Alamo Community College District v. Browning Construction Company

No. 04-02-00808-CV

131 S.W.3d 146 (2004) | Cited 22 times | Court of Appeals of Texas | January 14, 2004

OPINION

AFFIRMED

This case arises from a breach-of-contract suit between Browning Construction Company ("Browning") and Alamo College Community District ("ACCD"). At trial, the jury awarded Browning, the plaintiff, over $3,000,000 on its breach-of-contract claim. The trial court entered judgment in accordance with the verdict. ACCD, the defendant at trial, appeals the judgment of the trial court in fourteen issues. Browning, appellee and cross-appellant, brings one issue on appeal. We affirm the judgment of the trial court.

Background

ACCD and Browning entered into a contract whereby Browning agreed to serve as the general contractor for the construction of a new campus for ACCD. After disagreements over delay, Browning sued ACCD for breach of contract and won damages of over $3,000,000. The key issue in the suit was whether Browning could collect damages for delay when the contract had a no-damages-for-delay clause. The jury answered yes, because 1) ACCD had waived its right to rely on that clause; 2) ACCD is estopped from relying on that clause; 3) ACCD and Browning had agreed to modify the clause; 4) the delays encountered by Browning were caused by the active interference of ACCD; 5) ACCD committed unreasonable delay such that Browning would have been justified in abandoning the contract; and 6) ACCD committed fraud, misrepresentation, or other bad faith. Browning also sued ACCD for violations of the Prompt Pay Act and quantum meruit. The jury did not find for Browning on these causes of action.

ACCD, appellant and cross-appellee, presents the following issues for review:

1) Does sovereign immunity protect ACCD from suit? Does sovereign immunity protect ACCD from tort liability?

2) Did ACCD have a duty to Browning for design errors?

3) Was it proper for the trial court to instruct the jury that the architects were agents of ACCD?

4) Was it error for the trial court to permit the jury to assess damages for Browning's liability to its subcontractors?

5) Does Jury Question 5 submit an offensive theory of estoppel, and if so, was it error for the trial court to submit it?

6) Was it error for the trial court to omit from Jury Question 1 an instruction on the specific contractual provisions at issue? Does Jury Question 1(b) violate Casteel?

7) Did the trial court submit an improper measure of damages?

8) Was there legally and factually sufficient evidence of causation to support a finding of damages for delay?

9) Was there legally and factually sufficient evidence of consideration to support the jury's finding that ACCD and Browning agreed to modify the contract?

10) Was there legally and factually sufficient evidence of design error?

11) Did the trial court abuse its discretion in denying ACCD's motion for new trial?

12) Was there legally and factually sufficient evidence to support the jury's finding that ACCD waived its right to rely on the no-damages-for-delay clause as a defense to Browning's claims?

13) Was there legally and factually sufficient evidence to support the jury's finding that ACCD breached the contract?

14) Was there legally and factually sufficient evidence to support the jury's finding of overhead cost damages?

Browning, appellee and cross-appellant, presents the following issue for review: Did the trial court err in failing to render judgment notwithstanding the verdict for Browning on its Prompt Pay Act claim?

Sovereign Immunity

A. Immunity from Suit

In its first issue, ACCD argues that sovereign immunity protects it from suit.

Sovereign immunity defeats a trial court's subject-matter jurisdiction over a lawsuit. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638-39 (Tex. 1999) (per curiam). The State may assert sovereign immunity from suit in a plea to the jurisdiction. Id. at 638. Because the question of subject-matter jurisdiction is a question of law, we review de novo a trial court's order denying a jurisdictional plea based on sovereign immunity. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

ACCD argues that sovereign immunity protects it from suit. We have specifically held, however, that junior college community districts like ACCD are not immune from suit:

ACCD is a junior college community district organized pursuant to chapter 130 of the Texas Education Code. Under chapter 130, ACCD's board of trustees' "powers and duties" "in the . . . management and control of the junior college" are governed by "the general law governing the . . . management and control of independent school districts insofar as the general law is applicable." Part of the "general law" governing the management and control of independent school districts is the Texas Legislature's consent to suits against "[t]he trustees of an independent school district . . . in the name of the district . . . ."

. . . By subjecting junior college districts like ACCD to the same general law applicable to independent school districts, it appears to us, clearly and unambiguously, the Texas Legislature granted its consent to sue junior college community districts and we so hold.

Alamo Cmty. Coll. Dist. v. Obayashi Corp., 980 S.W.2d 745, 747-48 (Tex. App.CSan Antonio 1998, pet. denied) (citations omitted), abrogated on other grounds by Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 595-98 (Tex. 2001).

In Obayashi, we followed the supreme court's holding in Missouri Pacific Railroad Co. v. Brownsville Navigation District, 453 S.W.2d 812 (Tex. 1970). See Obayashi, 980 S.W.2d at 748 (citing Mo. Pac., 453 S.W.2d at 813). In Missouri Pacific, the question was whether a 1925 statute clearly and unambiguously waived Brownsville Navigation District's immunity from suit. Mo. Pac., 453 S.W.2d at 813. The statute provided: "All navigation districts established under this Act may, by and through the navigation and canal commissioners, sue and be sued in all courts of this State in the name of such navigation district . . . ." Id. (emphasis added). The court held: "In our opinion [the statute] is quite plain and gives general consent for District to be sued in the courts of Texas in the same manner as other defendants." Id.

Similarly, the statute we relied on in Obayashi provides: "The trustees of an independent school district constitute a body corporate and in the name of the district may acquire and hold real and personal property, sue and be sued, and receive bequests and donations or other moneys or funds coming legally into their hands." Tex. Educ. Code Ann. § 11.151(a) (Vernon 1996) (emphasis added). Thus, both Obayashi and Missouri Pacific find a waiver of sovereign immunity where the Legislature provides that the governmental entity may "sue and be sued." Mo. Pac., 453 S.W.2d at 813; Obayashi, 980 S.W.2d at 748.

ACCD argues that two recent Texas Supreme Court cases, Texas Natural Resource Conservation Commission v. IT-Davy, 74 S.W.3d 849 (Tex. 2002) and Travis County v. Pelzel & Associates, Inc., 77 S.W.3d 246 (Tex. 2002), suggest that community college districts like ACCD are immune from suit. We disagree.

