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CAUSE NO. 2015 67601
SAGE COMMERCIAL GROUP, LLC IN THE DISTRICT COURT OF
Plaintiff
vs HARRIS COUNTY, TEXAS
215 JUDICIAL DISTRICT
GULF COAST LIMESTONE, INC.
Defendants
SAGE COMMERCIAL GROUP, LLC TRIAL BRIEF
REGARDING DEFENSES OF ABANDONMENT
AND PRIOR MATERIAL BREACH
Plaintiff, Sage Commercial Group, LLC (“Sage”) submits this trial brief
regarding the defenses of abandonment and prior material breach, and in support of
its position would respectfully show the Court as follows:
Background
Defendant Gulf Coast Limestone, Inc. (“Gulf Coast”) plead a number of
affirmative defenses in its Original Answer, including that Sage’s claims are barred
by laches, Sage’s claims are barred because the contract was so vague, indefinite and
uncertain that is unenforceable, and Sage’s claims are ‘barred by [Sage’s]
abandonment of its interest in the alleged contract[.]” See Original Answer at { 9.
Gulf Coast failed to specifically plead the affirmative defense of prior material breach.
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Gulf Coast’s Proposed Jury Charge includes a question regarding prior
material breach, an issue that was never specifically plead as required by Rule 94 of
the Texas Rules of Civil Procedure. Gulf Coast argument that it is entitled to jury
question on prior material breach fails because
abandonment and prior material breach are two separate and
distinct defenses to be plead
prior material breach is an affirmative defense whi h must be
specifically pleaded, and
iii. the Court may only submit jury questions when supported both
by the pleadings and the evidence.
Abandonment Defense Does Not Equate to Prior Material
Breach
Abandonment, as a defense, usually relates to real estate transactions
and oil and gas leases in Texas. In general, abandonment means “the relinquishment
of the possession of a thing by the owner with the intention of terminating his
ownership, but without vesting it in any one else.” Trenolone v. Cook Expl. Co. , 166
S.W.3d 495, 500 (Tex. App.Texarkana 2005, no pet.). “Abandonment is the
relinquishment of a right by the owner with the intention to forsake and desert it.”
Dominey v. Unknown Heirs & Legal Representatives of Lokomski, 172 S.W.3d 67, 73
(Tex. App.Fort Worth 2005, no pe t.) Abandonment does not have the same
meaning in the context of construction contracts.
The Supreme Court of Texas held that a contractor who had abandoned performance of a
construction contract was entitled to have another trial to determine its recovery “... for all
labor performed and material furnished...” after an allowance had been made for all sums
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Notably, Gulf Coast did not plead that Sage breached any contractby
abandonment or otherwise.
Gulf Coast Had to Plead Prior Material Breach as an
Affirmative Defense
“When one party to a contract commits a material breach of that
contract, the other party is discharged or excused from any obligation to
perform.” Davis v. Allstate Ins. Co., 945 S.W.2d 844, 845 46 (Tex. App. ouston [1st
Dist.] 1997, pet. withdrawn); Mustang Pipeline Co. v. Driver Pipeline Co., 134
S.W.3d 195, 196 (Tex. 2004) (per curiam). Thus, the contention that a party to a
contract is excused from performance because of a prior material breach by the other
contracting party is an affirmative defense that must be affirmatively
pleaded. See RE/MAX of Tex., Inc., 961 S.W.2d 324, 327 (Tex. AppHouston [1st
Dist. 1997 no pet.) (citing TEX.R. CIV. P. 94); Compass Bank v. MFP Financial
Services, Inc., 152 S.W.3d 844 (Tex. App. allas 2005) Robbins v. Payne, 55 S.W.3d
740 (Tex. App. marillo 2001). If an affirmative defense is not plead or tried by
consent, it is waived. See Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478,
483 (Tex. App.Houston [1st Dist.] 1993, writ denied). Without a proper pleading
raising [prior material breach] as an affirmative defense, and in the absence of trial
by consent, the issue [is] not properly before the trial court. RE/Max of Tex.,
S.W.2d at 328.
previously paid to the contractor. Manett, Seastrunk & Buckner v. Terminal Bldg. Corp., 120
Tex. 374, 382, 39 S.W.2d 1, 5 (1931).
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Gulf Coast Cannot Have a Jury Question on Prior Material
Breach Without Pleading It
Jury questions must be supported by the pleadings. Gibbins v. Berlin
162 S.W.3d 335, 341 (Tex. App.Fort Worth 2005, no pet.); McReynolds v. First Office
Mgmt., 948 S.W.2d 342, 345 (Tex. App.Dallas 1997, no w_ rit); Webb v. Glenbrook
Owners Ass'n, Inc., 298 S.W.3d 374, 380 (Tex. App.Dallas 2009, no pet.)
