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Click here for the full text of this decision FACTS:Max Bowen, as president of Max Bowen Enterprises, contracted with Roy Robinson for Robinson to construct a barge canal on Bowen’s waterfront property near Dickinson Bay. Bowen’s project manager submitted an application to the Army Corps of Engineers in May 2001, and in December 2001, the project manager filed an application with the Texas General Land Office for permission to cross Texas land once the ACE permit was granted. The ACE issued a permit on Feb. 26, 2002, and the project manager sent notice back on March 11 that the work had begun. Robinson and his team were on the site starting in December 2001 to prepare it for work. Robinson built an access road, prepared the site for excavation, built a dam and began excavation for the canal on the dry side of the dam. On April 21, 2002, however, the project manager evicted Robinson from the property. Robinson sued. At trial, he testified that he and Bowen agreed that in exchange for Robinson digging the channel, disposing of the dirt and building a canal, Bowen would pay Robinson 40 percent of the profit from selling or leasing the property. Bowen estimated that he would have received between $80,000 and $100,000 per acre. He also testified that he spent about $1 million in preparing the site so that his expected benefit of the bargain was between $887,000 and $1.59 million. A jury awarded Robinson $841,528 for breach-of-contract damages and $46,643 in quantum meruit damages. HOLDING:Affirmed. Bowen’s first issue on appeal is that the legal theories Robinson pleaded do not support the judgment. The court first notes that Robinson’s petition was sufficient to give Bowen notice that the cause of action was for breach of an oral agreement to construct a barge canal on Bowen’s property. Bowen next argues that Robinson’s “judicial admissions” bar his claims for breach of contract. The court rules, however, that Robinson’s statements in his petition, response to requests for disclosure and response to interrogatories, that his contract was with Max Bowen Enterprises, not Bowen personally were not judicial admissions. A judicial admission must be a “clear, deliberate, and unequivocal statement, and it occurs when an assertion of fact is conclusively established in live pleadings, making the introduction of other pleadings or evidence unnecessary,” the court explains. Here, Robinson pleaded alternative causes of action: breach of contract of a partnership agreement and breach of a construction contract. Given these alternative pleadings, which are not clear and unequivocal statements, Robinson did not make judicial admissions. Bowen also claims Robinson’s judicial admissions preclude his recovery on damages; Robinson said in his pleadings that he was seeking only out-of-pocket expenses. Reviewing the pleadings, the court finds, however, that Robinson pleaded a benefit-of-the-bargain theory and the jury was charged accordingly. The court again notes that a judicial admission must be a clear and unequivocal statement, and also notes that a plaintiff is not required to allege the applicable legal measure of damages in his pleadings. “Taken in the context of the entire pleading, the measure of damages was pleaded in the alternative, thereby placing Bowen on notice to defend against both measures, and Robinson presented evidence at trial of both his out-of-pocket damages and benefit-of-the bargain damages. Accordingly, we hold that Robinson was not limited by judicial admission or inadequate pleading to recovering his out-of-pocket expenses for”equipment materials, labor and expertise.’” Finally, noting that Robinson did not have to prove his lost profits by an exact calculation, the court finds the evidence supports the amount of damages. Robinson himself testified as an expert witness: he was qualified, and his testimony on the property’s market value was undisputed. Furthermore, the jury’s total award was within the range set out in Robinson’s testimony. OPINION:Tim Taft, J.; Taft, Higley and Bland, J.J.

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