In IT-Davy, a general contractor (IT-Davy) contracted with the Texas Water Commission (predecessor of the Texas Natural Resource Conservation Commission) to clean up a hazardous waste site in Houston. IT-Davy, 74 S.W.3d at 851. IT-Davy cleaned the site, and the TNRCC paid IT-Davy the full contract price. Id. IT-Davy claimed, however, that it was owed additional monies under the contract because materially different site conditions increased its clean‑up costs. Id. The TNRCC refused to pay these additional costs, and IT-Davy brought suit against the TNRCC for breach of contract, negligent misrepresentation, quantum meruit, and promissory estoppel. Id. at 851-52. In response, the TNRCC filed a plea to the jurisdiction, alleging that sovereign immunity barred IT-Davy's claims. Id. at 852. The trial court denied the plea. Id. The TNRCC then filed an interlocutory appeal. Id. The court of appeals affirmed the trial court's order, holding that IT‑Davy's allegations were "sufficient to show that the [TNRCC] has engaged in conduct, beyond the mere execution of a contract, that waives its immunity from suit." IT-Davy, 74 S.W.3d at 851 (citation omitted) (brackets in original).

At the supreme court, IT‑Davy argued that the TNRCC waived its immunity from suit by fully accepting benefits under the contract. Id. at 856. In support of its argument, IT-Davy cited a footnote from Federal Sign v. Texas Southern University, 951 S.W.2d 401 (Tex. 1997), providing that there may be circumstances "where the State may waive its immunity by conduct other than simply executing a contract . . . ." See IT-Davy, 74 S.W.3d at 856 (quoting Federal Sign, 951 S.W.2d at 408 n.1). Thus, the issue for the supreme court in IT-Davy was whether Texas law allows governmental entities to waive their immunity by conduct. See id. (noting that several courts of appeals have relied on the footnote in Federal Sign to create a judicially-imposed, equitable waiver of immunity from suit). The court held:

We again affirm that it is the Legislature's sole province to waive or abrogate sovereign immunity. . . . Because we have consistently held that only the Legislature can waive sovereign immunity from suit, allowing other governmental entities to waive immunity by conduct that includes accepting benefits under a contract would be fundamentally inconsistent with our established jurisprudence and with the existing legislative scheme. Accordingly, we reject IT-Davy's argument that we should fashion such a waiver-by-conduct exception in a breach-of-contract suit against the State.

Id. at 857 (emphasis added).

The court also found that the TNRCC's sovereign immunity was not waived by contract, legislative consent under sections 5.351 and 5.352 of the Texas Water Code, or legislative consent in the Declaratory Judgment Act. Id. at 856.

In the case before us, Browning does not argue that ACCD waived its immunity by conduct. Accordingly, the waiver-by-conduct holding of IT-Davy does not apply here. Additionally, nowhere does the IT-Davy court address sovereign immunity for community college districts under the Texas Education Code, the issue in this case. Rather, IT-Davy reaffirms that it is the Legislature's sole province to waive sovereign immunity. Id. at 857. We found in Obayashi that the Legislature waived sovereign immunity for community college districts by enacting sections 130.084 and 11.151(a) of the Texas Education Code. Obayashi, 980 S.W.2d at 747-48. Accordingly, with respect to waiver by statute, Obayashi and IT-Davy are entirely consistent.

ACCD next argues that the Pelzel case suggests that community college districts like ACCD are immune from suit. In Pelzel, a construction company (Pelzel) sued Travis County for breach of contract, seeking monies allegedly due under the contract. Pelzel, 77 S.W.3d at 247. Travis County filed a plea to the jurisdiction, alleging sovereign immunity. Id. The trial court denied the plea. Id. Travis County brought an interlocutory appeal, and the court of appeals affirmed the trial court's order, concluding that Travis County waived its immunity by conduct. Id. at 247-48. The court of appeals further concluded that because Pelzel complied with section 89.004 of the Texas Local Government Code by presenting its claim to the county commissioners court before filing suit, the trial court had jurisdiction. Id. at 247 (citation omitted). Section 89.004 provides: "[A] person may not file suit on a claim against a county . . . unless the person has presented the claim to the commissioners court and the commissioners court neglects or refuses to pay all or part of the claim. . . ." Tex. Loc. Gov't Code Ann. § 89.004(a) (Vernon Supp. 2003). Thus, the issue for the supreme court in Pelzel was whether the presentment-of-claim language in section 89.004 clearly and unambiguously waives Travis County's immunity from suit. The court held: "This statutory language does not clearly and unambiguously waive immunity from suit." Pelzel, 77 S.W.3d at 249. The court goes on to cite statutes that do clearly and unambiguously waive immunity from suit. See id. (citing, as an example of a clear and unambiguous waiver of suit, section 101.025(a) of the Texas Civil Practices and Remedies Code, which provides that "[s]overeign immunity to suit is waived and abolished to the extent of liability created by this chapter"). The court also distinguishes section 89.004(a) from the statute preceding it, stating: "Originally, the statute contained >sue and be sued' language, arguably showing intent to waive sovereign immunity for suits against counties." Id. at 249-50 (citing Mo. Pac., 453 S.W.2d at 813).

ACCD relies on this language to support its argument that ACCD is immune from suit. As shown by the direct quote above, however, Pelzel does not resolve the question whether "sue and be sued" language waives sovereign immunity. Id. Nor does Pelzel overrule Missouri Pacific. Id. We are bound by the authority of Missouri Pacific unless the supreme court overrules it. Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993); In re K. S., 76 S.W.3d 36, 49 (Tex. App.CAmarillo 2002, no pet.). Accordingly, we must continue to follow Missouri Pacific.

We recognize that the Fifth Court of Appeals has interpreted IT-Davy and Pelzel to mean that the Legislature did not intend to waive sovereign immunity for school districts. See Satterfield & Pontikes Constr., Inc. v. Irving Indep. Sch. Dist., No. 05‑03‑00004‑CV, 2003 WL 22221024, at *2 (Tex. App.CDallas Sept. 26, 2003, no pet. h.) (holding that the "sue and be sued" language in section 11.151 of the Texas Education Code merely speaks to the City's capacity to sue and its capacity to be sued when immunity has been waived). The effect of the court's decision, however, is to improperly overrule Missouri Pacific. Satterfield, 2003 WL 22221024, at *17 (Lang, J., dissenting).We believe that we are bound by Missouri Pacific unless the supreme court overrules it. Therefore, we reiterate our holding in Obayashi and hold that because the Legislature clearly and unambiguously waived immunity for community college districts, ACCD is not immune from suit. Obayashi, 980 S.W.2d at 748. Accordingly, we overrule this issue on appeal.

