scientific testimony is not reliable, it is not evidence." Merrell
       Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 713 (Tex. 1997).
       Generally, courts review a challenge to the admission of expert testimony
       under an abuse of discretion standard. Whirlpool Corp. v. Camacho, 298
       S.W.3d 631, 638 (Tex. 2009). . . . "But a party may assert on appeal that
       unreliable scientific evidence or expert testimony is not only inadmissible,
       but also that its unreliability makes it legally insufficient to support a verdict."
       Id. . . . "[A] no-evidence review encompasses the entire record, including
       contrary evidence tending to show the expert opinion is incompetent or
       unreliable." [Id.] (citing City of Keller, 168 S.W.3d at 814).

              ....

              "Expert testimony lacking a proper foundation is incompetent, City of
       Keller, 168 S.W.3d at 813, and its admission is an abuse of discretion."
       TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 239 (Tex. 2010) (citing Cooper
       Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006)). . . . "The
       court's ultimate task, however, is not to determine whether the expert's
       conclusions are correct, but rather whether the analysis the expert used to
       reach those conclusions is reliable and therefore admissible." [Id.] (citing
       Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex. 2002)).

       . . . . “[I]f an expert’s opinion is based on certain assumptions about the
       facts, we cannot disregard evidence showing those assumptions were
       unfounded.” City of Keller, 168 S.W.3d at 813.

U.S. Renal Care, Inc. v. Jaafar, 345 S.W.3d 600, 606–07, 610 (Tex. App.—San Antonio

2011, pet. denied) (op. on reh’g).

C.     Reasonableness of Cost of Repairs

       A party seeking to recover costs of repair or completion must prove that the

damages sought are reasonable and necessary. McGinty v. Hennen, 372 S.W.3d 625,

627 (Tex. 2012) (per curiam) (rendering judgment in a breach-of-contract case where

there was no evidence to support the reasonableness of the remedial damages) (citing

Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 200 (Tex. 2004) (per

curiam)); see Allright, Inc. v. Lowe, 500 S.W.2d 190, 191–92 (Tex. Civ. App.—Houston


                                               10
[14th Dist.] 1973, no writ) (addressing the common-law principle that to establish the right

to recover the cost of repairs made to property wrongfully damaged by another, a

claimant ordinarily must prove that such repairs were necessary and the costs

reasonable). “To establish that, the plaintiff must show more than simply ‘the nature of

the injuries, the character of and need for the services rendered, and the amounts

charged therefor.’” McGinty, 372 S.W.3d at 627 (quoting Dallas Ry. & Terminal Co. v.

Gossett, 294 S.W.2d 377, 383 (Tex. 1956)). “Instead, some other ‘evidence showing

that the charges are reasonable’ is required.” Id. (quoting Gossett, 294 S.W.2d at 383);

see Fort Worth Hotel Ltd. P'ship v. Enserch Corp., 977 S.W.2d 746, 762–63 (Tex.

App.—Fort Worth 1998, no pet.) ("[M]ere proof of amounts charged or paid does not raise

an issue of reasonableness and such amounts ordinarily cannot be recovered without

evidence showing the charges were reasonable."). For example, expert testimony about

estimates for repairs, testimony of the person making the estimates or performing the

repairs, or approval of the repairs by a third party has been held sufficient to support an

award of damages based on the cost of repairs. See Ron Craft Chevrolet, Inc. v. Davis,

836 S.W.2d 672, 677 (Tex. App.—El Paso 1992, writ denied); Carrow v. Bayliner Marine

Corp., 781 S.W.2d 691, 694 (Tex. App.—Austin 1989, no writ); Liptak v. Pensabene, 736

S.W.2d 953, 958 (Tex. App.—Tyler 1987, no writ); see also Allright, Inc., 500 S.W.2d at

191–92 (requiring evidence of the reasonable cost of repairs, placement parts, towing,

and storage to recover and restore appellee's car that was recovered in a damaged

condition after it was stolen from a parking lot negligently operated by appellant).

However, an estimate without the testimony of the person who made it or other expert


                                            11
testimony is no evidence of the necessity of the repair or the reasonableness of the cost

of the repair. Jordan Ford, Inc. v. Alsbury, 625 S.W.2d 1, 3 (Tex. Civ. App.—San Antonio

1981, no writ); see Carrow, 781 S.W.2d at 694 ("When the expert who prepared the

estimate of repairs does not testify, the jury has no basis on which to evaluate the

estimate.").

D.      Law of the Case

        The "law of the case" doctrine is the principle by which questions of law decided on

appeal to a court of last resort will govern the case throughout its subsequent stages.

Loram Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex. 2006); Hudson v.

