Opinion
No. 04-04-00910-CV
Delivered and Filed: February 1, 2006.
Appeal from the 408th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CI-13267, Honorable Rebecca Simmons, Judge Presiding.
Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
This appeal arises out of the breach of the water main under a street in downtown San Antonio, Texas. The City of San Antonio, individually and on behalf of the San Antonio Water System ("the City") sued Appellants Bechtel Corporation ("Bechtel") and Dead On Directional, Inc. ("Dead On") for negligence in causing the breach of the water main and damaging other city utilities. After a jury trial, Bechtel and Dead On were found liable, and the trial court entered judgment awarding damages to the City. Bechtel and Dead On appeal.
Background
Metromedia Fiber Network, Inc., contracted with Bechtel to install fiber optic cable in San Antonio as part of its telecommunications fiber optic network. Bechtel hired Dead On as a subcontractor to perform directional drilling operations in order to lay the fiber optic cable in various areas of downtown San Antonio. As part of this project, Dead On planned to drill at the northeast corner of Main Street and Dolorosa Street. On September 25, 2000, Dead On began drilling under the sidewalk along Dolorosa Street. Early the next morning, at 2:24 a.m., Dead On struck with its directional drilling equipment a 24-inch pressurized water main pipeline and a storm sewer junction box at or near the northeast intersection of Dolorosa Street and Flores Street. Six million gallons of water escaped from the ruptured main, flooding surrounding streets and the basement of the Bexar County Courthouse. The breach also damaged other above and below ground infrastructure, including a storm sewer main, a traffic signal assembly, surrounding streets, sidewalks, ramps, and curbs.
The City, individually and on behalf of SAWS, sued Bechtel and Dead On for negligence. The City alleged that Bechtel was negligent because it negligently hired Dead On as a subcontractor and because it controlled the details of Dead On's work and, as such, was liable for Dead On's actions. In Question 1, the jury found that Bechtel exercised actual control over the details of Dead On's work. In Question 2, the jury was asked to consider whether Dead On, Bechtel, and/or SAWS were negligent. The jury was instructed that Bechtel could be negligent either because it exercised actual control over the details of Dead On's work or because it negligently hired Dead On. The jury answered "Yes" to Dead On and Bechtel and "No" to SAWS. In Question 3, the jury assigned 35% liability to Dead On, 65% to Bechtel, and 0% to SAWS. In Question 4, the jury determined that the City had lost $148,180.38 as a result of the incident, and in Question 5, the jury determined that SAWS had lost $56,385.49 as a result of the incident.
Issues on Appeal
Bechtel and Dead On bring the following issues on appeal:
1. As a matter of law, Dead On cannot be held liable because it complied with Chapter 251 of the Texas Utilities Code.
2. There was legally and factually insufficient evidence that Bechtel exercised actual control over the details of Dead On's work.
3. The trial court erred in admitting evidence of subsequent remedial measures.
4. The trial court "erred in admitting Dead On's attorney's response to requests for admissions over defendants' objection to `impeach' Dead On's representative Todd Marti." And, the court "refused defendants' request for an instruction to clear up the false impression put forth by plaintiffs' use of defendants' responses to requests for admissions."
5. The trial court should have submitted an unavoidable accident instruction to the jury.
6. The trial court erroneously calculated pre-judgment interest.
7. The trial court "erred in granting Plaintiffs' costs of court in the amount of $5,603.83 for the reason that there is no evidence, or in the alternative legally insufficient evidence, or in the alternative factually insufficient evidence, to support that amount as costs of court to be awarded to Plaintiffs."
