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Click here for the full text of this decision FACTS:TA Operating Corp., a truck stop travel center company, contracted with Solar Applications Engineering Inc. to construct a prototype multiuse truck stop in San Antonio for a fixed price of $3,543,233. Upon substantial completion, TA sent Solar a list of items that needed to be finished to complete the building. Solar disputed several items on the list and delivered a response to TA listing the items Solar would correct, and listing the subcontractor responsible for each item. Solar began work on the list items and filed a lien affidavit against the project on Oct. 2, 2000, in the amount of $472,392.77. On Oct. 18, 2000, TA sent notice to Solar that Solar was in default for not completing the listed items, and for failing to keep the project free of liens. TA stated in the letter that Solar was not entitled to final payment until it completed the remainder of the listed items and provided documentation that liens filed against the project had been paid. TA ultimately sent Solar a letter of termination citing Solar’s failure to complete the listed items as grounds for termination, which Solar accepted on Nov. 13, 2000. In its reply letter, Solar disputed that the termination was for cause. Solar acknowledged at least two items on the list had not been completed, and submitted a final application for payment in the amount of $472,148,77, the unpaid retainage. TA refused to make final payment, however, contending that Solar had not complied with �14.07 of the contract, which expressly made submission of an all-bills-paid affidavit a condition precedent to final payment. Solar sued TA for breach of contract under the theory of substantial performance. At the time of trial, $246,627.82 in liens existed against the project. Solar did not dispute that the liens existed, nor did it dispute that it was contractually obligated to submit an all-bills-paid affidavit as a condition precedent to final payment. TA counterclaimed for breach of contract and requested a judgment against Solar for damages incurred for Solar’s failure to complete the project timely, the cost of repairing defective work and liens filed against the project. The trial judge severed TA’s counterclaim for damages related to liens filed against the project by subcontractors and entered judgment for Solar in the amount of $392,000, the amount of consideration remaining on the contract less the cost of remediable defects in the work. TA appeals. HOLDING:Affirmed in part; reversed and rendered in part; motion for rehearing granted. The issue of whether the doctrine of substantial performance applies in construction contracts when the submission of an all-bills-paid affidavit is an express condition precedent to final payment has not yet been decided by a Texas court. TA, seeking protection from double liability and title problems, expressly conditioned final payment on Solar’s submission of an all-bills-paid affidavit. Solar did not dispute that it was contractually obligated to submit the affidavit as a condition precedent to final payment, and it was undisputed at trial that $246,627.82 in liens had been filed against the project. Though the doctrine of substantial performance permitted Solar to sue under the contract, Solar did not plead or prove that it complied with the express condition precedent to final payment. Had Solar done so, it would have been proper to award Solar the contract balance minus the cost of remediable defects. “While we recognize the harsh results occasioned from Solar’s failure to perform this express condition precedent, we recognize that parties are free to contract as they choose and may protect themselves from liability by requesting literal performance of their conditions for final payment. See 8 Corbin on Contracts � 36.2 (“Theoretically, at least, people are free to contract as they choose, limiting their rights and duties in ways that are unusual or absurd or unprofitable.’). The parties agreed to the conditions for final payment, and Solar did not plead or prove it performed the condition precedent of submitting an all-bills-paid affidavit. We therefore sustain TA’s first issue and render judgment that Solar take nothing on its breach of contract claim.” TA contends that the trial court erred in submitting a jury question regarding whether Solar’s failure to complete the work timely was excused by waiver. The trial court submitted the following question to the jury: “Was Wade’s [a/k/a Solar] failure to complete the Work under the Contract Documents within the time specified by the Contract Documents excused by waiver. Waiver is an intentional surrender of a known right or intentional conduct inconsistent with claiming the right.” Because the issue of waiver was raised by the evidence, it was not error for the trial court to submit this question. Alternatively, TA contends the evidence is insufficient to support the conclusion that Solar’s failure to complete the work within the specified time in the contract was excused by waiver, and that the court should therefore have disregarded the jury’s answer to the question. “The jury, as the trier of fact, was authorized to resolve conflicts within the testimony of witnesses and evidence, and we will not substitute our judgment for that of the jury.” TA argues the trial court erred in applying a common law measure of damages rather than the parties’ contractually agreed upon measure of damages in entering judgment. Ordinarily, a finding of substantial performance of the contract results in the measure of damages being the cost of remedy or repair. TA conceded that there was substantial performance of the building contract. Therefore, it was proper for the trial court to apply a common law measure of damages. The court does not find evidence that Solar intended to deceive TA or that it did not intend to substantially complete the building by the specified time in the contract documents. The court does not find evidence that Solar committed a material misrepresentation. The trial court did not abuse its discretion in refusing TA’s requested jury question on fraud, the court concludes. OPINION:Stone, J.; Stone, Angelini and Marion, JJ.

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