Wakefield, 711 S.W.2d 628, 630 (Tex. 1986); see City of Mission v. Cantu, 89 S.W.3d

795, 809 n.21 (Tex. App.—Corpus Christi 2002, no pet). “[W]e are bound to follow the

expression of the law as stated by the Texas Supreme Court.” Cantu, 89 S.W.3d at 809

n.21; see Ianni, 210 S.W.3d at 596; Hudson, 711 S.W.2d at 630.

        In this case, the supreme court agreed with this Court that “Sharyland was not a

third party beneficiary of the agreement between Alton and the contractors,” noting that

Sharyland is not “mentioned in the contracts” and concluding that there was no “evidence

that Alton and the contractors intended to confer a direct benefit on Sharyland.”

Sharyland Water Supply Corp., 354 S.W.3d at 421. In addition, because Sharyland’s

claim for attorney’s fees against the contractors was based on its third party beneficiary

theory [and not on its declaratory judgment action], the court concluded that “Sharyland

may not, therefore, recover its attorney’s fees against the contractors.”7 Id. at 423–24.


        7
          Sharyland claims that this Court reversed and remanded the trial court’s award of attorney’s fees
against the contractors for further determination and that the Texas Supreme Court affirmed this action.
                                                   12
        The supreme court also concluded that “[m]erely because the sewer was the

subject of a contract does not mean that a contractual stranger[, Sharyland,] is

necessarily barred from suing a contracting party[, the contractors,] for breach of an

independent duty.” Id. at 419. In this regard, as an alternate basis for affirming this

Court’s reversal on the negligence claim, the contractors urged that the trial court

incorrectly held that section 317.13 applied to the sewer lines in this case. Id. at 421. In

fact, the contractors argued that “Sharyland’s entire case hinged on the 317.13 violation,

and without it, there is no basis for finding that the contractors were negligent.” Id. In

response, the supreme court construed section 317.13 as a matter of law and determined

that it did apply “to the sewer lines in this case,” which included service connections. Id.

at 422–23.

        In addition, the supreme court concluded that Sharyland’s water system had been

damaged because the “system once complied with the law, and now it does not.” Id. at

420. It recognized that “Sharyland is contractually obligated to maintain the system in

accordance with state law and must either relocate or encase its water lines,” and that the

“[c]osts of repair necessarily imply that the system was damaged.” Id. at 420. The

supreme court identified the following evidence of damage:

        Sharyland presented evidence that it experiences between 100 and 150
        water system leaks each year. A break in the water line threatens

However, although we reversed and remanded “the award of attorney's fees for a determination of the
amount of the award, if any, properly attributable to Sharyland's declaratory judgment,” we did so in light of
our discussion of Sharyland’s claims against Alton. See City of Alton, 277 S.W.3d at 158. As to the
contractors, we reversed and rendered “judgment that Sharyland take nothing for damages and attorney's
fees on its contract claims and its negligence claims against C&B, TCB, and Cris.” See id. And the
supreme court concluded that “Sharyland may not, therefore, recover its attorney's fees against the
contractors” because those fees were based on Sharyland’s third party beneficiary theory, which the
supreme court rejected, and not Sharyland’s declaratory judgment action. Sharyland Water Supply Corp.,
354 S.W.3d at 423.
                                                     13
       contamination. There was evidence that when Sharyland excavated a
       representative sample of sixty-six sewer crossings, sixty of them had been
       illegally installed, and there was at least one leaking sewer pipe located six
       inches above a water pipe. There was also evidence that approximately
       340 locations would require remediation.

Id. Because Sharyland suffered property damage, the supreme court further concluded

the economic loss rule, which “does not govern here,” “does not preclude Sharyland’s

negligence claim against [the contractors].” See id. at 420, 424. Finally, regarding

damages, the supreme court concluded that “[b]ecause none of the contractors was

attributed a percentage of responsibility greater than 50%, the proportionate

responsibility statute” did not apply. Id. at 423–24.

       Because the above is the law of the case, we are bound to apply it in this

proceeding. See Ianni, 210 S.W.3d at 596; Hudson, 711 S.W.2d at 630.

                                         III.    DISCUSSION

A.     Duty8

       1.        C&B

       By the first issue, among other things, C&B contends that it owes no common law

duty to Sharyland.9 Relying on the proposition that the scope of any duty owed by C&B

to Sharyland is determined solely by the contract between C&B and Alton, C&B asserts

that the Texas Supreme Court has determined that the C&B/Alton contract did not create

any duty owed by C&B to Sharyland. See, e.g., Dukes v. Philip Johnson/Alan Ritchie,

Architects, P.C., 252 S.W.3d 586, 594–95 (Tex. App.—Fort Worth 2008, pet. denied)


       8
           On remand, TCB does not challenge the duty element of Sharyland’s claim.
       9
         Because our common-law analysis is dispositive of this issue, we need not analyze C&B’s
remaining claims challenging the duty element. See TEX. R. APP. P. 47.1.
                                                  14
(concluding, in a summary judgment proceeding, that, because there was no evidence

that the contract between architects Johnson/Ritchie and the City and the contract

between consultants Johantgen and Johnson/Ritchie required either party to report or

make safe any hazards detected or to provide a safety review to the City regarding the

Water Gardens where the Dukes’ family members died, they owed no duty to the Dukes);

Romero v. Parkhill, Smith & Cooper, Inc., 881 S.W.2d 522, 527 (Tex. App.—El Paso

1994, writ denied) (determining that nothing in the contract between the city and the

engineer gave the engineer the right to control the construction, and accordingly, the

engineer did not have a duty of care to an employee of a subcontractor to keep the

premises safe); see also Graham v. Freese & Nichols, Inc., 927 S.W.2d 294, 295 (Tex.

