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Click here for the full text of this decision FACTS:Bencon Management & General Contracting Inc. entered into a construction contract with the Metropolitan Transit Authority of Harris County on Feb. 2, 1999, to conduct road improvements in the downtown area. The following day, Bencon sent a purchase order to Boyer Inc. to accept Boyer’s bid to be the subcontractor on the project’s tunneling work. Attached to the one-page order was Boyer’s one-page bid, which stated that Boyer would comply with the project’s specs and contract conditions as existed between Bencon and Metro. The subcontract also stated that Boyer’s work would last approximately 160 days. Because of the discovery of live electrical wires in the area where Boyer needed to tunnel, Boyer, with Metro’s knowledge, could not begin its work until May 20. Boyer completed its work on March 21, 2000. Due to some of the problems affecting the tunneling project, Metro granted Bencon an 84-calendar-day extension on the project. Because Bencon had not paid Boyer, Boyer sent out statutory notices on the payment bond for which General Accident Insurance Co. of America and Pennsylvania General Insurance Co. were the sureties. Boyer then sued Bencon for breach of contract for the more than $200,000 Bencon had not yet paid. Bencon paid Boyer $126,686 soon thereafter, but Boyer said Bencon still owed amounts in retainage and for work under a change order. Bencon filed a counterclaim against Boyer, alleging that Boyer breached the subcontract by its lengthy delay in performing its works. The delay resulted in $533,254 worth of damages, Bencon said. The case went to trial, where a jury found that Bencon did not comply with the subcontract, and its failure to comply was not excused Boyer’s own failure. The jury also awarded attorneys’ fees of $282,773 for trial work, plus fees for subsequent appeals. HOLDING:Affirmed. On appeal, Bencon argues that there is legally and factually insufficient evidence to prove that Boyer complied with various conditions precedent in the subcontract. Because Boyer pleaded that all conditions precedent to its recovery against Bencon had been performed or had occurred, Boyer was required to prove only the conditions precedent that Bencon specifically denied. The implication of Bencon’s argument, the court explains, is that the contract between Bencon and Metro applies to Boyer. Bencon says that Boyer did not meet several of the conditions precedent in the primary contract between Bencon and Metro. The court notes that the trial court never ruled on the issue of whether the main contract applied to Boyer. The court also notes that there was some conflicting testimony about how much, if any, of the main contract applied to Boyer. The court points out, however, that regardless of the testimony, if the contract between Boyer and Bencon is unambiguous, its construction and interpretation are a question of law for this court to resolve. “After considering both the Subcontract and the Prime Contract, we conclude that, as a matter of law, under the unambiguous language of the Subcontract, Boyer promised to comply only with the parts of the Prime Contract that contain project plans, specifications, or contract conditions applicable to Boyer’s work.” The court adds that, inasmuch as Bencon only pleaded failure to comply with certain alleged conditions in the main contract in the event that the entire main contract applies to Boyer, and because the entire main contract does not apply to Boyer, Bencon did not specifically deny the alleged conditions precedent it raised, and Boyer did not have to prove its compliance with them. The court then turns to Bencon’s argument that the evidence was factually and legally insufficient to prove that Boyer timely performed under its contract with Bencon. The court notes that the jury charge did not require the jury to find that Boyer timely performed under that contract. “Accordingly, we deem the trial court to have made a finding that Boyer completed the Subcontract within a reasonable time.” The court then examines several bits of evidence from the record on Boyer’s completion of the job, finding it legally sufficient to support the finding that Boyer completed its obligations under its contract with Bencon in a reasonable time. The evidence includes 1. the Metro-approved delay in starting 2. the fact that Bencon’s own progress was not hindered by Boyer’s progress; 3. Metro’s grant to Bencon of an 84-day extension; and 4. the fact that Metro paid Bencon for the part of Boyer’s work that Bencon had not paid to Boyer. The court also finds the evidence factually sufficient. Next, the court reviews the award of attorneys’ fees. Bencon argues the trial court erred in not requiring Boyer to segregate its attorneys’ fees among the various claims Boyer raised in its suit, as well as among the issues Bencon raised in its counterclaim. The court says, even if it is presumed that the trial court erred, Bencon did not object to the lack of segregation and thus waived its complaint on appeal. As for the amount of attorneys’ fees awarded, the court first finds that the portion of the award attributable to work performed by legal assistants was backed up by billing records that showed the number of hours the assistants worked, their hourly rate and the exact services they rendered. Finally, the court finds the fees charged by the attorneys were supported by legally and factually sufficient evidence. OPINION:Kem Thompson Frost, J.; Anderson, Hudson and Frost, JJ.

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