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Mustang Pipeline Co. v. Driver Pipeline Co. Supreme Court of Texas Opinion [edited by instructor] PER CURIAM In this breach of contract case, both parties, Mustang Pipeline Co. (Mustang), and Driver Pipeline Co. (Driver), ... Mustang initially sued Driver for Driver's failure to complete work in a timely manner. Driver counterclaimed for Mustang's wrongful termination of the contract. It is a fundamental principle of contract law that when one party to a contract commits a material breach of that contract, the other party is discharged or excused from further performance. ... Furthermore, if it is clear the parties intend that time is of the essence to a contract, timely performance is essential to a party's right to require performance by the other party. ... ... In January 1997, Mustang entered into a contract under which Driver was to construct the northern 100 miles of a 200-mile pipeline from Mont Belvieu to Longview, Texas. During the bidding process, Mustang stressed that time was of the essence and that the pipeline construction had to be completed no later than April 30, 1997. In response to this time demand, Driver increased its original bid by approximately ten percent, but was still awarded the contract. The parties agreed on a fourteen-week schedule, working eleven hours per day, seven days a week. Driver contends that extensive rains delayed the project soon after work began. On March 3, 1997, Driver proposed shutting down pipeline construction until the weather improved. On March 5, Driver officially requested a thirty-day extension to the agreed completion date, citing adverse weather and safety concerns as the reason for the delay. At a meeting on March 6, Driver reiterated its intent to shut-down operations and wait for drier weather, and it proposed a new 161-day construction schedule. Fifty-eight days into the ninety-eight-day construction schedule, Driver had completed only fifteen miles of pipeline and suspended operations. The parties dispute whether Driver could have accomplished more during this time by using different equipment or reassigning crews to work on drier areas. The contract includes provisions explaining how the crews and pipeline welds could be protected while working in the rain, suggesting that the parties anticipated working despite at least some inclement weather. By March 17, Driver stated that it was still not ready to resume work on the pipeline, so Mustang's project engineer certified Driver to be in default under the contract. Mustang then contracted with Sunland Corporation to finish Driver's portion of the pipeline, which it completed in September 1997. Mustang sued Driver for breach of contract to recover the cost of completion, lost profits, and attorney's fees. Driver countersued for breach of contract, alleging that Mustang wrongfully terminated the contract, and sought damages, lost profits, and attorney's fees. In their respective answers, both parties raised the other's material breach as an affirmative defense. ...[the trial court jury found that both parties had breached the contract] Both parties appealed. ...2 Mustang petitioned this court for review, asking us to ...grant a new trial. First, we must consider whether the trial court erred in denying Mustang's motion for judgment notwithstanding the verdict.** Mustang argues that the ...[jury's finding that Mustang had also breached the contract] and Driver's breach rendered the jury's ... [finding] regarding Mustang's wrongful termination immaterial, because once a party has breached [a contract] it cannot later sue on the contract. ... Accordingly, Mustang contends that the trial court should have ... granted its motion for judgment notwithstanding the verdict. ... ... [the] correct holding [is] that a party is released from further obligation under the contract only if the other party materially breached. .... Texas Rule of Civil Procedure mandates that a trial court "shall, whenever feasible, submit the cause upon broad-form questions." ... The jury question regarding Driver's breach tracks the Texas Pattern Jury Charge language for the recommended breach of contract question, asking "Did Driver Pipeline Company fail to comply with the contract it had with Mustang Pipeline Company?" COMM. ON PATTERN JURY CHARGES, STATE BAR OF TEX., TEXAS PATTERN JURY CHARGESBUSINESS, CONSUMER, EMPLOYMENT PJC 101.2 (2000) ("Did [defendant Driver] fail to comply with the agreement?"). The jury answered yes. The evidence presented at trial established that Driver's failure to comply was a material breach. The Restatement lists five circumstances significant in determining whether a failure to perform is material: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected. (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived. (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture. (d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of the circumstances including any reasonable assurances. (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing. ... ... also articulates circumstances that are significant in determining when a party's duties are discharged under a contract due to the other party's material breach. [The] relevant factors, in addition to those listed above, are: (1) the extent to which it reasonably appears to the injured party that delay may prevent or hinder him in making reasonable substitute arrangements. (2) the extent to which the agreement provides for performance without delay, but a material failure