Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision The court affirms the judgment in part and reverses in part, and renders judgment that Continental recover from De-Kaizered the total net sum, including attorney’s fees, of $126,128.50. FACTS:On April 28, 1998, De-Kaizered hired Continental Dredging to dredge to a uniform depth of 36 feet within 20 feet of its dock in the Houston ship channel. The dock was owned by De-Kaizered and operated pursuant to a lease by Texas Stevedores. Continental agreed to a $4 per cubic yard payment to be based on a before-and-after survey conducted by a third party. The third party conducted a survey, but after filing its initial report, at Continental’s requires, reevaluated its results. Relying on the revised report, Continental submitted an invoice for the removal of more than 27,000 cubic yards. Around this same time, a ship attempted to dock at De-Kaizered’s dock but was unable to. De-Kaizered suffered $56,845 in damages from the failed docking. Hurricane Frances hit the area a few months later, and in the fall of 1998, after three more ships were unable to dock, the Pilots Association restricted access to De-Kaizered’s dock to ships requiring 33 feet or less. De-Kaizered and Texas Stevedores undertook additional dredging operations to solve the problem. They did so, however, 10 feet from the dock. De-Kaizered refused to pay Continental’s invoice, saying Continental had failed to perform its contractual obligations, so Continental sued De-Kaizered for breach of contract and suit on account. De-Kaizered filed a countersuit for DTPA violations and breach of warranty. The jury ruled for Continental on its breach of contract claims, awarding the dredging company $123,556 plus attorneys’ fees, expenses and appeal costs. However, the jury also found Continental had violated the DTPA and had failed to comply with the warranty. The jury awarded De-Kaizered more than $66,000 in damages, but $0 in attorneys’ fees. The trial court rendered judgment for Continental for $57,071, which was the offset between its award and the award for De-Kaizered. HOLDING:Affirmed in part; reversed and rendered in part. Reviewing the jury finding on the DTPA violation, the court notes that Continental says the only representation it made concerning the work was that it had removed spoilage in the amount of more than 27,000 cubic yards as determined by the third party. On the other hand, De-Kaizered responds that Continental’s employees misrepresented to Texas Stevedores that it had dredged in front of the dock to a depth of 36 feet. The court concludes that all of Continental’s misrepresentations (if that’s what they were) occurred only within the confines of the contract. While a breach of contract claim may lie, a DTPA claim would not. The court thus reverses the trial court on the DTPA issue. Sufficient evidence exists to support a conclusion Continental did not dredge to a depth of 36 feet, the court rules. The jury found Continental breached the contract. The only basis argued for that breach was the failure to dredge to 36 feet. Further, when viewed neutrally, the court cannot say that the great weight and preponderance of the evidence indicates Continental did dredge down to 36 feet. The court thus affirms the trial court judgment for De-Kaizered on the breach of warranty issue. Continental argues Hurricane Frances broke the causal chain, but the court points out that no evidence was introduced to show that the storm actually caused silt to accumulate at the relevant portion of the docking channel. The court next considers whether Continental’s breach was a material one; the jury concluded it was not. The court refers to evidence that Continental acted in good faith by relying on the third-party report that the Continental had performed its job, the court concludes there was enough evidence to support the jury’s implied conclusion that Continental substantially performed the contract. The court overrules De-Kaizered’s contention that the evidence is factually insufficient to support the jury’s finding that De-Kaizered’s performance was not excused by Continental’s failure to comply with a material obligation of the contract. The court then reviews the legal and factual sufficiency of the jury’s award of $0 in attorneys’ fees under the DTPA claim. Generally, attorneys’ fees are mandatory for the prevailing party in a DTPA action, but that party still carries the burden to establish the amount that is reasonable and necessary. De-Kaizered’s attorney presented uncontroverted testimony about the value of his services, so the jury’s award of $0 was against the great weight and preponderance of the evidence. “In summary, we affirm that part of the judgment awarding Continental contract damages in the amount of $123,556.00, and the following attorney’s fees: $49,422.00 for trial, $15,000.00 for appeal to the court of appeals, and $10,000.00 for any appeal to the Texas Supreme Court. We reverse and render the award to De-Kaizered of $56,485.00 for violation of the DTPA attributable to an alleged false, misleading, or deceptive act or practice by Continental. We affirm the award to De-Kaizered of $10,000.00 for Continental’s breach of warranty. We reverse the award of zero dollars in attorney’s fees to De-Kaizered and render judgment that De-Kaizered recover from Continental its attorney’s fees as follows: $36,849.50 for trial, $15,000.00 for appeal to the court of appeals, and $10,000.00 for any appeal to the Texas Supreme Court.” OPINION:Ross, J.; Morriss, C.J., Ross and Carter, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.