B. Immunity from Liability

ACCD next argues that sovereign immunity protects it from liability.

Immunity from liability protects the state from judgment, even if the legislature has expressly consented to suit. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam). Generally, junior college districts are not subject to tort liability for property damage, personal injury, or death caused by the wrongful act or omission or the negligence of an employee, except when the claim involves a motor vehicle. Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3)(B) (Vernon Supp. 2002); §§ 101.021, 101.051 (Vernon 1997). ACCD argues, therefore, that ACCD is immune from the fraud claims for which it was found liable in Jury Question 11.

Jury Question 11, however, is not a fraud question. Rather, it asks whether ACCD's fraud caused the delays. (The jury's answer of "yes" prevents ACCD from relying on its no-damages-for-delay clause.) Nowhere in Browning's petition does it assert a cause of action for fraud. Also, contrary to ACCD's assertion, the damages the jury assessed against ACCD are based solely on breach of contract.

Because fraud is not a cause of action in the case, there are no fraud damages from which to find ACCD immune. Accordingly, we overrule ACCD's immunity-from-liability issue.

Duty for Design Errors

The jury assessed $2,624,802.51 in damages against ACCD because it found ACCD breached the contract in several ways, including failing or refusing to correct design errors.1 ACCD argues that these damages are unenforceable because the contract does not impose a duty on ACCD for such design errors. Thus, the issue turns upon interpretation of the contract.

Interpretation of an unambiguous contract is a question of law and we are not required to defer to any interpretation afforded by the trial court. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650 (Tex. 1999); Birnbaum v. Swepi LP, 48 S.W.3d 254, 257 (Tex. App.CSan Antonio 2001, pet. denied). Accordingly, we review the trial court's construction of an unambiguous contract de novo. MCI, 995 S.W.2d at 651.

Texas law provides: "[U]nless so expressed in the contract, an owner that furnishes a prime contractor plans and specifications is not a guarantor of the sufficiency of the plans and specifications." See City of San Antonio v. Forgy, 769 S.W.2d 293, 297 n.1 (Tex. App.CSan Antonio 1989, writ denied) (citing Lonergan v. San Antonio Loan & Trust Co., 101 Tex. 63, 104 S.W. 1061 (1907)). Texas law further provides:

If there be any obligation resting upon the [owner], as guarantor of the sufficiency of the specification, it must be found expressed in the language of the contract, or there must be found in that contract such language as will justify the court in concluding that the parties intended that the [owner] should guarantee the sufficiency of the specifications to [the contractor].

Lonergan, 104 S.W. at 1066.

Here, the contract between ACCD and Browning provides:

The Contractor shall carefully study and compare the Contract Documents with each other and with information furnished by the Owner pursuant to Subparagraph 2.2.2 and shall at once report to the Architect errors, inconsistencies or omissions discovered. The Contractor shall not be liable to the Owner or Architect for damage resulting from errors, inconsistencies or omissions discovered. The Contractor shall not be liable to the Owner or Architect for damage resulting from errors, inconsistencies or omissions in the Contract Documents unless the Contractor recognized such error, inconsistency or omission and failed to report it to the Architect. If the Contractor performs any construction activity knowing it involves a recognized error, inconsistency or omission in the Contract Documents without such notice to the Architect, the Contractor shall assume appropriate responsibility for such performance and shall bear an appropriate amount of the attributable costs for correction.

This paragraph indicates that ACCD was to be responsible for design errors. Additionally, it is nearly identical to language that the Fourteenth Court of Appeals found "intended that the owner guarantee the sufficiency of the specifications." N. Harris County Junior Coll. Dist. v. Fleetwood Constr. Co., 604 S.W.2d 247, 253 (Tex. Civ. App.CHouston [14th Dist.] 1980, writ ref'd n.r.e.). In Fleetwood, the contract provided:

The Contractor shall carefully study and compare the Contract Documents and shall at once report to the Architect any error, inconsistency or omission he may discover. The Contractor shall not be liable to the Owner or the Architect for any damages resulting from any such errors, inconsistencies or omissions in the Contract Documents.

Id.

Because the contract in this case contains language indicating ACCD had a duty to Browning for design errors, we overrule ACCD's second issue.

Agency

The jury instructions in this case provided: "ACCD means Alamo Community College District, the owner of the project and the defendant in this lawsuit, and its agents, including Beaty Sanders Chesney Morales & Fly, a Joint Venture, the architects on this project." ACCD argues that the trial court erred in so instructing the jury because 1) Browning did not plead the architects as agents; and 2) it was improper for the trial court to instruct the jury that the architects were agents as a matter of law rather than submitting agency as a fact question for the jury to answer.

We review whether an instruction properly instructed the jury on a matter of law de novo. M. N. Dannenbaum, Inc. v. Brummerhop, 840 S.W.2d 624, 631 (Tex. App.CHouston [14th Dist.] 1992, writ denied) (asserting that an instruction is improper if it misstates the law); Villareal v. Reza, 236 S.W.2d 239, 241 (Tex. Civ. App.CSan Antonio 1951, no writ) (finding an instruction that fails to instruct the jury on the burden of proof issue erroneous).

A party alleging agency has the burden of pleading and proving the agency relationship. S. County Mut. Ins. Co. v. First Bank & Trust, 750 S.W.2d 170, 172 (Tex. 1988). If no special exceptions are filed, we must construe the pleadings liberally in favor of the pleader. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000). Here, Browning alleged "ACCD and its Architect" in its petition. This language shows that Browning was seeking to hold ACCD liable for the wrongful acts of its architects. Moreover, ACCD failed to file special exceptions, so we must construe the pleadings liberally in favor of the pleader. Id. Accordingly, we find that Browning did plead the architects as agents.

Second, Texas law provides that whether an agency relationship exists is a question of fact unless the evidence establishes the relationship as a matter of law. Bhalli v. Methodist Hosp., 896 S.W.2d 207, 210 (Tex. App.CHouston [1st Dist.] 1995, writ denied). A court can determine, as a matter of law, the existence of an agency relationship from an agreement between the parties. Ward v. Prop. Tax Valuation, Inc., 847 S.W.2d 298, 300 (Tex. App.CDallas 1992, writ denied).