App.—Eastland 1996, writ denied) (concluding, in a summary judgment context, that

“[a]ppellee's contract reflects that appellee had no duty regarding safety at the work site”).

In this case, however, the supreme court only determined that Sharyland was not a third

party beneficiary to the C&B/Alton contract. Sharyland Water Supply Corp., 354 S.W.3d

at 421. It did not determine that C&B owed no duty to Sharyland under a tort theory, as

C&B argues. Instead, it remanded the negligence issues to this Court, the first of which

is to determine whether C&B owed a duty to Sharyland. See id. at 424.

       In support of its argument that C&B owes no common-law duty to Sharyland, C&B

cites Harpole for the proposition that courts apply the risk-utility test in deciding whether a

common-law duty exists.        See 293 S.W.3d at 779.         C&B generally identifies the

following factors courts consider when applying the risk-utility test: risk; foreseeablity;

likelihood of injury, balanced against the social utility of the actor’s conduct; the


                                              15
magnitude of the burden of guarding against the injury; and, the consequences of placing

this burden on the defendant. Id. C&B notes that when these factors are balanced, the

most important factor to consider is the foreseeability of the risk. See Harpole, 293

S.W.3d at 779. Apparently developing its discussion of foreseeability, C&B directs this

Court to another factor that courts consider in determining duty—whether a party had the

duty to control the conduct of the person who caused the plaintiff’s alleged injury. See

Graff v. Beard, 858 S.W.2d 918, 920 (Tex. 1993); Black + Vernooy Architects v. Smith,

346 S.W.3d 877, 892 (Tex. App.—Austin 2011, pet. denied) (en banc). C&B concisely

argues that the evidence does not establish that, as project manager, it had the right to

control the manner or method of the construction of the sanitary sewer system, so it owed

Sharyland no common-law duty. See Black + Vernooy Architects, 346 S.W.3d at 892

(concluding that the architectural firm did not owe a common-law duty to injured third

parties because it did not have the right to control the construction of the balcony through

its contract with the homeowner). We disagree.

       C&B’s Project Management contract with Alton stated that C&B’s scope of

services included the following:

              Task 3.
                    Assure that the project complies with all local, state, and
                    federal regulations relevant to the planning, and construction
                    of a wastewater collection and transmission system; [and]

                     ....

              Task 12.
                    Review the Engineer’s recommendation for the Resident
                    Project Inspector and advise the Owner . . . .

       C&B contends that the Alton/C&B contract did not obligate C&B to inspect

                                            16
construction or completed work. It urges that the contract only obligated C&B to review

the engineer’s recommendation for a project inspector, as directed by Task 12, and

therefore, its responsibilities under Task 3 related only to the various documents

comprising the design drawings for the project and to confirm that a competent design

engineer and a competent resident inspector had been engaged.               Based on this

reasoning, C&B asserts that the agreement imposes no duty to direct, oversee, or inspect

construction of the sewer project.

       The unambiguous language of Task 3 expressly states C&B will assure that the

project, not just the design drawings, complies with all relevant regulations.         It is

apparent that the scope of C&B’s duty, as set out in Task 3, included making certain that

the construction of all aspects of the project was in conformance with the law, engineering

standards, and industry standards. See Milner v. Milner, 361 S.W.3d 615, 619 (Tex.

2010) (citing Chrysler Ins. Co. v. Greenspoint Dodge of Houston, Inc., 297 S.W.3d 248,

252 (Tex. 2009) (per curiam)) (setting out that if the language of a contract can be given a

certain and definite meaning, it is not ambiguous and the contract’s construction is a

matter for the court).   We cannot conclude that Task 3 relates only to documents

comprising the project’s design drawings, as C&B argues. The language is not that

narrow; the intent of the parties as expressed in this scope of services provision is clear.

In addition, the method by which C&B was to assure conformance is not set out in the

contract. Therefore, even though another party inspected the property and, through

Task 12, C&B was to review TCB’s recommendations for that resident project inspector

and to advise Alton, we cannot conclude that Task 12 discharged C&B’s duty to make


                                            17
certain the project complied with all state regulations, among other things. An on-site

inspection is not the only method by which C&B could have assured construction

conformance, as C&B’s argument suggests.

