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Received and E-Filed for Record
10/12/2015 9:43:08 AM
Barbara Gladden Adamick
~.. ScottPattonp1
District Clerk
Montgomery County, Texas
3939 Washington Avenue, Suite 203 D an Patton
Houston, Texas 77007 Direct (281) 377-3266
Main (28 1) 377-3311 dpatton@scottpatton/auJ. com
Fax (281) 377-3267 Board Certified In Labor & Employment Law
By The Texas Board Of Legal Specialization
October 12, 2015
Via E-File:
Honorable Michael Mayes
501 North Thompson, Suite 401
Conroe, Texas 77301
Re: Cause No. 13-09-09563-CV; TDG General Contractors, Inc. v. Floyd Jackson and Mary
Jmkson; In the 410th Judicial District Court, Montgomery County, Texas
Dear Judge Mayes:
Please accept this as TDG General Contractors, Inc. ("Plaintiff')'s reply to Defendants'
Response to Plaintiffs Amended Motion for Final Judgment.
In their response, Defendants' contend that Plaintiffs Final Judgment is erroneous as to Jury
Question No. 8 and Jury Question No. 10 for reasons that are unintelligible. Conspicuously absent
from Defendants' response is the fact that (1) these two questions and their predicates are straight
from the Pattern Jury Charge; 1and (2) Defendants' counsel never objected to the submission of
either question during the jury charge conference.
As is clear from the completed Jury Charge, Question No. 8 was Plaintiffs quantum Meruit
claim and Question No. 10 concerned Plaintiffs Promissory Estoppel claim. These were alternative
theories of recovery and the jury's findings on one claim is independent of the other.
Defendant's request for sanctions is absurd. Defendants' argument does not even make
sense, nor is it supported by any legal authority. In addition, an insinuation that it took counsel
$4,500.00 to draft a page and half response is laughable. Counsel alleged at trial it took her $15,000
to represent her client throughout this entire case, including trial.
Plaintiff respectfully requests this Court sign its Final Judgment.
1 See Pattern Jury Charge Questions for theories o f Quantum Mernit and Promissory Estoppel attached as Exhibit
"A."
Should the Court require any additional information to render Final Judgment, please feel
free to contact me at your convenience.
Sincerely,
SCOTT PATTON PC
G~ ___.,/
Daniel Patton
cc: Via Email & Facsimile: 866454-1124
Sherry D. Tavel
23010 Gabriel Drive, Suite 109
New Caney, Texas 77357
PJC 101.42 CONTRACTS
PJC 101.42 Question and Instruction on Quantum Meruit
QUESTION _ _
Did Paul Payne perform compensable work for Don Davis?
One party performs compensable work if valuable services are ren-
dered or materials furnished for another party who knowingly accepts
and uses them and if the party accepting them should know that the
performing party expects to be paid for the work.
Answer "Yes" or "No."
Answer: - - - - - - - -
COMMENT
When to use. If one party receives a benefit by accepting the services of another,
the accepting party isobligated by principles of equity to pay the reasonable value of
those services. Colbert v. Dallas Joint Stock Land Bank, 150 S.W.2d 771, 773 (Tex.
1941 ). The elements of a quantum meruit claim are set out in Bashara v. Baptist Memo-
rial Hospital System, 685 S.W.2d 307, 310 (Tex. 1985). If a valid express contract cover-
ing the subject matter exists, recovery on quantum meruit generally is not allowed under
Texas law. Truly v. Austin, 744 S.W.2d 934, 936 (Tex. 1988); see also Woodard v. South-
west States, Inc., 384 S.W.2d 674, 675 (Tex. 1964). Recovery in quantum meruit is
allowed for partial perfmmance of a contract if (1) the defendant's breach prevents the
plaintiff's completion, (2) the contract is unilateral and requires no performance by the
plaintiff, or (3) the contract involves building or construction. Truly, 744 S.W.2d at 936-
37. See PJC 115 .6 for a question on quantum meruit recovery.
Construction contracts. The existence of an express contract does not, however,
preclude recovery in quantum mernit for the reasonable value of work performed and
accepted but not covered by the contract. Black Lake Pipe Line Co. v. Union Construc-
tion Co., 538 S.W.2d 80, 86 (Tex. 1976), overruled on other grounds by Sterner v. Mara-
thon Oil Co., 767 S.W.2d 686 (Tex. 1989). The right to recover in quantum meruit is
based on a promise "implied by law to pay for beneficial services rendered and know-
ingly accepted." Davidson v. Clearman, 391S.W.2d48, 50 (Tex. 1965).