An "agent" is one who is authorized by a person or entity to transact business or manage some affair for the person or entity. Tenn.‑La. Oil Co. v. Cain, 400 S.W.2d 318, 325 (Tex. 1966). Here, the contract provides that the architects are authorized to do the following: 1) review and certify amounts due the contractor and issue certificates for payment in such amounts; 2) reject work that does not conform to contract documents; 3) review and approve or take other action on submittals, including shop drawings, product data, and samples; 4) prepare change orders and directives; 5) conduct inspections to determine dates of substantial and final completion; and 6) interpret and decide matters concerning performance under the contract and concerning the requirements of the contract. Because the contract provides that the architects are authorized to act on behalf of ACCD, the contract establishes the agency relationship as matter of law. Accordingly, we overrule ACCD's third issue.

Active Interference by Agents

Jury Question 7 provides: "Were the delays encountered by Browning on the Project caused by the active interferences by ACCD or its agents and/or Architects?" The jury's answer of "yes" prevents ACCD from relying on its no-damages-for-delay clause.

ACCD argues that this question is improper because the law does not extend the "active interference" exception to agents. The case ACCD cites for this proposition, however, deals with two issues: 1) whether the requirement of conspicuousness applies to no-damages-for-delay clauses (the court said no); and 2) whether a judgment predicated on exceptions to a damages-for-delay clause can stand when none of the specific exceptions were presented to the jury either by issue or instruction (again, the court said no). Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 386-88 (Tex. 1997). The case does not address whether the "active interference" exception applies to acts of the agent. Thus, ACCD has failed to present any authority for its argument.

Because ACCD has offered (and we find) no legal authority for its argument, we overrule this issue on appeal.

Insurance

ACCD next argues that the trial court erred in allowing Browning to make references to the architect's insurance coverage. ACCD points us to two places in the record where insurance is allegedly mentioned.2 ACCD failed, however, to object in either instance. Accordingly, it has waived error. Tex. R. App. P. 33.1 (a)(1).

ACCD suggests that these references to insurance are incurable error, implying it did not have to object. This proposition, however, does not square with Texas law. See Dennis v. Hulse, 362 S.W.2d 308, 309 (Tex. 1962) (holding that the mention of insurance does not always require reversal and that the party appealing must also show that it probably caused the rendition of an improper judgment); Meyers v. Searcy, 488 S.W.2d 509, 514-15 (Tex. Civ. App.CSan Antonio 1972, no writ) (following Dennis).

Because ACCD has waived any complaint to the alleged mentions of insurance, and because mention of insurance is not incurable error, we overrule this issue on appeal.

Liability to Subcontractors

ACCD argues that it was error for the trial court to submit Jury Question 3(b)(4). This question asked the jury to assess damages for Browning's liability to its subcontractors: "What sum of money, if any, paid now in cash, would fairly and reasonably compensate Browning for its . . . liability to subcontractors incurred by Browning to perform its work on the Project?" The jury answered: "$915,435.09." ACCD argues that it was error for the trial court to submit this question for three reasons: 1) ACCD is not in privity with the subcontractors; 2) The subcontractors did not assign their causes of action to Browning; and 3) Texas law does not recognize "pass-through" claims. Browning does not dispute the first two arguments. Thus, the issue here is whether Texas law recognizes pass-through claims.

The submission of a theory of recovery or defense is a question of law and is reviewable de novo. Cont'l Cas. Co. v. Street, 379 S.W.2d 648, 651 (Tex. 1964).

In Interstate Contracting Corp. v. City of Dallas, 320 F.3d 539, 543-44 (5th Cir. 2003), the Fifth Circuit certified to the Texas Supreme Court the question of whether Texas recognizes pass-through claims. Id. The court explains:

In breach of contract actions against the federal government, prime contractors have long been permitted to present subcontractors' claims on a pass‑through basis against the government, even though the no‑privity rule has barred subcontractors from recovering directly against the government. Similarly, a number of states have permitted pass‑through claims in cases involving state government entities. However, the specific contours and requirements for pass‑through claims vary from jurisdiction to jurisdiction. For example, some states permit pass‑through claims only when there is a liquidating agreement in place that meets certain requirements, while other states permit pass‑through claims when the prime contractor pleads the suit on behalf of the subcontractor and has an obligation to render the recovery to the subcontractor. The burden of proof also varies among jurisdictions. Accordingly, in light of the absence of Texas authority on these issues and the varied interpretations of these issues by other state courts, we certify the following questions to the Supreme Court of Texas and the Honorable Justices thereof.

1. Jury Question 1(b) provides: Did ACCD fail to comply with the Contract in any of the following respects: Failing to provide complete and accurate drawings to Browning; failing to obtain building permits in a timely manner; failing or refusing to correct design errors; or providing inaccurate or incomplete information in response to Browning's request for information?

2. The first instance is in Browning's opening argument, where counsel uses the words "error or omission": There is evidence that you will see in the form of written evidence that the architect team, the different members of the architect team, wouldChad sent a memo to the other sayingCon these change order formsCthere was a change order form, the evidence will show, that Mr. Fernandez, who is the ACCD representative on the project, created a form which would say one of the items would be change to work, would be omission or error in the documents or words to that effect, and you will see a memo within the architect team where it says to the other members, Don't ever check error or omission. Regardless of what the issue was, this was just a general agreement, Don't ever check that. The second instance is where Browning asks the following question of an architect: "Do you know why your carrier, your E and O carrier is paying a lawyer to represent you?"

3. The jury assessed $293,656.06 in damages against Browning for home office overhead costs incurred by Browning.

4. These issues are: 1) ACCD's argument that Jury Question 1should have referred the jury to specific contract provisions at issue; 2) ACCD's argument that the jury charge improperly submitted a "total cost" theory of damages; 3) ACCD's argument that the jury charge improperly allowed the plaintiff to recover attorney fees Browning incurred when it negotiated a settlement with its subcontractors; 4) ACCD's argument that the evidence is legally and factually insufficient to support the jury's findings in Jury Questions 1(c) and 1(d); and 5) ACCD's argument that the evidence of overhead costs is legally and factually insufficient because Browning presented no evidence that it was unable to take on additional work during the delay.

5. Even if ACCD had presented argument and authority for these issues, however, we do not believe that any of these issues would have succeeded on appeal.

6. Browning argues that the jury found in Question 1(d) that ACCD wrongfully withheld payments. Although Question 1(d) seems to be about liquidated damages, not payments, Browning shows that when ACCD assessed liquidated damages without cause, it did not require Browning to pay those damages to ACCD. Rather, ACCD offset the payments it owed Browning by those amounts. Thus, the liquidated damages ACCD assessed against Browning were, in fact, payments ACCD owed to Browning.