8. There is legally and factually insufficient evidence to support the amount awarded as damages.
In their brief under "Issues Presented," Bechtel and Dead On claim to have also brought the following issues: (1) the evidence is legally and factually insufficient to support the jury's finding that Bechtel was negligent; (2) the evidence is legally and factually insufficient to support the jury's finding that Bechtel was 65% responsible; (3) the evidence is legally and factually insufficient to support the jury's finding that Dead On was negligent; (4) the evidence is legally and factually insufficient to support the jury's finding that Dead On was 35% responsible; (5) the evidence is legally and factually insufficient to support the jury's finding that the water main breach was not the result of San Antonio Water System's negligence; (6) the trial court erred "by denying Bechtel and Dead On's respective motions to disregard certain jury answers and for judgment notwithstanding the verdict; and (7) the jury charge "over Defendants' objections, improperly instruct[ed] a verdict for Plaintiffs." None of these issues, however, are properly briefed in appellants' brief; as such, they are waived. See Tex.R.App.P. 38.1. Appellants cannot merely state the above as issues and then wholly fail to brief them in their appellants' brief.
Water-Soluble Paint
In their "Issues Presented," appellants also argue that the trial court erred in "refusing to submit blanks for negligence findings against the City of San Antonio" in the jury charge. Their entire briefing on this issue consists of the following:
There were, however, blanks for negligence findings against SAWS. For example, in Question No. 2, the jury was asked if SAWS was negligent. The jury answered, "No."
Plaintiffs' election to mark locates in the tri-party geographic area in easily removable soluble paint alone justified the admission of negligence blanks against the City of San Antonio and its agency. The trial court erred in refusing to submit the requested question presenting such blanks.
Appellants have failed to adequately brief this issue; as such, it is waived. See Tex.R.App.P. 38.1. Alternatively, although Bechtel and Dead On argue that the plaintiffs' election to mark the locates in removable soluble paint justifies the admission of negligence blanks against the City, the evidence shows that it was SAWS, not the City, who received the locate request, and that it was SAWS, not the City, who marked the water main line. Jeffrey Andrews, Superintendent with SAWS, testified that on September 6, 2000, Hector with Quality Direction (a subcontractor of Dead On) made a locate request to SAWS, and that Avelino Vela, a SAWS employee marked the water main line with industry standard chalk-based water-soluble paint. Andrews testified that after Vela performed the work, Andrews, himself, saw the markings on the street. In contrast, the City never received any locate requests from Dead On for the water main. Thus, not only did Bechtel and Dead On fail to properly brief this issue, but there is no evidence to support a submission of the City's negligence.
Chapter 251 of Utilities Code
Bechtel and Dead On argue that Dead On cannot be liable under chapter 251 of the Texas Utilities Code. They argue that it is undisputed that Dead On made a request for "locates" as required by the Underground Facility Damage Prevention and Safety Act, and that under chapter 251 of the Texas Utilities Code, an excavator who has fully complied may not be liable for damage to an underground facility that was not marked in accordance with statute. Bechtel and Dead On claim that it is undisputed that "locate markings were not visible near the location of the breach immediately before Dead On commenced drilling or immediately after the water main breach." Thus, Bechtel and Dead On claim that Dead On could not be liable.
Bechtel and Dead On, however, ignore conflicting trial testimony. It is disputed whether the locate markings were visible before Dead On commenced drilling. The City presented evidence that after SAWS received the request for locates, Vela, a SAWS employee went to the site and correctly marked where the water main was located. His supervisor, Andrews, testified to the standard procedure used by SAWS personnel in marking where water mains are located. Andrews also testified that he personally saw the markings on Dolorosa Street one week after they were marked. Todd Marti, vice president of Dead On, testified that he saw the blue markings on the day the drilling occurred. Indeed, Marti's testimony was not that the markings were not visible but that they were not correctly marked. As such, Bechtel and Dead On's argument is without merit.
Independent Ground to Affirm Judgment
In their appellants' brief, Bechtel and Dead On argue that there is legally and factually insufficient evidence to support the City's negligence claim against Bechtel, because there is legally and factually insufficient evidence that Bechtel exercised actual control over the details of Dead On's work. However, as emphasized by the City in its brief, Bechtel and Dead On have not challenged on appeal the jury's finding of negligence against Bechtel based on its negligent hiring of Dead On. Question 2 of the jury charge was a broad form submission that included both negligence claims, and it was not objected to at trial. Thus, as emphasized by the City, because Bechtel and Dead On failed to attack both negligent claims in their brief, we must affirm the judgment as to Bechtel on the negligent hiring claim. See San Antonio Press, Inc. v. Custom Bilt Mach., 852 S.W.2d 64, 65 (Tex.App.-San Antonio 1993, no writ) ("When a separate and independent ground that supports a judgment is not challenged on appeal, the appellate court must affirm."). Indeed, in reviewing appellants' brief, nowhere do appellants challenge the City's negligent hiring claim against Bechtel.