to perform or to offer to perform on a stated day does not of itself discharge the other party's remaining duties unless the circumstances, including the language of the agreement, indicate that performance or an offer to perform by that day is important. ... The evidence presented established both that Driver's breach was material and that Mustang was discharged from its duties under the contract based on that breach. Evidence exists to prove, as a matter of law, that time was a material element of the contract. Driver placed an initial bid with Mustang in October 1996, but it increased its bid significantly in January 1997 after learning of the April 30 deadline. The contract specifically stated that "all time limits stated in the Contract are of the essence to the Contract," and the 3 contract called for "100 percent completion of the pipeline system no later than April 30, 1997." In addition to the contract's emphasis on timely completion, it also required that "sufficient forces and equipment ... be furnished at all times to adequately perform work with ample margin for emergencies and unexpected events, to carry on the work at a sufficient rate of progress to ensure completion within the time specified in the Contract. " In late February 1997, when Mustang realized Driver was behind on the construction schedule, it asked for assurances from Driver that the work would be completed by the deadline. Although Driver had workers, equipment and supervision on the job site, it accomplished only minimal pipeline construction. Mustang also requested a plan from Driver on how it would finish the project by the end of April. It recognized the unseasonably wet conditions but offered suggestions to Driver about how it might expedite construction. The evidence indicates that Driver never provided a revised plan on how it would attempt to meet the construction schedule. When Mustang terminated the contract, it had approximately forty days before the April 30, 1997 deadline to complete construction on eighty-five miles of pipeline. Even the most ambitious of construction schedules would have great difficulty successfully meeting that deadline. At the point at which Mustang terminated the contract, there was virtually no chance that Driver would be able to cure its breach and complete the construction on time. Based on this evidence, we hold that as a matter of law Driver committed a material breach. Mustang was thereafter discharged from its duties under the contract. Therefore, the trial court should have ... granted Mustang judgment notwithstanding the verdict. ... Mustang also argues that the trial court erred by granting Driver's motion for judgment notwithstanding the verdict and entering a judgment that did not award Mustang any damages. The jury found Mustang suffered $ 2,104,601 in damages as a result of Driver's failure to comply with the pipeline contract. However, Driver argued that Mustang's evidence and expert testimony were legally insufficient because there was no evidence presented to show the amount paid was reasonable and necessary.. ... The party seeking to recover the cost of completion in a breach of contract case has the burden to prove that the damages sought are reasonable. ... Mustang directs us to testimony provided by its expert on damages to argue that it established that its damages were reasonable. Mustang's accountant addressed in detail the amount it spent to complete the work. However, while Mustang's expert testimony proved its out-of-pocket costs, such evidence alone did not establish that the damages were reasonable and necessary. ... In fact, the expert was careful to limit his opinion solely to what it cost Sunland to complete the contract, and not whether that contracted amount was a reasonable cost to build a pipeline. As this Court held in Gossett, however, "it is now well settled that proof of the amounts charged or paid does not raise an issue of reasonableness, and recovery of such expenses will be denied in the absence of evidence showing that the charges are reasonable." We agree ... that Mustang failed to provide evidence that its out-of-pocket costs were reasonable. ..., there was evidence that the contract entered with Sunland was substantially higher than what Sunland initially bid to obtain the job. Additionally, evidence was presented that the wet conditions existing in February and early March, when Driver had the contract, had improved considerably by April, when Sunland took over, suggesting that the cost to complete should have been less for Sunland. Yet Mustang presented no evidence that the amount it paid to Sunland under the contract was reasonable; in fact, as the court of appeals noted, Mustang's only attempt to admit such evidence came in the form of a proposed rebuttal witness.. ... We therefore hold that the trial court correctly granted Driver's motion for judgment 4 notwithstanding the verdict on that issue. ... Accordingly, we [grant Mustang's petition that there was a material breach by Driver and Driver's petition that Mustang did not prove their request for damages was reasonable, and also] render judgment that Driver take nothing. OPINION DELIVERED: April 23, 2004 End of Document **Judgement Notwithstanding the Verdict is when a party asks the court to enter a judgement in their favor, regardless that the original verdict was not in their favor. Here, Mustang argues that although the jury found both parties had breached the contract, the appeals court should find that only Driver had breached the contract and not Mustang.