OPINION

AFFIRMED

This case arises from a breach-of-contract suit between Browning Construction Company ("Browning") and Alamo College Community District ("ACCD"). At trial, the jury awarded Browning, the plaintiff, over $3,000,000 on its breach-of-contract claim. The trial court entered judgment in accordance with the verdict. ACCD, the defendant at trial, appeals the judgment of the trial court in fourteen issues. Browning, appellee and cross-appellant, brings one issue on appeal. We affirm the judgment of the trial court.

Background

ACCD and Browning entered into a contract whereby Browning agreed to serve as the general contractor for the construction of a new campus for ACCD. After disagreements over delay, Browning sued ACCD for breach of contract and won damages of over $3,000,000. The key issue in the suit was whether Browning could collect damages for delay when the contract had a no-damages-for-delay clause. The jury answered yes, because 1) ACCD had waived its right to rely on that clause; 2) ACCD is estopped from relying on that clause; 3) ACCD and Browning had agreed to modify the clause; 4) the delays encountered by Browning were caused by the active interference of ACCD; 5) ACCD committed unreasonable delay such that Browning would have been justified in abandoning the contract; and 6) ACCD committed fraud, misrepresentation, or other bad faith. Browning also sued ACCD for violations of the Prompt Pay Act and quantum meruit. The jury did not find for Browning on these causes of action.

ACCD, appellant and cross-appellee, presents the following issues for review:

1) Does sovereign immunity protect ACCD from suit? Does sovereign immunity protect ACCD from tort liability?

2) Did ACCD have a duty to Browning for design errors?

3) Was it proper for the trial court to instruct the jury that the architects were agents of ACCD?

4) Was it error for the trial court to permit the jury to assess damages for Browning's liability to its subcontractors?

5) Does Jury Question 5 submit an offensive theory of estoppel, and if so, was it error for the trial court to submit it?

6) Was it error for the trial court to omit from Jury Question 1 an instruction on the specific contractual provisions at issue? Does Jury Question 1(b) violate Casteel?

7) Did the trial court submit an improper measure of damages?

8) Was there legally and factually sufficient evidence of causation to support a finding of damages for delay?

9) Was there legally and factually sufficient evidence of consideration to support the jury's finding that ACCD and Browning agreed to modify the contract?

10) Was there legally and factually sufficient evidence of design error?

11) Did the trial court abuse its discretion in denying ACCD's motion for new trial?

12) Was there legally and factually sufficient evidence to support the jury's finding that ACCD waived its right to rely on the no-damages-for-delay clause as a defense to Browning's claims?

13) Was there legally and factually sufficient evidence to support the jury's finding that ACCD breached the contract?

14) Was there legally and factually sufficient evidence to support the jury's finding of overhead cost damages?

Browning, appellee and cross-appellant, presents the following issue for review: Did the trial court err in failing to render judgment notwithstanding the verdict for Browning on its Prompt Pay Act claim?

Sovereign Immunity

A. Immunity from Suit

In its first issue, ACCD argues that sovereign immunity protects it from suit.

Sovereign immunity defeats a trial court's subject-matter jurisdiction over a lawsuit. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638-39 (Tex. 1999) (per curiam). The State may assert sovereign immunity from suit in a plea to the jurisdiction. Id. at 638. Because the question of subject-matter jurisdiction is a question of law, we review de novo a trial court's order denying a jurisdictional plea based on sovereign immunity. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

ACCD argues that sovereign immunity protects it from suit. We have specifically held, however, that junior college community districts like ACCD are not immune from suit:

ACCD is a junior college community district organized pursuant to chapter 130 of the Texas Education Code. Under chapter 130, ACCD's board of trustees' "powers and duties" "in the . . . management and control of the junior college" are governed by "the general law governing the . . . management and control of independent school districts insofar as the general law is applicable." Part of the "general law" governing the management and control of independent school districts is the Texas Legislature's consent to suits against "[t]he trustees of an independent school district . . . in the name of the district . . . ."

. . . By subjecting junior college districts like ACCD to the same general law applicable to independent school districts, it appears to us, clearly and unambiguously, the Texas Legislature granted its consent to sue junior college community districts and we so hold.

Alamo Cmty. Coll. Dist. v. Obayashi Corp., 980 S.W.2d 745, 747-48 (Tex. App.CSan Antonio 1998, pet. denied) (citations omitted), abrogated on other grounds by Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 595-98 (Tex. 2001).

In Obayashi, we followed the supreme court's holding in Missouri Pacific Railroad Co. v. Brownsville Navigation District, 453 S.W.2d 812 (Tex. 1970). See Obayashi, 980 S.W.2d at 748 (citing Mo. Pac., 453 S.W.2d at 813). In Missouri Pacific, the question was whether a 1925 statute clearly and unambiguously waived Brownsville Navigation District's immunity from suit. Mo. Pac., 453 S.W.2d at 813. The statute provided: "All navigation districts established under this Act may, by and through the navigation and canal commissioners, sue and be sued in all courts of this State in the name of such navigation district . . . ." Id. (emphasis added). The court held: "In our opinion [the statute] is quite plain and gives general consent for District to be sued in the courts of Texas in the same manner as other defendants." Id.

Similarly, the statute we relied on in Obayashi provides: "The trustees of an independent school district constitute a body corporate and in the name of the district may acquire and hold real and personal property, sue and be sued, and receive bequests and donations or other moneys or funds coming legally into their hands." Tex. Educ. Code Ann. § 11.151(a) (Vernon 1996) (emphasis added). Thus, both Obayashi and Missouri Pacific find a waiver of sovereign immunity where the Legislature provides that the governmental entity may "sue and be sued." Mo. Pac., 453 S.W.2d at 813; Obayashi, 980 S.W.2d at 748.

ACCD argues that two recent Texas Supreme Court cases, Texas Natural Resource Conservation Commission v. IT-Davy, 74 S.W.3d 849 (Tex. 2002) and Travis County v. Pelzel & Associates, Inc., 77 S.W.3d 246 (Tex. 2002), suggest that community college districts like ACCD are immune from suit. We disagree.