In their reply brief, although Bechtel and Dead On argue that the evidence is both legally and factually insufficient to support the City's negligent hiring claim against Bechtel, they do so only in response to the City's brief: "[The City] incorrectly asserts factually and legally sufficient evidence to support a finding that Bechtel negligently hired Dead-On." And, they offer no explanation of why they failed to attack the negligent hiring claim against Bechtel in their brief. Thus, we will not address the sufficiency of the negligent hiring claim, because appellants failed to bring it as an issue in their opening brief. See Tex.R.App.P. 38.1(e) (providing that appellant's brief must state concisely all issues or points presented for review).
Texas Rule of Appellate Procedure 38.3 permits an appellant to address "any matter in the appellee's brief." Tex.R.App.P. 38.3. However, a reply brief may not be used to raise new complaints or issues. Lopez v. Montemayor, 131 S.W.3d 54, 61 (Tex.App.-San Antonio 2003, pet. denied); see also Penley v. Westbrook, 146 S.W.3d 220, 227 (Tex.App.-Fort Worth 2004, pet. filed); Bankhead v. Maddox, 135 S.W.3d 162, 164 (Tex.App.-Tyler 2004, no pet.). Moreover, here, appellants cannot circumvent this rule by phrasing the issue as a response to the City's brief. The Texas Rules of Appellate Procedure do not allow an appellant to include in a reply brief a new issue in response to some matter pointed out in the appellee's brief but not raised by the appellant's original brief. Penley, 146 S.W.3d at 227; In re M.D.H., 139 S.W.3d 315, 318 (Tex.App.-Fort Worth 2004, pet. denied). Indeed, in their reply brief, Bechtel and Dead On offer no explanation at all of why they failed to brief the issue in their original brief. See Bankhead, 135 S.W.3d at 164 ("[I]ssues raised for the first time in a reply brief may not be considered, except perhaps in exceptional cases."). As such, any issue regarding the sufficiency of the City's negligent hiring claim against Bechtel has been waived. See Tex.R.App.P. 38.1, 38.3; JHC Ventures, L.P. v. Fast Trucking, Inc., 94 S.W.3d 762, 773 n. 9 (Tex.App.-San Antonio 2002, no pet.) ("Appellants, however, failed to urge the issue in their brief on the merits; by urging it for the first time in their reply brief, they waived this issue on appeal.").
Because Bechtel and Dead On have waived any complaint regarding the City's negligent hiring claim, we must affirm the judgment as to Bechtel on those grounds.
Recently, Appellants filed a post-submission letter, arguing that Romero v. KPH Consolidation, Inc., 166 S.W.3d 212 (Tex. 2005), contradicts the City's waiver argument. We disagree. Romero is inapplicable here. In Romero, the appellant argued that the trial court erred in submitting to the jury one of the negligence claims because there was no evidence to support that negligence claim. The supreme court agreed. It explained that the judgment could not rest on the jury's finding of negligence unchallenged on appeal, id. at 225, because the jury had been asked a broad-form apportionment question, id. at 227. The court reasoned that in reviewing the record, it was "reasonably certain that the jury was significantly influenced by the erroneous inclusion of the factually-unsupported" claim in the broad-form apportionment question. Id. at 228. As such, the court concluded that "the error requires reversal of judgment." Id. The supreme court then explained that the appellant had not waived error because it objected to the submission of the question, letting the trial court know the nature of its complaint. Id. Thus, Romero dealt with charge error. Here, however, on appeal, appellants have not argued that the trial court erroneously submitted a claim to the jury and that such a submission was harmful. They have only argued that there was no evidence to support one of the negligence claims; they have not brought a charge issue on appeal. As such, any issue with respect to a claim being submitted to the jury has been waived. See Tex.R.App.P. 38.1.