Regardless of “[w]hether a granulated or broad form charge is
submitted, the trial court's duty is to submit only those questions, instructions, and
definitions raised by the pleadings and the evidence. (Emphasis added) Certain
Underwriters at Lloyd’s Subscribing to Policy No. WDO 10000 v. KKM, Inc., 215
S.W.3d 486 (Tex. App.Corpus Christi 2006, pet. denied) (citing Harris County v.
Smith, 96 S.W.3d 230, 236 (Tex. 2002); Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.
1992); see also 278).
In evaluating whether a party could put on a prior breach defense,
another Texas Court specifically reasoned:
Appellees did not plead breach of contract on the part of Appellants.
Appellants answered with a general denial... but did not specifically
plead prior breach as a defensive matter (although they did plead breach
of contract by Appellees under their counterclaims). While a general
denial puts into issue all matters pled by the adverse party which are not
required to be denied under oath, Tex. R. Civ. P. 92, it does not raise a
defensive issue of excused performance such as that offered by Appellants
in this case. [Emphasis added]. Tex. Civ. P. 278. Rule 278 ... makes
abundantly clear, in this situation, a party is not entitled to the
submission of a question which was at best raised only by general denial
but not by affirmative pleadings, even though the issue may have been
tried by consent.”Anderson v. Vinson Expl., Inc. , 832 S.W.2d 657, 666
(Tex. App.El Paso 1992, writ denied)(internal citations omitted).
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Pursuant to Rule 278, the Court should not submit Gulf Coast’s jury
question regarding prior material breach because the question is not supported by
the pleadings. Gulf Coast failed to plead Sage breached the contract or prior material
breach.
Respectfully submitted,
ANDREWS MYERS, P.C.
By: /s/ William B. Westcott
WILLIAM B. WESTCOTT
State Bar No. 24028219
Ben.westcott@andrewsmyers.com
KRISTI BELT
State Bar No. 24026798
KBelt@andrewsmyers.com
BRITTANY C. COOPERRIDER
State Bar No. 24087355
BCooperrider@andrewsmyers.com
1885 Saint James Place, 15th Floor
Houston, TX 77056
713 4200 Telephone
713 4211 Fax
ATTORNEYS FOR PLAINTIFF,
SAGE COMMERCIAL GROUP, LLC
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CERTIFICATE OF SERVI
The undersigned hereby certifies that a true and correct copy of the foregoing
instrument has been forwarded to the following counsel of record pursuant to the
Texas Rules of Civil Procedure on the day of ctober, 2018.
Via E ile
Ryan A. Beason
Gulf Coast Limestone, Inc.
1402 Third Street
Seabrook, TX 77586
/s/ Brittany C. Cooperrider
BRITTANY C. COOPERRIDER
2713, v. 2
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CAUSE NO. 2015 67601 SAGE COMMERCIAL GROUP, LLC IN THE DISTRICT COURT OF Plaintiff vs HARRIS COUNTY, TEXAS 215 JUDICIAL DISTRICT GULF COAST LIMESTONE, INC. Defendants SAGE COMMERCIAL GROUP, LLC TRIAL BRIEF REGARDING DEFENSES OF ABANDONMENT AND PRIOR MATERIAL BREACH Plaintiff, Sage Commercial Group, LLC (“Sage”) submits this trial brief regarding the defenses of abandonment and prior material breach, and in support of its position would respectfully show the Court as follows: Background Defendant Gulf Coast Limestone, Inc. (“Gulf Coast”) plead a number of affirmative defenses in its Original Answer, including that Sage’s claims are barred by laches, Sage’s claims are barred because the contract was so vague, indefinite and uncertain that is unenforceable, and Sage’s claims are ‘barred by [Sage’s] abandonment of its interest in the alleged contract[.]” See Original Answer at { 9. Gulf Coast failed to specifically plead the affirmative defense of prior material breach. 2713, v. 2 Gulf Coast’s Proposed Jury Charge includes a question regarding prior material breach, an issue that was never specifically plead as required by Rule 94 of the Texas Rules of Civil Procedure. Gulf Coast argument that it is entitled to jury question on prior material breach fails because abandonment and prior material breach are two separate and distinct defenses to be plead prior material breach is an affirmative defense whi h must be specifically pleaded, and iii. the Court may only submit jury questions when supported both by the pleadings and the evidence. Abandonment Defense Does Not Equate to Prior Material Breach Abandonment, as a defense, usually relates to real estate transactions and oil and gas leases in Texas. In general, abandonment means “the relinquishment of the possession of a thing by the owner with the intention of terminating his ownership, but without vesting it in any one else.” Trenolone v. Cook Expl. Co. , 166 S.W.3d 495, 500 (Tex. App.Texarkana 2005, no pet.). “Abandonment is the relinquishment of a right by the owner with the intention to forsake and desert it.” Dominey v. Unknown Heirs & Legal Representatives of Lokomski, 172 