In IT-Davy, a general contractor (IT-Davy) contracted with the Texas Water Commission (predecessor of the Texas Natural Resource Conservation Commission) to clean up a hazardous waste site in Houston. IT-Davy, 74 S.W.3d at 851. IT-Davy cleaned the site, and the TNRCC paid IT-Davy the full contract price. Id. IT-Davy claimed, however, that it was owed additional monies under the contract because materially different site conditions increased its clean‑up costs. Id. The TNRCC refused to pay these additional costs, and IT-Davy brought suit against the TNRCC for breach of contract, negligent misrepresentation, quantum meruit, and promissory estoppel. Id. at 851-52. In response, the TNRCC filed a plea to the jurisdiction, alleging that sovereign immunity barred IT-Davy's claims. Id. at 852. The trial court denied the plea. Id. The TNRCC then filed an interlocutory appeal. Id. The court of appeals affirmed the trial court's order, holding that IT‑Davy's allegations were "sufficient to show that the [TNRCC] has engaged in conduct, beyond the mere execution of a contract, that waives its immunity from suit." IT-Davy, 74 S.W.3d at 851 (citation omitted) (brackets in original).

At the supreme court, IT‑Davy argued that the TNRCC waived its immunity from suit by fully accepting benefits under the contract. Id. at 856. In support of its argument, IT-Davy cited a footnote from Federal Sign v. Texas Southern University, 951 S.W.2d 401 (Tex. 1997), providing that there may be circumstances "where the State may waive its immunity by conduct other than simply executing a contract . . . ." See IT-Davy, 74 S.W.3d at 856 (quoting Federal Sign, 951 S.W.2d at 408 n.1). Thus, the issue for the supreme court in IT-Davy was whether Texas law allows governmental entities to waive their immunity by conduct. See id. (noting that several courts of appeals have relied on the footnote in Federal Sign to create a judicially-imposed, equitable waiver of immunity from suit). The court held:

We again affirm that it is the Legislature's sole province to waive or abrogate sovereign immunity. . . . Because we have consistently held that only the Legislature can waive sovereign immunity from suit, allowing other governmental entities to waive immunity by conduct that includes accepting benefits under a contract would be fundamentally inconsistent with our established jurisprudence and with the existing legislative scheme. Accordingly, we reject IT-Davy's argument that we should fashion such a waiver-by-conduct exception in a breach-of-contract suit against the State.

Id. at 857 (emphasis added).

The court also found that the TNRCC's sovereign immunity was not waived by contract, legislative consent under sections 5.351 and 5.352 of the Texas Water Code, or legislative consent in the Declaratory Judgment Act. Id. at 856.

In the case before us, Browning does not argue that ACCD waived its immunity by conduct. Accordingly, the waiver-by-conduct holding of IT-Davy does not apply here. Additionally, nowhere does the IT-Davy court address sovereign immunity for community college districts under the Texas Education Code, the issue in this case. Rather, IT-Davy reaffirms that it is the Legislature's sole province to waive sovereign immunity. Id. at 857. We found in Obayashi that the Legislature waived sovereign immunity for community college districts by enacting sections 130.084 and 11.151(a) of the Texas Education Code. Obayashi, 980 S.W.2d at 747-48. Accordingly, with respect to waiver by statute, Obayashi and IT-Davy are entirely consistent.

ACCD next argues that the Pelzel case suggests that community college districts like ACCD are immune from suit. In Pelzel, a construction company (Pelzel) sued Travis County for breach of contract, seeking monies allegedly due under the contract. Pelzel, 77 S.W.3d at 247. Travis County filed a plea to the jurisdiction, alleging sovereign immunity. Id. The trial court denied the plea. Id. Travis County brought an interlocutory appeal, and the court of appeals affirmed the trial court's order, concluding that Travis County waived its immunity by conduct. Id. at 247-48. The court of appeals further concluded that because Pelzel complied with section 89.004 of the Texas Local Government Code by presenting its claim to the county commissioners court before filing suit, the trial court had jurisdiction. Id. at 247 (citation omitted). Section 89.004 provides: "[A] person may not file suit on a claim against a county . . . unless the person has presented the claim to the commissioners court and the commissioners court neglects or refuses to pay all or part of the claim. . . ." Tex. Loc. Gov't Code Ann. § 89.004(a) (Vernon Supp. 2003). Thus, the issue for the supreme court in Pelzel was whether the presentment-of-claim language in section 89.004 clearly and unambiguously waives Travis County's immunity from suit. The court held: "This statutory language does not clearly and unambiguously waive immunity from suit." Pelzel, 77 S.W.3d at 249. The court goes on to cite statutes that do clearly and unambiguously waive immunity from suit. See id. (citing, as an example of a clear and unambiguous waiver of suit, section 101.025(a) of the Texas Civil Practices and Remedies Code, which provides that "[s]overeign immunity to suit is waived and abolished to the extent of liability created by this chapter"). The court also distinguishes section 89.004(a) from the statute preceding it, stating: "Originally, the statute contained >sue and be sued' language, arguably showing intent to waive sovereign immunity for suits against counties." Id. at 249-50 (citing Mo. Pac., 453 S.W.2d at 813).

ACCD relies on this language to support its argument that ACCD is immune from suit. As shown by the direct quote above, however, Pelzel does not resolve the question whether "sue and be sued" language waives sovereign immunity. Id. Nor does Pelzel overrule Missouri Pacific. Id. We are bound by the authority of Missouri Pacific unless the supreme court overrules it. Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993); In re K. S., 76 S.W.3d 36, 49 (Tex. App.CAmarillo 2002, no pet.). Accordingly, we must continue to follow Missouri Pacific.

We recognize that the Fifth Court of Appeals has interpreted IT-Davy and Pelzel to mean that the Legislature did not intend to waive sovereign immunity for school districts. See Satterfield & Pontikes Constr., Inc. v. Irving Indep. Sch. Dist., No. 05‑03‑00004‑CV, 2003 WL 22221024, at *2 (Tex. App.CDallas Sept. 26, 2003, no pet. h.) (holding that the "sue and be sued" language in section 11.151 of the Texas Education Code merely speaks to the City's capacity to sue and its capacity to be sued when immunity has been waived). The effect of the court's decision, however, is to improperly overrule Missouri Pacific. Satterfield, 2003 WL 22221024, at *17 (Lang, J., dissenting).We believe that we are bound by Missouri Pacific unless the supreme court overrules it. Therefore, we reiterate our holding in Obayashi and hold that because the Legislature clearly and unambiguously waived immunity for community college districts, ACCD is not immune from suit. Obayashi, 980 S.W.2d at 748. Accordingly, we overrule this issue on appeal.