       Moreover,

       [t]he fact that an act is induced by and done pursuant to a contract does not
       shield it from regular tort liability. One who undertakes to perform a
       contract assumes a duty to all persons to take reasonable care not to injure
       them or their property in the performance of that contract, and one who is
       not privy to the contract may assert a claim for negligence for a breach of
       that duty. Thomson [v. Espey Huston & Assoc.], 899 S.W.2d [415,] 421
       [(Tex. App.—Austin 1995, no writ)] (citing Sw. Bell Tel. Co. v. Delanney, 809
       S.W.2d 493, 494 (Tex. 1991) (op. corrected at 34 Tex. Sup. Ct. J. 749)).

Goose Creek Consol. Indep. Sch. Dist. of Chambers v. Jarrar's Plumbing, 74 S.W.3d 486,

494 (Tex. App.—Texarkana 2002, pet. denied) ("[T]he injury Goose Creek alleged, the

invasion of sewage and sewer gas into the school buildings, constitutes an injury to

property that was not the subject matter of the [plumbing] contract [between Lewis and

Jarrar’s Plumbing] . . . .   Jarrar's Plumbing owed an independent tort duty to use

reasonable care in the performance of the contract to install the plumbing so as not to

injure persons or property, and Goose Creek alleged that such injury to property was

caused by the failure to use such reasonable care. Therefore, Goose Creek properly

maintained a tort action for negligence against Jarrar's Plumbing . . . .”); Thomson, 899

S.W.2d at 421–22 (finding that, absent clear evidence to the contrary, a property owner is

not a third party beneficiary to a contract between a contractor and a subcontractor and

therefore cannot sue on the contract, but that the property owner may assert a claim for

negligence against a subcontractor based on the subcontractor's performance under the

contract where the cause of action is independent of the duties imposed by the contract).

                                            18
      In this case, the Alton/C&B contract imposed a contractual duty on C&B to perform

specified services for Alton; those services included assuring that the project complied

with all state regulations relevant to the construction of Alton’s sewer system. See

Milner, 361 S.W.3d at 619 (citing Chrysler Ins. Co., 297 S.W.3d at 252); Bennett, 628

S.W.2d at 474. At the same time, in undertaking to perform its contract with Alton, C&B

had an independent duty to take reasonable care not to injure Sharyland’s property—not

to negligently damage Sharyland’s sewer system. See Goose Creek Consol. Indep.

Sch. Dist. of Chambers, 74 S.W.3d at 494 (citing Thomson, 899 S.W.2d at 421) (citing

Delanney, 809 S.W.2d at 494)). If, as Sharyland alleges, incompetent services on the

part of C&B damaged its water lines, then C&B may be liable for that negligence in tort.

See id.

      2.     Cris

      Also by this first issue, Cris asserts that it owed Sharyland no legal duty in the

construction of the sewer system at issue in this case. The only argument Cris makes for

this contention is that section 317.13, the regulation upon which Sharyland relies, “does

not apply to the service connections [at] issue in this case. Therefore, that regulation

cannot be the basis of any duty upon which a finding of negligence against Cris may be

premised.” However, the Texas Supreme Court concluded that section 317.13 does

apply “to the sewer lines in this case,” which includes the service connections.

Sharyland Water Supply Corp., 354 S.W.3d at 422–23. The law of the case applies, and

this argument fails. See Ianni, 210 S.W.3d at 596; Cantu, 89 S.W.3d at 809 n.21.

      And one of the conditions of Cris’s contract with Alton provided that Cris “shall


                                           19
observe and comply with all . . . State . . . regulations which in any manner affect the

conduct of the work.” Also incorporated into the contract was Cris’s assurance to the

“Texas Water Development Board that it would construct Alton/McAllen Waste Water

Improvement project at Alton, Texas, in accordance with sound construction practice, all

laws of the State of Texas, and the rules of the Texas Water Development Board.” Thus,

the Alton/Cris contract imposed a contractual duty on Cris to perform specified services

for Alton; services that included observing and complying with all relevant state

regulations. In undertaking to perform its contract with Alton, Cris had an independent

duty to take reasonable care not to injure Sharyland’s property—not to negligently

damage Sharyland’s sewer system. See Goose Creek Consol. Indep. Sch. Dist. of

Chambers, 74 S.W.3d at 494 (citing Thomson, 899 S.W.2d at 421) (citing Delanney, 809

S.W.2d at 494)). If, as Sharyland alleges, Cris’s incompetent construction services

damaged its water lines, then Cris, too, may be liable for that negligence in tort.

       3.      Summary

       We overrule the first issue, which challenges the duty element of negligence.