A building contractor who has not substantially perfo1med his contract may have ;-.
quantum meruit as an alternate ground of recovery. Dobbins v. Redden, 785 S.W.2d 377
(Tex. 1990); Truly, 744 S.W.2d at 937 ; see also Beeman v. Worrell, 612 S.W.2d 953 , 956
(Tex. Civ. App. -Dallas 1981 , no writ); Coon v. Schoeneman, 476 S.W.2d 439, 442--43
(Tex. Civ. App.- Dallas 1972, writ ref'd n.r.e.). For further discussion on constrnction
contracts, see PJC 101.46.
EXHIBIT
66 ., A,,
CONTRACTS
PJC 101.42
Construction contract and quantum meruit issues may be submitted in the same
charge. See City of Galveston v. Heffernan, 155 S.W.2d 912 (Tex. 1941) (dispute con-
cerned both subject matter of express contract and additional work done outside confines
of contract); see also Chapa v. Reilly, 733 S.W.2d 236, 237 (Tex. App.-Corpus Christi
1986, writ ref'd n.r.e.).
[PJC 101.43-.45 are reserved for expansion.]
DAMAGES DAMAGES
PJC 115.6
tlly recom- PJC 115.6 Question on Quantum Meruit Recovery
ury. Harris
m ofmulti-
[Insert predicate, P JC 115.1.]
tion raising
d); see also QUESTION _ _
eeks recov-
11ages sepa- What is the reasonable value of such compensable work at the time and place
10mic from it was performed?
recovery of Answer in dollars and cents, if any.
red by Tex.
Answer: - - - - - - -
n award of
ry, or prop-
'nergy, Inc., COMMENT
1terest with
~, 931 (Tex. When to use. PJC 115 .6 submits the measure of recovery for quantum meruit. Col-
irking, Inc., bert v. Dallas Joint Stock Land Bank, 150 S.W.2d 771, 776 (Tex. 1941) (ultimate ques-
ter types of tion is reasonable value of work performed); see, e.g., Texas Delta Upsilon Foundation v.
Fehr, 307 S.W.2d 124, 127 (Tex. Civ. App.-Austin 1957, writ ref'd n.r.e.); Blalack v.
Johnson, 293 S. W.2d 811, 813 (Tex. Civ. App.-Texarkana 1956, no writ) Uury ques-
ckson, 116
tions in these cases quoted with approval). The question must be predicated on an affir-
ndefined or
mative finding that the work is compensable under this theory. See PJC 101.42.
1g language
other.
;: oth-
)r the
my.
ted because
ne of judg-
;,it may be
283
ONTRACTS CONTRACTS PJC 101.41
PJC 101.41 Question on Promissory Estoppel
I memory QUESTION _ _
;she was
Did Paul Payne substantially rely to his detriment on Don Davis's promise, if
any, and was this reliance foreseeable by Don Davis?
Answer "Yes" or "No."
Answer: - - - - - - -
of lack of
n affirma-
COMMENT
ht v.Tho- When to use. The doctrine of promissory estoppel may be invoked as a cause of
573, 675- action. It is appropriate if a promisee has acted to his detriment in reasonable reliance on
an otherwise unenforceable promise. The theory supplies a remedy enabling an injured
party to be compensated for "foreseeable, definite and substantial reliance." Wheeler v.
w lack of White, 398 S.W.2d 93, 96-97 (Tex. 1965).
Source of question. Wheeler, 398 S.W.2d at 96-97; see also English v. Fischer, 660
S.W.2d 521, 524 (Tex. 1983) (requisites of promissory estoppel are "(1) a promise, (2)
foreseeability of reliance thereon by the promisor, and (3) substantial reliance by the
promisee to his detriment"); Restatement (Second) of Contracts§ 90 (1981).