B. Immunity from Liability

ACCD next argues that sovereign immunity protects it from liability.

Immunity from liability protects the state from judgment, even if the legislature has expressly consented to suit. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam). Generally, junior college districts are not subject to tort liability for property damage, personal injury, or death caused by the wrongful act or omission or the negligence of an employee, except when the claim involves a motor vehicle. Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3)(B) (Vernon Supp. 2002); §§ 101.021, 101.051 (Vernon 1997). ACCD argues, therefore, that ACCD is immune from the fraud claims for which it was found liable in Jury Question 11.

Jury Question 11, however, is not a fraud question. Rather, it asks whether ACCD's fraud caused the delays. (The jury's answer of "yes" prevents ACCD from relying on its no-damages-for-delay clause.) Nowhere in Browning's petition does it assert a cause of action for fraud. Also, contrary to ACCD's assertion, the damages the jury assessed against ACCD are based solely on breach of contract.

Because fraud is not a cause of action in the case, there are no fraud damages from which to find ACCD immune. Accordingly, we overrule ACCD's immunity-from-liability issue.

Duty for Design Errors

The jury assessed $2,624,802.51 in damages against ACCD because it found ACCD breached the contract in several ways, including failing or refusing to correct design errors.1 ACCD argues that these damages are unenforceable because the contract does not impose a duty on ACCD for such design errors. Thus, the issue turns upon interpretation of the contract.

Interpretation of an unambiguous contract is a question of law and we are not required to defer to any interpretation afforded by the trial court. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650 (Tex. 1999); Birnbaum v. Swepi LP, 48 S.W.3d 254, 257 (Tex. App.CSan Antonio 2001, pet. denied). Accordingly, we review the trial court's construction of an unambiguous contract de novo. MCI, 995 S.W.2d at 651.

Texas law provides: "[U]nless so expressed in the contract, an owner that furnishes a prime contractor plans and specifications is not a guarantor of the sufficiency of the plans and specifications." See City of San Antonio v. Forgy, 769 S.W.2d 293, 297 n.1 (Tex. App.CSan Antonio 1989, writ denied) (citing Lonergan v. San Antonio Loan & Trust Co., 101 Tex. 63, 104 S.W. 1061 (1907)). Texas law further provides:

If there be any obligation resting upon the [owner], as guarantor of the sufficiency of the specification, it must be found expressed in the language of the contract, or there must be found in that contract such language as will justify the court in concluding that the parties intended that the [owner] should guarantee the sufficiency of the specifications to [the contractor].

Lonergan, 104 S.W. at 1066.

Here, the contract between ACCD and Browning provides:

The Contractor shall carefully study and compare the Contract Documents with each other and with information furnished by the Owner pursuant to Subparagraph 2.2.2 and shall at once report to the Architect errors, inconsistencies or omissions discovered. The Contractor shall not be liable to the Owner or Architect for damage resulting from errors, inconsistencies or omissions discovered. The Contractor shall not be liable to the Owner or Architect for damage resulting from errors, inconsistencies or omissions in the Contract Documents unless the Contractor recognized such error, inconsistency or omission and failed to report it to the Architect. If the Contractor performs any construction activity knowing it involves a recognized error, inconsistency or omission in the Contract Documents without such notice to the Architect, the Contractor shall assume appropriate responsibility for such performance and shall bear an appropriate amount of the attributable costs for correction.

This paragraph indicates that ACCD was to be responsible for design errors. Additionally, it is nearly identical to language that the Fourteenth Court of Appeals found "intended that the owner guarantee the sufficiency of the specifications." N. Harris County Junior Coll. Dist. v. Fleetwood Constr. Co., 604 S.W.2d 247, 253 (Tex. Civ. App.CHouston [14th Dist.] 1980, writ ref'd n.r.e.). In Fleetwood, the contract provided:

The Contractor shall carefully study and compare the Contract Documents and shall at once report to the Architect any error, inconsistency or omission he may discover. The Contractor shall not be liable to the Owner or the Architect for any damages resulting from any such errors, inconsistencies or omissions in the Contract Documents.

Id.

Because the contract in this case contains language indicating ACCD had a duty to Browning for design errors, we overrule ACCD's second issue.

Agency

The jury instructions in this case provided: "ACCD means Alamo Community College District, the owner of the project and the defendant in this lawsuit, and its agents, including Beaty Sanders Chesney Morales & Fly, a Joint Venture, the architects on this project." ACCD argues that the trial court erred in so instructing the jury because 1) Browning did not plead the architects as agents; and 2) it was improper for the trial court to instruct the jury that the architects were agents as a matter of law rather than submitting agency as a fact question for the jury to answer.

We review whether an instruction properly instructed the jury on a matter of law de novo. M. N. Dannenbaum, Inc. v. Brummerhop, 840 S.W.2d 624, 631 (Tex. App.CHouston [14th Dist.] 1992, writ denied) (asserting that an instruction is improper if it misstates the law); Villareal v. Reza, 236 S.W.2d 239, 241 (Tex. Civ. App.CSan Antonio 1951, no writ) (finding an instruction that fails to instruct the jury on the burden of proof issue erroneous).

A party alleging agency has the burden of pleading and proving the agency relationship. S. County Mut. Ins. Co. v. First Bank & Trust, 750 S.W.2d 170, 172 (Tex. 1988). If no special exceptions are filed, we must construe the pleadings liberally in favor of the pleader. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000). Here, Browning alleged "ACCD and its Architect" in its petition. This language shows that Browning was seeking to hold ACCD liable for the wrongful acts of its architects. Moreover, ACCD failed to file special exceptions, so we must construe the pleadings liberally in favor of the pleader. Id. Accordingly, we find that Browning did plead the architects as agents.

Second, Texas law provides that whether an agency relationship exists is a question of fact unless the evidence establishes the relationship as a matter of law. Bhalli v. Methodist Hosp., 896 S.W.2d 207, 210 (Tex. App.CHouston [1st Dist.] 1995, writ denied). A court can determine, as a matter of law, the existence of an agency relationship from an agreement between the parties. Ward v. Prop. Tax Valuation, Inc., 847 S.W.2d 298, 300 (Tex. App.CDallas 1992, writ denied).