S.W.3d 67, 73 (Tex. App.Fort Worth 2005, no pe t.) Abandonment does not have the same meaning in the context of construction contracts. The Supreme Court of Texas held that a contractor who had abandoned performance of a construction contract was entitled to have another trial to determine its recovery “... for all labor performed and material furnished...” after an allowance had been made for all sums 2713, v. 2 Notably, Gulf Coast did not plead that Sage breached any contractby abandonment or otherwise. Gulf Coast Had to Plead Prior Material Breach as an Affirmative Defense “When one party to a contract commits a material breach of that contract, the other party is discharged or excused from any obligation to perform.” Davis v. Allstate Ins. Co., 945 S.W.2d 844, 845 46 (Tex. App. ouston [1st Dist.] 1997, pet. withdrawn); Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 196 (Tex. 2004) (per curiam). Thus, the contention that a party to a contract is excused from performance because of a prior material breach by the other contracting party is an affirmative defense that must be affirmatively pleaded. See RE/MAX of Tex., Inc., 961 S.W.2d 324, 327 (Tex. AppHouston [1st Dist. 1997 no pet.) (citing TEX.R. CIV. P. 94); Compass Bank v. MFP Financial Services, Inc., 152 S.W.3d 844 (Tex. App. allas 2005) Robbins v. Payne, 55 S.W.3d 740 (Tex. App. marillo 2001). If an affirmative defense is not plead or tried by consent, it is waived. See Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478, 483 (Tex. App.Houston [1st Dist.] 1993, writ denied). Without a proper pleading raising [prior material breach] as an affirmative defense, and in the absence of trial by consent, the issue [is] not properly before the trial court. RE/Max of Tex., S.W.2d at 328. previously paid to the contractor. Manett, Seastrunk & Buckner v. Terminal Bldg. Corp., 120 Tex. 374, 382, 39 S.W.2d 1, 5 (1931). 2713, v. 2 Gulf Coast Cannot Have a Jury Question on Prior Material Breach Without Pleading It Jury questions must be supported by the pleadings. Gibbins v. Berlin 162 S.W.3d 335, 341 (Tex. App.Fort Worth 2005, no pet.); McReynolds v. First Office Mgmt., 948 S.W.2d 342, 345 (Tex. App.Dallas 1997, no w_ rit); Webb v. Glenbrook Owners Ass'n, Inc., 298 S.W.3d 374, 380 (Tex. App.Dallas 2009, no pet.) Regardless of “[w]hether a granulated or broad form charge is submitted, the trial court's duty is to submit only those questions, instructions, and definitions raised by the pleadings and the evidence. (Emphasis added) Certain Underwriters at Lloyd’s Subscribing to Policy No. WDO 10000 v. KKM, Inc., 215 S.W.3d 486 (Tex. App.Corpus Christi 2006, pet. denied) (citing Harris County v. Smith, 96 S.W.3d 230, 236 (Tex. 2002); Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992); see also 278). In evaluating whether a party could put on a prior breach defense, another Texas Court specifically reasoned: Appellees did not plead breach of contract on the part of Appellants. Appellants answered with a general denial... but did not specifically plead prior breach as a defensive matter (although they did plead breach of contract by Appellees under their counterclaims). While a general denial puts into issue all matters pled by the adverse party which are not required to be denied under oath, Tex. R. Civ. P. 92, it does not raise a defensive issue of excused performance such as that offered by Appellants in this case. [Emphasis added]. Tex. Civ. P. 278. Rule 278 ... makes abundantly clear, in this situation, a party is not entitled to the submission of a question which was at best raised only by general denial but not by affirmative pleadings, even though the issue may have been tried by consent.”Anderson v. Vinson Expl., Inc. , 832 S.W.2d 657, 666 (Tex. App.El Paso 1992, writ denied)(internal citations omitted). 2713, v. 2 Pursuant to Rule 278, the Court should not submit Gulf Coast’s jury question regarding prior material breach because the question is not supported by the pleadings. Gulf Coast failed to plead Sage breached the contract or prior material breach. Respectfully submitted, ANDREWS MYERS, P.C. By: /s/ William B. Westcott WILLIAM B. WESTCOTT State Bar No. 24028219 Ben.westcott@andrewsmyers.com KRISTI BELT State Bar No. 24026798 KBelt@andrewsmyers.com BRITTANY C. COOPERRIDER State Bar No. 24087355 BCooperrider@andrewsmyers.com 1885 Saint James Place, 15th Floor Houston, TX 77056 713 4200 Telephone 713 4211 Fax ATTORNEYS FOR PLAINTIFF, SAGE COMMERCIAL GROUP, LLC 2713, v. 2 CERTIFICATE OF SERVI The undersigned hereby certifies that a true and correct copy of the foregoing instrument has been forwarded to the following counsel of record pursuant to the Texas Rules of Civil Procedure on the day of ctober, 2018. Via E ile Ryan A. Beason Gulf Coast Limestone, Inc. 1402 Third Street Seabrook, TX 77586 /s/ Brittany C. Cooperrider BRITTANY C. COOPERRIDER 2713, v. 2