Limited remedy. Recovery under the doctrine of promissory estoppel is limited to
restoring the promisee to the position he would have been in had he not acted in reliance
on the promise. See PJC 115.5. Lost profits may not be recovered. Fretz Construction
Co. v. Southern National Bank, 626 S.W.2d 478, 483 (Tex. 1981).
Exception to statute of frauds. A more limited application of this doctrine has
been used as an exception to the statute of frauds. See "Moore" Burger, Inc. v. Phillips
Petroleum Co., 492 S.W.2d 934, 937-40 (Tex. 1972). PJC 101.41 is not intended to
cover such situations.
65
DAMAGES PJC 115.5
PJC 115.5 Question on Promissory Estoppel-Reliance Damages
'Jon [Insert predicate, P JC 115.1.}
QUESTION _ _
~on-
What sum of money, if any, if paid now in cash, would fairly and reasonably
compensate Paul Payne for his damages, if any, that resulted from his reliance on
Don Davis's promise?
Consider the following elements of damages, if any, and none other.
lsed [Insert appropriate instructions.]
law,
921 Do not add any amount for interest on damages, if any.
Answer separately in dollars and cents for damages, if any.
the
d v. a. [Element A] sustained in the past.
e to Answer: - - - - - - -
ctly
cen- b. [Element A] that, in reasonable probability, will be sustained in the
ient future.
Answer: - - - - - - -
~tif
the c. [Element B] sustained in the past.
See
Answer: - - - - - - -
710
loss
d. [Element B] that, in reasonable probability, will be sustained in the
ct).
future.
rely
Answer: - - - - - - -
t be
1ge-
ient
115 COMMENT
hat,
ven When to use. PJC 115.5 and appropriate instructions tailored to the specific reli-
ance damages alleged by the plaintiff should be submitted following the liability ques-
tion for promissory estoppel. See P JC 101.41.
)de,
es). Reliance damages only. In a claim based on promissory estoppel, the plaintiff is
not entitled to recover expectancy damages or to receive the full benefit of the bargain.
Only reliance damages are allowed. Fretz Construction Co. v.Southern National Bank,
626 S.W.2d 478, 483 (Tex. 1981); Wheeler v. White, 398 S.W.2d 93, 96-97 (Tex. 1965).
281
PJC 115.5 DAMAGES
Elements of damages submitted separately. The Committee generally recom-
mends that multiple elements of damages be separately submitted to the jury. Harris
County v. Smith, 96 S.W.3d 230, 233-34 (Tex. 2002) (broad-form submission of multi-
ple elements of damages may lead to harmful error if there is a proper objection raising
insufficiency of the evidence to support one or more of the elements submitted); see also
Tex. Civ. Prac. & Rem. Code§ 41.008(a) ("In an action in which a claimant seeks recov-
ery of damages, the trier of fact shall determine the amount of economic damages sepa-
rately from the amount of other compensatory damages."). Separating economic from
noneconomic damages is required to allow the court to apply the limits on recovery of
exemplary damages based on economic and noneconomic damages as required by Tex.
Civ. Prac. & Rem. Code§ 41.008(b).
Further, "[p ]rejudgment interest may not be assessed or recovered on an award of
future damages." Tex. Fin. Code § 304.1045 (wrongful death, personal injury, or prop-
erty damage cases); see also Johnson & Higgins of Texas, Inc. v.Kenneco Energy, Inc.,
962 S.W.2d 507, 514, 530 (Tex. 1998) (reconciling equitable prejudgment interest with
statutory prejudgment interest); Perry Roofing Co. v.Oleo~!, 744 S.W.2d 929, 931 (Tex.
1988) (unliquidated damages in contract cases); Cavnar v. Quality Control Parking, Inc.,
696 S.W.2d 549, 555-56 (Tex. 1985) (personal injury, later extended to other types of
cases). Therefore, separation of past and future damages is required.
Elements considered separately. Golden Eagle. Archery, Inc. v. Jackson, 116
S.W.3d 757, 770 (Tex. 2002), provides an instruction for cases involving undefined or
potentially overlapping categories of damages. In those cases, the following language
should be substituted for the instruction to consider each element separately:
Consider the following elements of damages, if any, and none other.