B.     Breach

       By a second issue, only C&B challenges the breach element of Sharyland’s

negligence claim; TCB and Cris do not. 10              Recognizing that “Texas law restricts

evaluations of C&B’s activities in this case to the contractual duties [it] assumed in its

contract with Alton,” C&B contends that Sharyland’s experts, Randy Winston and William


       10
           TCB does not challenge the breach element. And although Cris generally challenges the
sufficiency of the evidence to support a negligence finding, it addresses only duty and damages.
Therefore, we need not address the breach element as to either TCB or Cris. See TEX. R. APP. P. 47.1.

                                                 20
Shea, could have had no reasonable basis for an opinion on C&B’s duties under the Alton

contract because neither Winston nor Shea read the Alton/C&B contract before trial.

C&B asserts that any opinion Winston or Shea might have given on the breach of such

duty was unreliable and, therefore, inadmissible. See U.S. Renal Care, Inc., 345 S.W.3d

at 606–07 (citing Whirlpool Corp., 298 S.W.3d at 638). C&B further contends that the

unreliability of the evidence makes it legally insufficient to support a verdict. See id.

       Although it is undisputed that neither expert read the Alton/C&B contract before

trial, the evidence establishes that each expert had years of experience working in this

area, taking bids and awarding contracts for similar construction. Sustaining C&B’s

objections, the trial court did not allow Winston to testify about the Alton/C&B contract.

Rather, the trial court allowed Winston to testify generally regarding other contracts and

other projects.

       We also note that the trial court admitted, without objection, the sewer system

contracts between each contractor or engineer and Alton. And from the C&B/Alton

contract, Winston read the following language included in its Scope of Services, Task 3:

C&B would “assure that the project complies with all local, State, and federal regulations

relevant to the planning and construction of a wastewater collection and transmission

system.”    Winston and Shea also testified that section 317.13, a sewer system

regulation, applied in this case.    The supreme court affirmed this conclusion.        See

Sharyland Water Supply Corp., 354 S.W.3d at 423.

       The trial court also allowed Shea to provide, over objection, the following testimony

about C&B’s contract with Alton:


                                             21
Q.     Mr. Shea, my question to you is this: What was your understanding
       of the contract that [C&B] had with the City of Alton?

A.     As—as a project manager, they would have had overall supervision
       of the work in progress. They would have been responsible for
       seeing that the work was done properly, it was done on time, the
       payments were made for the appropriate work that was done. And
       so they have to have a working knowledge of—of the—the project
       and—and what its progress is and to make sure that—that all the
       rules governing that type of work with—with the public utility is
       observed.

Q.     Assume with me that their contract provides that they will ensure that
       the project complies with all local, State[,] and federal regulations
       relevant to the planning and construction of a wastewater collection
       and transmission system and that it further provides that they will act
       as the owner’s representative in the administration of construction
       contracts. And based upon your review of the photographs that we
       went through earlier out of Exhibit 1, do you have an opinion as to
       whether or not they met their responsibilities under the contract with
       Alton?

       ....

Q.     Mr. Shea, my question was: Do you have an opinion?

A.     Yes, sir.

Q.     Can you tell us what your opinion is?

       ....

[A.]   My opinion is that if—in regard to the sewer service connections, and
       in particular the ones that I observed from the excavations that were
       made, the —work was not done properly or according to the plans
       and specifications.

Q.     Okay. And with respect to—did they meet their requirements under
       their contract with Alton?

       ....

A.     I don’t—I don’t believe that they fulfilled their duties entirely in regard
       to the project and—concerning particularly the sewer service

                                       22
             connections that I observed.

      Q.     . . . . Assume with me that their contract provides that they will
             ensure that the project complies with all local and State and federal
             regulations with a wastewater—and also assuming that their
             contract provides that they would act as an owner’s representative in
             the administration of the construction contract. And again, based
             on your review of the—of the photographs and your understanding of
             the Texas Engineering Practices Act, do you believe—what is—do
             you have an opinion with respect to whether or not Carter & Burgess
             met its responsibilities to the public?

             ....

      Q.     Mr. Shea, do you have an opinion?

      A.     Yes, sir, I do.

      Q.     What is your opinion?

             ....

      [A.]   My opinion would be—my opinion is that Carter & Burgess did not
             entirely fulfill their duties under this contract if they were
             knowledgeable of this—the manner in which these sewer service
             connections were being installed in this—in the vicinity of existing
             water lines.

Shea based his opinions, not on the reading of a particular contract between C&B and

Alton, but on assumptions.     And there is no evidence that the assumptions were

unfounded. See City of Keller, 168 S.W.3d at 813.

      We cannot conclude that Winston and Shea had no reasonable basis for their

opinions regarding C&B’s duties under the Alton contract, as C&B argues.         See id.