Subsequent Remedial Measures
Bechtel and Dead On argue that the trial court improperly admitted evidence of subsequent remedial measures and, upon admitting the evidence, improperly orally instructed the jury that the "sole reason for its admissibility into evidence is your consideration of it as establishing some type of control by Bechtel and Dead On." Bechtel and Dead On complain that "[h]aving being instructed Exhibit 77 [a letter from Bechtel to the City after the incident] was admitted as `establishing some type of control by Bechtel and Dead On,' it should not come as a surprise that ten of the jurors then answered Question 1 of the charge affirmatively that Bechtel had actual control of the details of [Dead On]'s work." First, we need not decide this issue, because we can affirm the judgment as to Bechtel on the negligent hiring grounds and any error would have only been prejudicial to the issue of "control." Second, although Bechtel and Dead On's trial counsel objected to the admission of Exhibit 77, after the court's ruling, Bechtel and Dead On's trial counsel, himself, asked for the instruction:
Given the context, we assume the trial judge meant to say "some type of control of Dead On by Bechtel."
Counsel: Your Honor, for the record, I will object to Plaintiffs' Exhibit 77 pursuant to Rule 407 of the Texas Rules of Evidence that it may not be admitted to prove negligence, culpable conduct, defect or the need for a warning instruction.
Court: All right. Exhibit No. 77 will be admitted for the sole issue of control.
Counsel: Thank you. Would you instruct the jury on that?
Court: Ladies and gentlemen of the jury, Exhibit No. 77 has been admitted. It's a letter as described. You will have that available to you possibly back in the jury room when you make your deliberations. The sole reason for its admissibility into evidence is your consideration of it as establishing some type of control by Bechtel and Dead On.
Thus, Bechtel and Dead On's attorney asked for the instruction that Bechtel and Dead On claim was so prejudicial.
Request for Admissions
Bechtel and Dead On also argue that the trial court erred in admitting Dead On's attorney's response to requests for admissions. At trial, the City's trial counsel asked Todd Marti, vice president of Dead On, the following: "Admit or deny that a directional drill which you were operating struck a water pipeline belonging to plaintiff on or about September 26, 2000." In response, Marti stated, "Dead On Directional did hit a water line, yes, sir, on the northeast corner of Flores." The City's trial counsel then confirmed, "So is the response `admit'?" Marti replied, "I said, yes, we did hit it. Yes, sir." The City then moved to admit a response Dead On made in its responses to the City's request for admissions for impeachment purposes. In Dead On's response to request for admission no. 2, it denied that a directional drill that it was operating struck a water pipeline belonging to the City on September 26, 2000.
From our review of the record, appellants made only one specific objection to the admission of this response: the response would be improper impeachment because Marti did not sign the response. In response, the City reminded the trial court that Marti was the representative for Dead On. We, therefore, find no error on the part of the trial court.
The next day of trial, Dead On and Bechtel's trial counsel again, outside of the presence of the jury, complained to the trial court about the admission of Dead On's response to the City's requests for admissions. Appellants' trial counsel was concerned that opposing counsel had "told the jury that the defendants had filed court papers, these requests for admissions, and that's not so. They were not filed and they were not court documents. They were served on opposing counsel . . ." And, according to counsel, Dead On denied the admission because there is a distinction between a "reamer" and a "drill." Dead On denied that its "drill" struck the water main; but, according to counsel, "There's never been a dispute that the reamer struck the water main." Thus, Dead On and Bechtel's counsel requested the following instruction: "So I would like an instruction at least that I did not file papers with the court denying that the reamer had struck the water pipe." Opposing counsel agreed that it would join "in a stipulation that requests for admission are not filed with the court, that they are simply served on opposing counsel." Dead On and Bechtel's counsel then complained of the admission of Dead On's denial to the request for admissions:
Dead On: See, it puts me at a disadvantage because the jury thinks that I have tried to mislead somebody and I wasn't trying to mislead anybody.