You shall not award any sum of money on any element if you have oth-
erwise, under some other element, awarded a sum of money for the
same loss. That is, do not compensate twice for the same loss, if any.
Prejudgment interest. Instructing the jury not to add interest is suggested because
prejudgment interest, if recoverable, will be calculated by the court at the time of judg-
ment. If interest paid on an obligation is claimed as an element of damages, it may be
necessary to modify the instruction on interest.
282
Preview
Received and E-Filed for Record 10/12/2015 9:43:08 AM Barbara Gladden Adamick ~.. ScottPattonp1 District Clerk Montgomery County, Texas 3939 Washington Avenue, Suite 203 D an Patton Houston, Texas 77007 Direct (281) 377-3266 Main (28 1) 377-3311 dpatton@scottpatton/auJ. com Fax (281) 377-3267 Board Certified In Labor & Employment Law By The Texas Board Of Legal Specialization October 12, 2015 Via E-File: Honorable Michael Mayes 501 North Thompson, Suite 401 Conroe, Texas 77301 Re: Cause No. 13-09-09563-CV; TDG General Contractors, Inc. v. Floyd Jackson and Mary Jmkson; In the 410th Judicial District Court, Montgomery County, Texas Dear Judge Mayes: Please accept this as TDG General Contractors, Inc. ("Plaintiff')'s reply to Defendants' Response to Plaintiffs Amended Motion for Final Judgment. In their response, Defendants' contend that Plaintiffs Final Judgment is erroneous as to Jury Question No. 8 and Jury Question No. 10 for reasons that are unintelligible. Conspicuously absent from Defendants' response is the fact that (1) these two questions and their predicates are straight from the Pattern Jury Charge; 1and (2) Defendants' counsel never objected to the submission of either question during the jury charge conference. As is clear from the completed Jury Charge, Question No. 8 was Plaintiffs quantum Meruit claim and Question No. 10 concerned Plaintiffs Promissory Estoppel claim. These were alternative theories of recovery and the jury's findings on one claim is independent of the other. Defendant's request for sanctions is absurd. Defendants' argument does not even make sense, nor is it supported by any legal authority. In addition, an insinuation that it took counsel $4,500.00 to draft a page and half response is laughable. Counsel alleged at trial it took her $15,000 to represent her client throughout this entire case, including trial. Plaintiff respectfully requests this Court sign its Final Judgment. 1 See Pattern Jury Charge Questions for theories o f Quantum Mernit and Promissory Estoppel attached as Exhibit "A." Should the Court require any additional information to render Final Judgment, please feel free to contact me at your convenience. Sincerely, SCOTT PATTON PC G~ ___.,/ Daniel Patton cc: Via Email & Facsimile: 866454-1124 Sherry D. Tavel 23010 Gabriel Drive, Suite 109 New Caney, Texas 77357 PJC 101.42 CONTRACTS PJC 101.42 Question and Instruction on Quantum Meruit QUESTION _ _ Did Paul Payne perform compensable work for Don Davis? One party performs compensable work if valuable services are ren- dered or materials furnished for another party who knowingly accepts and uses them and if the party accepting them should know that the performing party expects to be paid for the work. Answer "Yes" or "No." Answer: - - - - - - - - COMMENT When to use. If one party receives a benefit by accepting the services of another, the accepting party isobligated by principles of equity to pay the reasonable value of those services. Colbert v. Dallas Joint Stock Land Bank, 150 S.W.2d 771, 773 (Tex. 1941 ). The elements of a quantum meruit claim are set out in Bashara v. Baptist Memo- rial Hospital System, 685 S.W.2d 307, 310 (Tex. 1985). If a valid express contract cover- ing the subject matter exists, recovery on quantum meruit generally is not allowed under Texas law. Truly v. Austin, 744 S.W.2d 934, 936 (Tex. 1988); see also Woodard v. South- west States, Inc., 384 S.W.2d 674, 675 (Tex. 1964). Recovery in quantum meruit is allowed for partial perfmmance of a contract if (1) the defendant's breach prevents the plaintiff's completion, (2) the contract is unilateral and requires no performance by the plaintiff, or (3) the contract involves building or construction. Truly, 744 S.W.2d at 936- 37. See PJC 115 .6 for a question on quantum meruit recovery. Construction contracts. The existence of an express contract does not, however, preclude recovery in quantum mernit for the reasonable value of work performed and accepted but not covered by the contract. Black Lake Pipe Line Co. v. Union Construc- tion Co., 538 S.W.2d 80, 86 (Tex. 1976), overruled on other grounds by Sterner v. Mara- thon Oil Co., 767 S.W.2d 686 (Tex. 1989). The right to recover in quantum meruit is based on a promise "implied by law to pay for beneficial services rendered and know- ingly accepted." Davidson v. Clearman, 391S.W.2d48, 50 (Tex. 1965). A building contractor who has not substantially perfo1med his contract may have ;-. quantum meruit as an alternate ground of recovery. Dobbins v. Redden, 785 S.W.2d 377 (Tex. 1990); Truly, 744 S.W.2d at 937 ; see also Beeman v. Worrell, 612 S.W.2d 953 , 956 (Tex. Civ. App. -Dallas 1981 , no writ); Coon v. Schoeneman, 476 S.W.2d 439, 442--43 (Tex. Civ. App.- Dallas 1972, writ ref'd n.r.e.). For further discussion on constrnction contracts, see PJC 101.46. EXHIBIT 66 ., A,, CONTRACTS PJC 101.42 Construction contract and quantum meruit issues may be submitted in the same charge. See City of Galveston v. Heffernan, 155 S.W.2d 912 (Tex. 1941) (dispute con- cerned both subject matter of express contract and additional work done outside confines of contract); see also Chapa v. Reilly, 733 S.W.2d 236, 237 (Tex. App.-Corpus Christi 1986, writ ref'd n.r.e.). [PJC 101.43-.45 are reserved for expansion.] DAMAGES DAMAGES PJC 115.6 tlly recom- PJC 115.6 Question on Quantum Meruit Recovery ury. Harris m ofmulti- [Insert predicate, P JC 115.1.] tion raising d); see also QUESTION _ _ eeks recov- 11ages sepa- What is the reasonable value of such compensable work at the time and place 10mic from it was performed? recovery of Answer in dollars and cents, if any. red by Tex. Answer: - - - - - - - n award of ry, or prop- 'nergy, Inc., COMMENT 1terest with ~, 931 (Tex. When to use. PJC 115 .6 submits the measure of recovery for quantum meruit. Col- irking, Inc., bert v. Dallas Joint Stock Land Bank, 150 S.W.2d 771, 776 (Tex. 1941) (ultimate ques- ter types of tion is reasonable value of work performed); see, e.g., Texas Delta Upsilon Foundation v. Fehr, 307 S.W.2d 124, 127 (Tex. Civ. App.-Austin 1957, writ ref'd n.r.e.); Blalack v. Johnson, 293 S. W.2d 811, 813 (Tex. Civ. App.-Texarkana 1956, no writ) Uury ques- ckson, 116 tions in these cases quoted with approval). The question must be predicated on an affir- ndefined or mative finding that the work is compensable under this theory. See PJC 101.42. 1g language other. ;: oth- )r the my. ted because ne of judg- ;,it may be 283 ONTRACTS CONTRACTS PJC 101.41 PJC 101.41 Question on Promissory Estoppel I memory QUESTION _ _ ;she was Did Paul Payne substantially rely to his detriment on Don Davis's promise, if any, and was this reliance foreseeable by Don Davis? Answer "Yes" or "No." Answer: - - - - - - - of lack of n affirma- COMMENT ht v.Tho- When to use. The doctrine of promissory estoppel may be invoked as a cause of 573, 675- action. It is appropriate if a promisee has acted to his detriment in reasonable reliance on an otherwise unenforceable promise. The theory supplies a remedy enabling an injured party to be compensated for "foreseeable, definite and substantial reliance." Wheeler v. w lack of White, 398 S.W.2d 93, 96-97 (Tex. 1965). Source of question. Wheeler, 398 S.W.2d at 96-97; see also English v. Fischer, 660 S.W.2d 521, 524 (Tex. 1983) (requisites of promissory estoppel are "(1) a promise, (2) foreseeability of reliance thereon by the promisor, and (3) substantial reliance by the promisee to his detriment"); Restatement (Second) of Contracts§ 90 (1981). Limited remedy. Recovery under the doctrine of promissory estoppel is limited to restoring the promisee to the position he would have been in had he not acted in reliance on the promise. See PJC 115.5. Lost profits may not be recovered. Fretz Construction Co. v. Southern National Bank, 626 S.W.2d 478, 483 (Tex. 1981). Exception to statute of frauds. A more limited application of this doctrine has been used as an exception to the statute of frauds. See "Moore" Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 937-40 (Tex. 1972). PJC 101.41 is not intended to cover such situations. 