Rather, the analysis each expert used to reach his conclusions on the breach of such duty

was reliable and, therefore, admissible. See TXI Transp. Co., 306 S.W.3d at 239 (citing

Exxon Pipeline Co., 88 S.W.3d at 629). We conclude that the trial court did not abuse its


                                            23
discretion in admitting the testimony of Winston and Shea. See id. (citing Cooper Tire &

Rubber Co., 204 S.W.3d at 800).

       We also note that engineers employed by the Texas Natural Resource

Conservation Commission (TNRCC) testified, through deposition testimony, that the

sewer system was not constructed as required by section 317.13. For example, TNRCC

engineer Louis C. Herrin testified that “[o]n separation distances [between the sewer line

and the water line,] it would not meet the separation distances as specified in 317. . . .

The separation distances are too close.” C&B assured, through its contract with Alton,

that the project would comply with all state regulations relevant to the planning and

construction of a wastewater collection and transmission system.           This compliance

would include section 317.13.

       Thus, viewing the evidence in the light favorable to the finding, we find more than a

scintilla of evidence that C&B, the engineering company that managed the construction of

the sewer system, disregarded the appropriate criteria for installation of new sewer lines

in the proximity of waterlines, a requirement set out in its contract with Alton. See City of

Keller, 168 S.W.3d at 807, 810.         We conclude that the evidence would enable

reasonable and fair-minded people to find that C&B breached the duty owed to

Sharyland; the evidence is legally sufficient in this regard. See id. at 827. We overrule

the second issue, which addresses the breach element.

C.     Proximate Cause

       By the third issue, the contractors complain that there was insufficient evidence to

establish that their actions proximately caused damages. Yet the Texas Supreme Court


                                             24
expressly determined the following:

        Sharyland’s [freshwater] system once complied with the law, and now it
        does not. Sharyland is contractually obligated to maintain the system in
        accordance with state law and must either relocate or encase its water
        lines. These expenses, imposed on Sharyland by the contractors’ conduct
        were the damages the jury awarded. Costs of repair necessarily imply that
        the system was damaged, and that was the case here. Sharyland
        presented evidence that it experiences between 100 and 150 water system
        leaks each year. A break in the water line threatens contamination.
        There was evidence that when Sharyland excavated a representative
        sample of sixty-six sewer crossings, sixty of them had been illegally
        installed, and there was at least one leaking sewer pipe located six inches
        above a water pipe. There was also evidence that approximately 340
        locations would require remediation.

Sharyland Water Supply Corp., 354 S.W.3d at 420. We are bound by this determination,

see Ianni, 210 S.W.3d at 596; Hudson, 711 S.W.2d at 630; Cantu, 89 S.W.3d at 809 n.21,

and overrule the third issue, which challenges the proximate cause element of

Sharyland’s negligence claim.

D.      Reasonableness of Damages

        By the fourth issue, the contractors argue that the damages award must fail

because Sharyland offered no competent evidence that the cost of the repairs, past or

future, was reasonable. The damages question on negligence asked the jury what sum

of money would fairly and reasonably compensate Sharyland for its damages, if any,

proximately caused by the contractors’ negligence. That question had one damages

element, “The reasonable cost of the repairs necessary to restore the property to its

condition immediately before the injury.”11 The jury awarded Sharyland $14,000 for past


        11
          The contractors do not contend that Sharyland did not prove the repairs sought were necessary.
See McGinty v. Hennen, 372 S.W.3d 625, 627 (Tex. 2012) (per curiam). So that issue is not before us.
See TEX. R. APP. P. 47.1.

                                                  25
repairs and $1,125,000 for future repairs.

      1.      Past Repair Costs

      The contractors first contend that Sharyland cannot recover for past costs of

repair. They argue that Sharyland has no past repair costs to recover, only investigative

costs. They further assert that even the investigative excavation costs were not proven

reasonable.

      Sharyland called Jim Stuhlman, a twenty-eight-year employee of Sharyland, to

testify regarding past costs.    Stuhlman testified that, during his investigation, he

excavated the locations in order to take photographs. When asked what the costs were

for the seventy crossings he investigated, Stuhlman provided the following answers:

      Q.      . . . When you sent these crews out to investigate these sites, what
              did it cost?

      A.      A guesstimate would be about $15,000.

      Q.      Okay how much did it cost for each—each one?

      A.      In the neighborhood of $200 to $250 for each one.

      Q.      Okay. Is that a pure guess or is that your estimate based on—

      A.      It’s a little of both. We pay a contractor to—to do the work. He
              charges us by the location. That’s $150 on each location, plus there
              is the time and vehicles of my own people while we’re out there.

              ....

      Q.      And for these 70 crossings that you dug up, what did he charge you
              on average?

      A.      He charged—he charged us on average $150.

      Q.      Okay. In addition to that, what costs did Sharyland incur in terms of
              its own personnel?

                                             26
       A.     That varied with each one because it depended how many people
              went out, how many vehicles were there, whether I went with
              everyone or not.

       Q.     On average, what did it cost?

       A.     Between $50 and $100.

              ....