An "agent" is one who is authorized by a person or entity to transact business or manage some affair for the person or entity. Tenn.‑La. Oil Co. v. Cain, 400 S.W.2d 318, 325 (Tex. 1966). Here, the contract provides that the architects are authorized to do the following: 1) review and certify amounts due the contractor and issue certificates for payment in such amounts; 2) reject work that does not conform to contract documents; 3) review and approve or take other action on submittals, including shop drawings, product data, and samples; 4) prepare change orders and directives; 5) conduct inspections to determine dates of substantial and final completion; and 6) interpret and decide matters concerning performance under the contract and concerning the requirements of the contract. Because the contract provides that the architects are authorized to act on behalf of ACCD, the contract establishes the agency relationship as matter of law. Accordingly, we overrule ACCD's third issue.

Active Interference by Agents

Jury Question 7 provides: "Were the delays encountered by Browning on the Project caused by the active interferences by ACCD or its agents and/or Architects?" The jury's answer of "yes" prevents ACCD from relying on its no-damages-for-delay clause.

ACCD argues that this question is improper because the law does not extend the "active interference" exception to agents. The case ACCD cites for this proposition, however, deals with two issues: 1) whether the requirement of conspicuousness applies to no-damages-for-delay clauses (the court said no); and 2) whether a judgment predicated on exceptions to a damages-for-delay clause can stand when none of the specific exceptions were presented to the jury either by issue or instruction (again, the court said no). Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 386-88 (Tex. 1997). The case does not address whether the "active interference" exception applies to acts of the agent. Thus, ACCD has failed to present any authority for its argument.

Because ACCD has offered (and we find) no legal authority for its argument, we overrule this issue on appeal.

Insurance

ACCD next argues that the trial court erred in allowing Browning to make references to the architect's insurance coverage. ACCD points us to two places in the record where insurance is allegedly mentioned.2 ACCD failed, however, to object in either instance. Accordingly, it has waived error. Tex. R. App. P. 33.1 (a)(1).

ACCD suggests that these references to insurance are incurable error, implying it did not have to object. This proposition, however, does not square with Texas law. See Dennis v. Hulse, 362 S.W.2d 308, 309 (Tex. 1962) (holding that the mention of insurance does not always require reversal and that the party appealing must also show that it probably caused the rendition of an improper judgment); Meyers v. Searcy, 488 S.W.2d 509, 514-15 (Tex. Civ. App.CSan Antonio 1972, no writ) (following Dennis).

Because ACCD has waived any complaint to the alleged mentions of insurance, and because mention of insurance is not incurable error, we overrule this issue on appeal.

Liability to Subcontractors

ACCD argues that it was error for the trial court to submit Jury Question 3(b)(4). This question asked the jury to assess damages for Browning's liability to its subcontractors: "What sum of money, if any, paid now in cash, would fairly and reasonably compensate Browning for its . . . liability to subcontractors incurred by Browning to perform its work on the Project?" The jury answered: "$915,435.09." ACCD argues that it was error for the trial court to submit this question for three reasons: 1) ACCD is not in privity with the subcontractors; 2) The subcontractors did not assign their causes of action to Browning; and 3) Texas law does not recognize "pass-through" claims. Browning does not dispute the first two arguments. Thus, the issue here is whether Texas law recognizes pass-through claims.

The submission of a theory of recovery or defense is a question of law and is reviewable de novo. Cont'l Cas. Co. v. Street, 379 S.W.2d 648, 651 (Tex. 1964).

In Interstate Contracting Corp. v. City of Dallas, 320 F.3d 539, 543-44 (5th Cir. 2003), the Fifth Circuit certified to the Texas Supreme Court the question of whether Texas recognizes pass-through claims. Id. The court explains:

In breach of contract actions against the federal government, prime contractors have long been permitted to present subcontractors' claims on a pass‑through basis against the government, even though the no‑privity rule has barred subcontractors from recovering directly against the government. Similarly, a number of states have permitted pass‑through claims in cases involving state government entities. However, the specific contours and requirements for pass‑through claims vary from jurisdiction to jurisdiction. For example, some states permit pass‑through claims only when there is a liquidating agreement in place that meets certain requirements, while other states permit pass‑through claims when the prime contractor pleads the suit on behalf of the subcontractor and has an obligation to render the recovery to the subcontractor. The burden of proof also varies among jurisdictions. Accordingly, in light of the absence of Texas authority on these issues and the varied interpretations of these issues by other state courts, we certify the following questions to the Supreme Court of Texas and the Honorable Justices thereof.

1. Jury Question 1(b) provides: Did ACCD fail to comply with the Contract in any of the following respects: Failing to provide complete and accurate drawings to Browning; failing to obtain building permits in a timely manner; failing or refusing to correct design errors; or providing inaccurate or incomplete information in response to Browning's request for information?

2. The first instance is in Browning's opening argument, where counsel uses the words "error or omission": There is evidence that you will see in the form of written evidence that the architect team, the different members of the architect team, wouldChad sent a memo to the other sayingCon these change order formsCthere was a change order form, the evidence will show, that Mr. Fernandez, who is the ACCD representative on the project, created a form which would say one of the items would be change to work, would be omission or error in the documents or words to that effect, and you will see a memo within the architect team where it says to the other members, Don't ever check error or omission. Regardless of what the issue was, this was just a general agreement, Don't ever check that. The second instance is where Browning asks the following question of an architect: "Do you know why your carrier, your E and O carrier is paying a lawyer to represent you?"

3. The jury assessed $293,656.06 in damages against Browning for home office overhead costs incurred by Browning.

4. These issues are: 1) ACCD's argument that Jury Question 1should have referred the jury to specific contract provisions at issue; 2) ACCD's argument that the jury charge improperly submitted a "total cost" theory of damages; 3) ACCD's argument that the jury charge improperly allowed the plaintiff to recover attorney fees Browning incurred when it negotiated a settlement with its subcontractors; 4) ACCD's argument that the evidence is legally and factually insufficient to support the jury's findings in Jury Questions 1(c) and 1(d); and 5) ACCD's argument that the evidence of overhead costs is legally and factually insufficient because Browning presented no evidence that it was unable to take on additional work during the delay.

5. Even if ACCD had presented argument and authority for these issues, however, we do not believe that any of these issues would have succeeded on appeal.

6. Browning argues that the jury found in Question 1(d) that ACCD wrongfully withheld payments. Although Question 1(d) seems to be about liquidated damages, not payments, Browning shows that when ACCD assessed liquidated damages without cause, it did not require Browning to pay those damages to ACCD. Rather, ACCD offset the payments it owed Browning by those amounts. Thus, the liquidated damages ACCD assessed against Browning were, in fact, payments ACCD owed to Browning.

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