65 DAMAGES PJC 115.5 PJC 115.5 Question on Promissory Estoppel-Reliance Damages 'Jon [Insert predicate, P JC 115.1.} QUESTION _ _ ~on- What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Paul Payne for his damages, if any, that resulted from his reliance on Don Davis's promise? Consider the following elements of damages, if any, and none other. lsed [Insert appropriate instructions.] law, 921 Do not add any amount for interest on damages, if any. Answer separately in dollars and cents for damages, if any. the d v. a. [Element A] sustained in the past. e to Answer: - - - - - - - ctly cen- b. [Element A] that, in reasonable probability, will be sustained in the ient future. Answer: - - - - - - - ~tif the c. [Element B] sustained in the past. See Answer: - - - - - - - 710 loss d. [Element B] that, in reasonable probability, will be sustained in the ct). future. rely Answer: - - - - - - - t be 1ge- ient 115 COMMENT hat, ven When to use. PJC 115.5 and appropriate instructions tailored to the specific reli- ance damages alleged by the plaintiff should be submitted following the liability ques- tion for promissory estoppel. See P JC 101.41. )de, es). Reliance damages only. In a claim based on promissory estoppel, the plaintiff is not entitled to recover expectancy damages or to receive the full benefit of the bargain. Only reliance damages are allowed. Fretz Construction Co. v.Southern National Bank, 626 S.W.2d 478, 483 (Tex. 1981); Wheeler v. White, 398 S.W.2d 93, 96-97 (Tex. 1965). 281 PJC 115.5 DAMAGES Elements of damages submitted separately. The Committee generally recom- mends that multiple elements of damages be separately submitted to the jury. Harris County v. Smith, 96 S.W.3d 230, 233-34 (Tex. 2002) (broad-form submission of multi- ple elements of damages may lead to harmful error if there is a proper objection raising insufficiency of the evidence to support one or more of the elements submitted); see also Tex. Civ. Prac. & Rem. Code§ 41.008(a) ("In an action in which a claimant seeks recov- ery of damages, the trier of fact shall determine the amount of economic damages sepa- rately from the amount of other compensatory damages."). Separating economic from noneconomic damages is required to allow the court to apply the limits on recovery of exemplary damages based on economic and noneconomic damages as required by Tex. Civ. Prac. & Rem. Code§ 41.008(b). Further, "[p ]rejudgment interest may not be assessed or recovered on an award of future damages." Tex. Fin. Code § 304.1045 (wrongful death, personal injury, or prop- erty damage cases); see also Johnson & Higgins of Texas, Inc. v.Kenneco Energy, Inc., 962 S.W.2d 507, 514, 530 (Tex. 1998) (reconciling equitable prejudgment interest with statutory prejudgment interest); Perry Roofing Co. v.Oleo~!, 744 S.W.2d 929, 931 (Tex. 1988) (unliquidated damages in contract cases); Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 555-56 (Tex. 1985) (personal injury, later extended to other types of cases). Therefore, separation of past and future damages is required. Elements considered separately. Golden Eagle. Archery, Inc. v. Jackson, 116 S.W.3d 757, 770 (Tex. 2002), provides an instruction for cases involving undefined or potentially overlapping categories of damages. In those cases, the following language should be substituted for the instruction to consider each element separately: Consider the following elements of damages, if any, and none other. You shall not award any sum of money on any element if you have oth- erwise, under some other element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any. Prejudgment interest. Instructing the jury not to add interest is suggested because prejudgment interest, if recoverable, will be calculated by the court at the time of judg- ment. If interest paid on an obligation is claimed as an element of damages, it may be necessary to modify the instruction on interest. 282