Dave Leonard Construction Company v. Duo Distributors, Inc.

cv0-119 IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-90-119-CV DAVE LEONARD CONSTRUCTION COMPANY, APPELLANT vs. DUO DISTRIBUTORS, INC., APPELLEE FROM THE COUNTY COURT AT LAW OF TOM GREEN COUNTY NO. 13,278-L, HONORABLE R. L. BLANN, JUDGE Dave Leonard Construction Company appeals from a trial-court judgment awarding DUO Distributors, Inc., money damages for breach of contract, and ordering that Leonard take nothing by its counterclaim against DUO for breach of the same contract. We will reverse DUO's judgment against Leonard and render judgment that DUO take nothing. We will affirm that part of the judgment ordering that Leonard take nothing by its counterclaim against DUO. THE CONTROVERSY Leonard undertook, as general contractor, to erect a heating and cooling plant for Angelo State University. The work required the installation of skylights that Leonard contracted to buy from DUO. DUO contracted, in turn, to purchase the skylights from the manufacturer, Dawn Products. In June 1987, Leonard executed DUO's purchase-order form. In the space provided for a delivery date, the words "See schedule" were inserted. The "job site" was specified as the place of delivery. Subsequently, in November 1987, Leonard furnished DUO a notice approving the specifications to which the skylights were to be specially fabricated. The notice included the following statement: This material will be needed on the job no later than (as scheduled). Failure to deliver material to the job by the time stipulated will be grounds for cancellation. Dawn fabricated the skylights to Leonard's specifications and they were delivered to the job site December 21, 1987. Leonard did not then need them because construction had progressed only as far as the basement of the plant. Leonard refused to accept the skylights for want of storage space. The shipper stored them for a period, then sold them to recover its costs. DUO sued in the present cause to recover the contract price when Leonard refused to pay for the skylights. Leonard counterclaimed for damages and attorney's fees based on DUO's alleged failure to deliver the skylights according to the "job schedule," that is to say, when the skylights were required for incorporation in the work. After a bench trial, the court below awarded DUO a judgment for breach of contract, in the amount of $4,094.00 and interest, while adjudging that Leonard take nothing by its counterclaim. Leonard appeals. DISCUSSION AND HOLDINGS The trial court filed findings of fact and conclusions of law. These show that DUO's judgment rests on a premise that the parties' contract did not specify a delivery date because Leonard never supplied DUO a "job schedule." Thus, the law imputed to the contract an agreement that the skylights would be delivered at a "reasonable time." Tex. Bus. & Com. Code Ann. § 2.309(a) (1968). To recover on that premise, the burden lay upon DUO to prove delivery at such a time. City of Fort Worth v. Rosedale Park Apartments, 276 S.W.2d 395, 397 (Tex. Civ. App. 1955, writ ref'd). "What is a reasonable time for taking any action depends on the nature, purpose and circumstances of such action," Tex. Bus. & Com. Code Ann. § 1.204(b) (1968), and usages of trade may be material and important in fixing a reasonable time in a particular case. Id., comment 2. In the present case, the findings of fact and conclusions of law set out a theory that a "reasonable time" for delivery was "as soon as possible" under the following usages of trade: 1. The reference to a "job schedule" in the purchase order and in the specifications-approval notice meant that delivery was required "as soon as possible," when no such schedule was supplied by Leonard. 2. Once approval of specifications for skylights that are to be manufactured to irregular dimensions is received, the manufacturer is notified to proceed with production, and upon completion of manufacture, to deliver the skylights to the designated site. Among other points of error, Leonard contends on appeal that numbers 1 and 2 above are not supported by evidence that is legally or factually sufficient. We will sustain the contention that the evidence is not legally sufficient, considering the evidence in a light most favorable to DUO, and only the supporting evidence and inferences therefrom, while ignoring all contrary evidence and inferences. See W. Powers and J. Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Texas L. Rev. 515, 522 (1991); Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Texas L. Rev. 361, 364-65 (1960). We may not hold the evidence "legally insufficient" unless we are persuaded that a "vital fact may not reasonably be inferred from the meager facts proved in the particular case." Calvert, at 365. We find in the statement of facts no evidence to support an inference that the reference to a "job schedule" implied that delivery must be "as soon as possible" because that is a "usage of trade" within the meaning of Tex. Bus. & Com. Code Ann. § 1.205(b) (1968). Nor can we find any evidence to support an inference that a usage of trade requires delivery of specially manufactured items as soon as approval of specifications is received.1 DUO insists the necessary inferences may be drawn from pages 83-86 of the statement of facts, setting out part of the testimony on cross-examination of Leonard's witness Roberson. We find, however, that such testimony tended to establish only the following propositions: 1. It is important for Roberson's company (a supplier of acoustical tile for ceilings) to know when it is "supposed to have [the] stuff there at a job site" in order to avoid delaying the construction project. 