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No. 01-02-00153-CV, 7/3/2003. Business, Banking and Contracts Click here for the full text of this decision FACTS:Slosburg Company, Gibraltar Construction Co. and Texas SFI Partnership 24 Limited, appellees, sued Law Engineering & Environmental Services Inc. (Law), appellant, for breach of contract for failure to monitor the removal of all debris and to ensure that the soil on Slosburg’s property had been properly compacted. Law counterclaimed for breach of contract for failure to pay for services rendered. A jury found that both parties were in material breach of the contract and awarded both parties damages for their respective claims. The trial court offset Slosburg’s recovery by the amount awarded Law. Law and Slosburg appealed. In three issues, Law challenges the legal and factual sufficiency of the evidence supporting the jury’s finding that 1. it breached the contract; 2. the breach caused Slosburg’s damages; and 3. Slosburg was damaged by the breach. In its sole issue, Slosburg contends that the trial court erred in offsetting its recovery because the jury’s finding that Law materially breached the contract precludes recovery by Law on its breach of contract counterclaim. HOLDINGAffirmed. In its first issue, Law contends that the evidence is legally and factually insufficient to support the jury’s finding that it breached the contract. Under the contract, Law was obligated to supply a technician to inspect, test and certify the completeness of Third Coast’s work. The Law technician completed daily reports and faxed them, as required under the first term of the contract. The reports detailed the following: 1. the grids worked in; 2. the demolition, excavation and compaction work, if any, done that day; and 3. the tests the technician performed, if any. Slosburg does not dispute that the technician completed daily reports, but argues that he omitted key information that he was required to include. Law does not dispute that the reports do not provide notice that the soil technician was not testing below 4 feet or that it could certify compaction below 4 feet. However, the technician testified that he told Ron Hanson, a Gilbraltar project superintendent, that he was not getting into the 8-foot trenches to test compaction because of safety concerns, and instead he was observing the compaction until 4 feet of backfill was in place and then getting into the trenches to test compaction. Law contends that the evidence is legally and factually insufficient to support a finding that it failed to monitor the removal of the concrete, piers and other debris. Law contends that it was not asked to monitor Third Coast’s removal of debris that could not be seen from the surface or was located in parts of the property not previously excavated. There was evidence that Law was required to remove everything from the site and that, during the remediation phase, slabs, piers, utilities and other debris were found all over the property, including in the previously excavated areas. There was evidence that this debris could have been seen from the surface. Law also contends that the evidence is legally and factually insufficient to support a finding that it failed to ensure that the soil was compacted properly. There was substantial evidence that the soil was not compacted properly. Ahmed testified that because the excavated soil had not been properly compacted below 4 feet, sinkholes formed. Law’s geotechnical assessment of the property concluded that the sinkholes were the result of improper compaction of the soil in extracted pier holes. The court concludes that there is more than a scintilla of evidence to support the finding that Law materially breached the contract by 1. failing to include problems it encountered in the daily reports; 2. failing to monitor the removal of the debris; and 3. failing to ensure that the soil was properly compacted. Moreover, the evidence is not so weak nor is the finding so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Although Law presented evidence that is inconsistent with the finding of breach, the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. The trier of fact may resolve conflicts and inconsistencies in the testimony of any one witness as well as the testimony of different witnesses. This court cannot substitute its judgment or its opinion for that of the jury. OPINION:Hedges, J; Hedges, Nuchia and Keyes, JJ

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