Court: But that's the problem. You are stuck with your answer to the admissions —
Dead On: Sure.
Court: — and you are going to technically read it like that and you are going to deny it based on your technical read [i.e., reamer vs. drill] and they [the City and SAWS] are saying your technical read is full of bogusness [sic] —
Dead On: Sure.
SAWS: That's right.
Court: — and that, in fact, it shouldn't have been read that way and you wrongfully and inartfully denied something that should have been admitted. Those are the chips where they have been laid. You have also questioned this witness about it who said that a reamer is not a drill and you have already had him explain that. So I'm not going to give a further instruction. I would caution counsel that you are aware admissions are not filed. I understand what this argument was. I doubt the jury recall, knows, or even remembers any of this, but in closing arguments, you know, the minute you say something has been filed, I'm going to instruct the jury that it has not been filed. So don't do it. Okay. You may make whatever arguments you want to about the admissions because they are what they are, but as far as — the idea that they have been filed is not accurate.
SAWS: Yes, ma'am.
Court: So don't do it. Okay?
Dead On: Thank you, Your Honor. May I have those also marked, the letters and the opening statement? I will have those marked as . . .
Reviewing the record, we see no error on the part of the trial court.
Bechtel and Dead On also claim that the admission of Dead On's responses to the request for admissions violated Texas Rule of Evidence 408, which does not allow "[e]vidence of conduct or statements made in compromise negotiations" to be admitted in evidence. See Tex. R. Evid. 408. Bechtel and Dead On, however, did not lodge this objection at trial and, as such, have failed to preserve error for appeal. See Tex.R.App.P. 33.1.
Unavoidable Accident Instruction
Bechtel and Dead On also argue that an unavoidable accident instruction should have been submitted. However, Bechtel and Dead On cite no law and point to only one piece of evidence, Exhibit 6. They claim that "it may be reasonable to interpret Exhibit 6, plaintiffs' plat of the water main, as depicting the water main was running [sic] under Dolorosa Street, parallel to and removed from the curb adjacent to the cathedral, and not where [Dead On] elected to drill." Looking at Exhibit 6, we cannot make such a reasonable interpretation, and Bechtel and Dead On do not point to expert testimony allowing for such a conclusion. Thus, Bechtel and Dead On have not adequately briefed why Exhibit 6 would support their assertion. See Tex.R.App.P. 38.1.
Damages
Bechtel and Dead On contend that there is legally and factually insufficient evidence of the cost to repair the damage to the City's utilities. According to Bechtel and Dead On, "[t]here was not legally sufficient evidence to establish that the amounts claimed were reasonable out-of-pocket costs incurred or that the infrastructure was restored to the condition it was in immediately before the occurrence in question." Thus, they argue that there is insufficient evidence to support the jury's findings that the City suffered damages in the amount of $148,180.49 and that SAWS suffered damages in the amount of $56,385.49. Bechtel and Dead On, however, just offer these conclusory statements and do not discuss the evidence at all. As such, they have inadequately briefed this issue. See Tex.R.App.P. 38.1.
Alternatively, there is sufficient evidence, both legally and factually, to support the jury's findings on damages. We review whether the evidence is legally and factually sufficient under the usual standard of review. See Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001) (legal sufficiency); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (factual sufficiency).
Armando Arturo Aranda, Jr., street operations manager for the City, testified about the extent of repairs made to the City's infrastructure by the City, and he concluded that the City's costs totaled $148,180.38. He testified that this amount was reasonable and the repairs were necessary. Entered into evidence as Plaintiffs' Exhibit 78 was a spreadsheet prepared by Aranda detailing the work and the cost of each repair. And, Aranda testified that this amount did not include damages suffered by SAWS.