       Q.     In the cost that the corporation has expended in excavating, was
              there any money at all spent on—on repairing any perceived
              problem?

       A.     No.

       Assuming without deciding that investigative or diagnostic costs are recoverable

as repair costs, we agree with the contractors that Sharyland did not offer evidence of the

reasonable cost of past repairs. Stuhlman based his estimate for the excavation costs

on what a contractor charged Sharyland, “on average.”         This is the only testimony

regarding the cost of past excavations. The jury simply heard Stuhlman suggest a

number reached by someone else, without more. He did not tell the jury how the

average contract charge of $150 to dig up each location may have been reached. The

contract upon which the figure was based was not entered into evidence. There is no

evidence showing that the contract charge of $150 was reasonable. See Fort Worth

Hotel, 977 S.W. 2d at 762–63. In addition, Stuhlman provided general, not specific,

information regarding Sharyland’s personnel costs for each location—an average cost of

between $50 and $100. Stuhlman never told the jury why his “guesstimate” of a total

cost of $15,000 or why an amount “[i]n the neighborhood of $200 to $250 for each

[excavation]” was reasonable. We conclude that this is no evidence that the charges

                                            27
were reasonable. See Mustang Pipeline Co., 134 S.W.3d at 201; Fort Worth Hotel Ltd.

P'ship, 977 S.W.2d at 762–63 (concluding that the hotel owner failed to establish the right

to recover costs of repairs after an explosion damaged the hotel because the hotel owner

did not present sufficient evidence to justify the jury's finding that costs were reasonable

and repairs necessary).

       Viewing the evidence in the light favorable to the finding and indulging every

reasonable inference in support of a reasonableness finding, we conclude the evidence,

which is based on mere surmise, is not legally sufficient because it would not enable

reasonable and fair-minded people to find that the cost was reasonable. See City of

Keller, 168 S.W.3d at 807, 822, 827; Browning-Ferris, Inc., 865 S.W.2d at 927–28. We

conclude that Sharyland offered no evidence that the excavation costs awarded as past

repairs in the amount of $14,000 were reasonable.

       2.     Future Repair Costs

       The contractors also contend that Sharyland did not prove the reasonableness of

future repair costs. TCB specifically asserts that “Winston, Sharyland’s engineering

expert, had no basis for his estimate of future repair costs because, at bottom, he relied

on a single price quote, not competitively bid, that he and fellow engineer Shea randomly

inflated.” It also argues that “[t]he jury, therefore, had no basis for determining whether

the future repair costs were reasonable.” We disagree.

       Here, Sharyland presented the testimony of its expert Winston, who had

developed a repair estimate.       Providing a detailed description of his method for

calculating damages, Winston testified that he (1) utilized his past experience, (2) took


                                            28
Shea’s projected 2001 costs that were based on a contractor’s information and some of

Shea’s known information on how to repair these lines, and (3) applied a price increase

factor to determine what “a current figure would be to hire a contractor and have it done.”

On cross-examination, Winston responded to questions regarding the data from the

contractor that he and Shea had used in developing their repair estimates. According to

Winston, four years before trial, Shea asked DCR Demolition and Utility for an estimate of

what it would cost to excavate a crossing and to encase a water main. Winston agreed

that in response to Shea’s inquiry, DCR estimated that it would cost $400 for each

excavation and $2,000 per crossing, including the initial excavation, to encase the water

main with a 10-inch split steel casing, and $1,700 for concrete. Shea increased the

estimate for an excavation without repairs from $400 to $500; Winston testified he did not

know how Shea arrived at the increased amount, but was “sure he used his engineering

judgment and may have talked to other contractors. . . .”

       Winston testified that approximately four years later, he took Shea’s 2001 cost

estimates and applied a price factor—“a 25 percent price increase”—to bring it to current

prices due to, among other things, material and labor and the cost of fuel, all of which had

“really escalated.” Winston reported that his calculations resulted in an excavation cost

of $625, plus an encasement cost of $2,500 for each water main that was in violation of

the code. According to Winston, “[t]he $2,500 would reflect going in there and—and

. . . welding up or taking a steel casing and going around the pipe, welding it up and then

filling the pipe void, if I recall correctly, with concrete on the ends to seal the ends.”

       In calculating damages, Winston testified that, at the time the plans were drawn,


                                              29
there were 440 sewer lines that crossed Sharyland’s water line. According to Winston,

after checking twenty-two crossings, they found seventeen, or 77 percent, that were in

violation of the code. Of the 440 crossings, then, there would be 340 (77 percent)

potentially violating code. Winston testified that, using a statistical model of a 95 percent

competence level, he was approximately 95 percent confident that the number of

violations would fall between 252 and 425, with a straight extrapolation or median number

of 340 crossings in violation. In sum, using a sample of damages that were observed by

digging up areas where the sewer lines crossed Sharyland’s water lines, Winston

calculated the percentage of violations requiring repairs at 77 percent with a 95 percent

competence level and determined a range of crossing in violation from 252 to 425.