2. It is important for suppliers like DUO and Roberson's company to get "information" from the contractor in order that the suppliers can do their jobs on time. 3. If a contractor has stated that he is going to construct the work by a schedule, and that he is going to send the supplier a schedule, Roberson would expect to receive one; however, it is not customary for suppliers to be furnished a schedule. 4. In case of "a special order product" that would not "fit any other project in the whole world," it would be "reasonable" and "important" for the supplier to be told if the product would not be needed for about 20 months when the entire project covered two years. 5. It is "not customary" for the contractor "to send a schedule to the suppliers," and while Roberson would "suppose" it is "normal" for a contractor to print "see schedule" on printed forms like those used in the present case, and Roberson had seen that done "a few times," it means "'see schedule' or 'find out . . . when.'" Nothing in the foregoing tends logically to imply "any practice or method of dealing having such regularity of observance in a place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question." Tex. Bus. & Com. Code Ann. § 1.205(b). At best, Roberson's testimony establishes only that delivery dates are important to construction contractors and their suppliers alike, but it is not customary for contractors to furnish job schedules to their suppliers because they will inquire to "find out . . . when" their items are to be delivered during the course of construction. We therefore sustain Leonard's second point of error, and reverse the trial-court judgment insofar as it awards DUO damages for breach of contract, rendering judgment that DUO take nothing by its claim. Leonard also seeks nominal damages, for DUO's breach of the contract, and attorney's fees based, evidently, on the provisions of Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (1986). Regarding Leonard's claim for attorney's fees, we find in the record no attempt to comply with the procedure established for their recovery in § 38.002. We hold, therefore, that Leonard did not establish a legal right to attorney's fees. Regarding Leonard's claim for nominal damages, for DUO's technical breach of contract in delivering the skylights too early in light of the job schedule, we find that Leonard waived its claim of error because the record does not contain a finding or request for a finding that DUO failed to deliver the skylights at a reasonable time, a necessary element of Leonard's counterclaim that DUO breached the contract. See Pinnacle Homes v. R. C. L. Offshore Engineering, 640 S.W.2d 629, 630 (Tex. App. 1982, writ ref'd n.r.e.); 4 McDonald, Texas Civil Practice, § 16.09, at 30 (rev. ed. 1984). In order to recover on the contract, Leonard was required to prove affirmatively that DUO's delivery of the goods was unreasonable. At trial, Leonard adduced evidence that the timing of DUO's delivery of the skylights was inconsistent with the industry custom in that regard. The record does not indicate, however, that Leonard requested such a finding, and the trial court found to the contrary. We do not believe that the fact that the trial court found the delivery time to be reasonable somehow relieved Leonard of its burden to seek a finding on unreasonableness, a necessary element of its claim against DUO. We therefore affirm that part of the trial-court judgment which denies Leonard recovery on its counterclaim. John Powers, Justice [Before Justices Powers, Aboussie and Kidd] Affirmed in Part; Reversed and Rendered in Part Filed: June 26, 1991 [Do Not Publish] FOOTNOTES 1 Nor do we believe the following testimony by DUO's employee amounted to any evidence that the timing of the delivery of the skylights was consistent with usage of trade: Q. Are you testifying here today you received approval to send [the skylights]? A. I received approved drawings. Q. Approved drawings, but approval to send material to the job site? A. That's what it means when we get approved drawings. I've checked it over, this is what they need. It has to be there before that scheduled date so that job is not delayed. [sic] Q. That's the way you're interpreting that? A. That's the way that it's done. The foregoing indicates merely that receipt of the contractor's approval of the drawings means that the manufacturer must deliver the goods before the scheduled date. Nothing in the testimony suggests what constitutes an appropriate delivery date if none is fixed expressly. Nor do we find any evidence describing industry custom with respect to the proper delivery date in the following testimony by the same employee: Q. And where--Who manufactured [the skylights]? A. Dawn Products in Colorado. Q. And were [the skylights] shipped to Lubbock, Texas and then on into Angelo State? A. No, they ship directly to job site. Q. From Colorado? A. From Colorado. Q. Now, is this customary in the trade-- A. Yes. The above testimony recites merely that it is customary to ship the goods directly from the place of their manufacture to the job site, but does not address timing of delivery.