Jeff Andrews, superintendent with SAWS, testified that it cost SAWS a total of $34,747.22 to repair just the pipe portion. Andrews testified that not only was the amount reasonable but "pretty cheap." Also entered in evidence as Plaintiffs' Exhibit 74 was a spreadsheet prepared by Andrews detailing the work and cost of each repair. Phillip Cook, Director of Water Treatment Production at SAWS, testified that SAWS lost approximately 6.09 million gallons of water, which cost SAWS a total amount of $21,638.27. Cook also estimated the cost of repairing the water main to be $34,747.22. Plaintiffs' Exhibits 92-94 show his conclusions. Thus, SAWS presented evidence of costs totaling $56,385.49, which is the amount awarded by the jury.
There is legally and factually sufficient evidence of damages.
Prejudgment Interest and Costs
Bechtel and Dead On claim that the trial court incorrectly calculated prejudgment interest, because it calculated prejudgment interest from March 25, 2001. Pursuant to section 304.104 of the Texas Finance Code, "prejudgment interest accrues on the amount of a judgment during the period beginning on the earlier of the 180th day after the date the defendant receives written notice of a claim or the date the suit is filed and ending on the day preceding the date judgment is rendered." Tex. Fin. Code Ann. § 304.104 (Vernon Supp. 2004-05).
Here, the trial court calculated prejudgment interest from March 25, 2001, or the 180th day after September 26, 2000. On September 26, 2000, Abigail Antuna, counsel for SAWS sent Bechtel and Dead On a letter notifying them of the claim. Bechtel and Dead On claim that the trial court erroneously took notice of this letter because "pleadings are not evidence unless offered and admitted as evidence by the trial court, nor are documents attached to the pleadings evidence unless introduced at trial." For this proposition, Dead On and Bechtel cite Ceramic Tile International, Inc. v. Balusek, 137 S.W.3d 722 (Tex.App.-San Antonio 2004, no pet.). In Ceramic Tile, Albert Balusek sued Ceramic Tile for damages. Id. at 724. Later, Albert Balusek conveyed his property to his son, George Balusek, and assigned George his claims for property damages. Id. George Balusek filed a sixth amended petition, suing on his own behalf and as assignee of the causes of action. Id. He attached to the petition a copy of the assignment from his father. Id. The jury awarded damages in his favor. Id.
On appeal, Ceramic Tile argued that Balusek could not recover as assignee because he had offered no proof of the assignment of the property damage claims at trial. This court explained that "[s]imply attaching a document to a pleading neither makes the document admissible as evidence, dispenses with proper foundational evidentiary requirements, or relieves a litigant of complying with other admissibility requirements." Id. at 725. As such, "because Balusek did not offer the assignment into evidence at trial, he did not meet his burden of proving a cause of action existed that was capable of assignment and that the cause was in fact assigned to him." Id. Thus, Balusek did not establish his right to recover the claims that belonged to his father, Albert. Id.
To recover prejudgment interest, the City and SAWS did have to "provide the court with competent evidence to establish the proper amount of the interest award." Foust v. Walters, 21 S.W.3d 495, 503 (Tex.App.-San Antonio 2000, pet. denied); Quality Beverage, Inc. v. Medina, 858 S.W.2d 8, 11 (Tex.App.-Houston [1st Dist.] 1993, no writ). However, competent evidence in this context can be stipulations, affidavits, or live testimony at a post-verdict or timely post-judgment hearing, Foust, 21 S.W.3d at 503; Medina, 858 S.W.2d at 11. It need not be evidence offered at trial. Here, the September 26, 2000, letter is contained within the clerk's record, and it is proven up by Cook's affidavit. Thus, it is competent evidence that the trial court could rely on in determining the date on which Bechtel and Dead On received notice of the claims.
Bechtel and Dead On also argue that the trial court erred in granting the City and SAWS costs in the amount of $5,603.83 because there is legally and factually insufficient evidence of such costs. That, however, is the extent of their argument. Bechtel and Dead On do not explain why the evidence of such costs are insufficient. As such, they have inadequately briefed this issue. See Tex.R.App.P. 38.1.
Conclusion
Because none of Bechtel and Dead On's issues has merit, we affirm the judgment of the trial court.