Lanphier Construction Co. v. Fowco Construction Co.

OPINION ON MOTION FOR REHEARING

Appellant Lanphier Construction Company in its motion for rehearing re-asserts that this Court has erred in not disregarding the jury’s answer to Special Issue No. 1 and in not rendering judgment in favor of Lanphier for $30,088.40 instead of affirming the trial court’s judgment for $20,000.00. Lanphier alleged (in its second amended petition) that it was required to pay Heldenfels Brothers the sum of $29,450.00 for redoing certain paving work plus an additional $638.40 for restripping. Lanphier further alleged that such sums were both reasonable and necessary costs of having the work redone. The record clearly shows that there was conflicting testimony as to what the “reasonable charge” for such work was. The trial court submitted the following special issue:

“ISSUE NO. 1
Find from a preponderance of the evidence the reasonable and necessary sum of money, if any, required to be expended by Lanphier Construction Company to correct the defective and unacceptable asphalt paving job performed at the Alice High School by Fowco Construction Company.
Answer in dollars and cents, if any.
Answer: $20,000.00” (Emphasis supplied).

*43The above issue as submitted was not objected to by either Lanphier or any of the other parties. In its amended motion for new trial, Lanphier complains that the submission of Special Issue No. 1 was unnecessary and that plaintiff was entitled to recover the undisputed sum expended in correcting such defective work ($30,088.40) as a matter of law.

For the first time on appeal, Lan-phier asserts that the issue as submitted was wrong, that the actual costs of completion and not the reasonable costs of completion was the proper amount that Lan-phier was entitled to. Lanphier says that this is true because of the contractual relationship between Lanphier and Fowco, citing Page v. Travis-Williamson County Water Control and Improvement District No. 1, 367 S.W.2d 307 (Tex.Sup.1963). Lanphier contends that the Page case does away with the requirement of objecting to an issue as submitted. We do not read the Page case that way. Lanphier, for the first time on appeal, asserts that because of a contractual provision in the contract1 between it and Fowco, Lanphier is entitled to recover the sum of $30,088.40 as a matter of law. Lanphier argues that its recovery should be based on the actual cost expended rather than the reasonable and necessary cost of reworking the job because such contractual provision provides for such. However, Lanphier did not plead this contractual provision nor did it raise any issue with respect thereto. We are not authorized to consider a theory of recovery that was not before the trial court and that the trial court was not called upon to decide. State of California Department of Mental Hygiene v. Bank of Southwest National Association, 163 Tex. 314, 354 S.W.2d 576 (1962); Findley v. Decker, 499 S.W.2d 350 (Tex.Civ.App.—Waco 1973, no writ); Del Rio Bank and Trust Company v. McCarty, 489 S.W.2d 178 (Tex.Civ.App.—San Antonio 1972, no writ).

There is another reason that Lan-phier is bound by such finding of the jury. Lanphier failed to object to the issue as submitted. Where the ground of recovery is submitted, even though it is erroneous, the parties are thereby put upon notice that the jury’s answers to the issues actually submitted will, if supported by the evidence, form the basis of the court’s judgment. It then becomes the duty of each party to point out errors of omission or commission, or be held estopped from thereafter urging them. Allen v. American National Insurance Company, 380 S.W.2d 604 (Tex.Sup.1964); Cox v. Huffman, 159 Tex. 298, 319 S.W.2d 295 (1959).

Lanphier continues its argument and contends that we should disregard Special Issue No. 1 for the reason that such issue is immaterial. We do not agree. An issue is immaterial when (1) it should not have been submitted; or (2) though properly submitted, it has been rendered immaterial by other findings. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.Sup.1966). Stating it another way, if a finding upon the issue claimed to be immaterial could if made, or does as made create a fatal conflict with other findings or otherwise affect the legal significance of the verdict and hence the judgment to be entered, the issue is material and must not be ignored. The issue as submitted does have an effect on the judgment and as such is not immaterial.

We have carefully considered all of the points of error in the motions for rehearing of Lanphier and Servtex Materials, and they are overruled.

. In the event the Subcontractor refuses to man his portion of the work to the satisfaction of the General Contractor, then the General Contractor shall, after notifying the subcontractor of the situation in writing, man the job and back charge the subcontractor for the work. It is agreed that Sub-Contractor shall have forty-eight (48) hours after the receipt of the letter to fulfill his obligations.