       Based on these figures and cost calculations set out above, Winston projected that

the total cost to dig up the 440 crossings to determine which crossings violated the code,

at $625 each, would be $275,000. Winston testified that the total encasement cost of the

projected 340 crossings that would be in violation of the code, at $2,500 each, which he

acknowledged on cross-examination did not include excavating the crossing, would be

$875,000, bringing the combined cost to $1,125,000.

       During cross-examination, Winston was questioned regarding Stuhlman’s

testimony. As detailed above, Stuhlman testified that each excavation cost him $150 to

dig, which, as defense counsel noted, is approximately one-fourth of what Winston

estimated the excavation costs to be. Winston responded that the difference between

Stuhlman’s $150 cost and his $625 estimate “may be that they have got on retainer a

company to do repairs in this type of work.” At the request of defense counsel, using that


                                             30
same calculation, Winston also determined that approximately one-fourth of his $2,500

estimate to repair the crossing in violation of the code would be $600. And using this

lower calculation figure for uncovering all 440 crossings and fixing 250, the excavation

cost would be $66,000 (440 times $150) and the repair costs, $151,200 (252 times $600),

with a total cost of $217,200. On the high end, the excavation cost would remain

$66,000 and the repair costs $255,000 (425 times $600), with a total cost of $321,000.

With those numbers, Winston agreed that the range would be from $217,200 to

$321,000.

      On re-direct, with regard to the suggested $600 repair cost, Winston testified, over

objection, that “[f]or the type of repairs needed to—to do what we’re doing, there would

be—I do not feel like there is any way to do it for the $600 per unit basis the [defense

counsel] talked about.” Again, over objection, when asked in his professional opinion

whether he could think of a cheaper way to correct the problems he identified on

Sharyland’s water lines, Winston responded as follows: “[I]t is an expensive option but

one that is necessary to correct Sharyland’s water supply lines if the wastewater lines

themselves are not corrected. This is one of the better alternatives to fix it because we

would not be shutting down all the individual houses and large amounts of people on that

water line.   If we were cutting out water lines, lowering them, changing water line

locations, that cost could be very high.” Winston also testified that he believed that the

$625 excavation figure was more reasonable than the $150 amount testified to by

Stuhlman because “of the extensiveness and because of—of the amount that you’d have

to dig to do [the type of excavation needed]. So that’s why . . . [he] used that number.”


                                           31
      Having the opportunity to consider this range of figures provided through

Winston’s testimony, the jury awarded $1,125,000 in future damages. The jury was

presented with evidence that allowed it to assess the facts and award damages

accordingly. Sharyland did not just present one amount for damages alone as evidence

of the amount estimated.      Sharyland provided expert testimony utilizing the DCR

estimate that was secured and evaluated by Shea and factoring in, among other things,

the investigation of the twenty-two sewer crossings, the types of available encasements,

and the increased costs over time. This testimony revealed factors that were considered

that ensured the reasonableness of the damages awarded by the jury. See McGinty,

372 S.W.3d at 628. Sharyland presented evidence from which the jury was able to infer

reasonableness.    See Carrow, 781 S.W.2d at 694.          There was testimony about

estimated costs for repairing damages to Sharyland’s water system.          These were

damages that would be incurred in the future if Sharyland were to ensure that its water

system complied with state regulations. Winston testified as to the number of crossings

checked and the percentage found to be in violation, the number of crossings to be dug

up, the estimated number of crossings to be repaired, and the estimated costs for digging

up each crossing and making those repairs. Winston testified and was cross-examined.

The evidence was before the jury, allowing the jury to infer the reasonableness of the

estimates and to award future repairs in the amount of $1,125,000.

      Based on the above, we conclude that the evidence is legally sufficient for

reasonable and fair-minded jurors to find that the cost of future repairs awarded was

reasonable. See City of Keller, 168 S.W.3d at 807, 822, 827; Browning-Ferris, Inc., 865


                                           32
S.W.2d at 927–28.

       3.     Summary

       Having concluded that there was no evidence that the cost of past repairs was

reasonable, we sustain that portion of the fourth issue. But having concluded that the

evidence is legally sufficient to support the reasonableness of the amount of damages

awarded for future repairs, we overrule that portion of the fourth issue.

                                   IV.     CONCLUSION

       We reverse and render that Sharyland take-nothing as to past damages and affirm

the remainder of the judgment as to Sharyland’s negligence claim against Carter &

Burgess, Inc., Turner, Collie & Braden, Inc., and Cris Equipment Company, Inc.


                                                               NELDA V. RODRIGUEZ
                                                               Justice

Delivered and filed the
30th day of May, 2013.




                                            33
