Dudley Construction, LTD. v. Cross Roads Concrete Services, INC.

Court of Appeals
Tenth Appellate District of Texas

10-24-00225-CV

Dudley Construction, Ltd.,
Appellant

v.

Cross Roads Concrete Services, Inc.,
Appellee

On appeal from the
272nd District Court of Brazos County, Texas
Judge John L. Brick, presiding
Trial Court Cause No. 22-000952-CV-272

JUSTICE SMITH delivered the opinion of the Court.

MEMORANDUM OPINION

Dudley Construction, Ltd. appeals from the trial court’s judgment,

rendered after a trial before the court, in this breach of contract suit brought

by Cross Roads Concrete Services, Inc. In six issues, Dudley complains of the

trial court’s findings of fact and conclusions of law, the award of prejudgment

interest, and the trial court’s failure to properly interpret Dudley’s contractual

rights and to incorporate the terms of the parties’ Rule 11 Agreement into the
judgment. Because we agree the award of prejudgment interest is erroneous,

we modify the judgment to delete that award. We affirm as modified.

BACKGROUND

Dudley, as general contractor, contracted with the City of College Station

on a project to build an athletic complex. Cross Roads, a subcontractor on the

project, did not construct box culverts in accordance with the requirements for

the project. Rather than removal and replacement of the defective box

culverts, the City accepted an alternative repair technique. However, the City

initially wanted Dudley to furnish an eight-year extended warranty to correct

any future issues, backed up with a bond. Dudley demanded that Cross Roads

provide the warranty and bond. Cross Roads completed the alternative

repairs, but did not provide a warranty secured by a bond.

Concerned about Dudley’s potential liability to the City, Dudley withheld

payment to Cross Roads, waiting for Cross Roads to obtain a bond. Cross

Roads filed suit against Dudley for breach of contract and breach of fiduciary

duty due to nonpayment of amounts owed to Cross Roads. Dudley filed a

counterclaim for breach of contract.

A trial before the court was held in January 2023. The parties signed a

Rule 11 Agreement in February 2023 addressing Dudley’s concerns about

potential liability to the City. In the Agreement, Dudley agreed to provide

Dudley Constr., Ltd. v. Cross Roads Concrete Servs., Inc. Page 2
Cross Roads and the City a video of Dudley’s inspection of the culverts, and

Cross Roads agreed to obtain specified documents from the City. Cross Roads

was also to submit a maintenance agreement to the City for its approval. The

maintenance agreement was to be secured by a bond and was to end

on June 2, 2027, eight years after the box culvert was completed. The Rule 11

Agreement provided that, if the City failed to execute all of the documents

and/or does not accept the maintenance agreement, the parties will provide the

trial court with a report on the documents and any arrangements on the

maintenance agreement. Finally, the Rule 11 Agreement provided that “[t]he

Court will consider this written report in its ruling for judgment.”

In October 2023, the trial court granted Cross Roads’s motion to sever

and entered an order severing all of Dudley’s claims and causes of action

asserted in this matter against Cross Roads.

On January 8, 2024, the trial court signed a judgment in favor of Cross

Roads, ordering that Cross Roads recover from Dudley a total of $85,504.44

owed pursuant to the contract, prejudgment interest of 1.5% each month from

the date each of three payments was due until the date of the judgment,

attorney’s fees of $54,332.00, plus court costs, postjudgment interest, and

conditional attorney’s fees on appeal.

Dudley Constr., Ltd. v. Cross Roads Concrete Servs., Inc. Page 3
On January 11, 2024, Dudley filed a proposed final judgment, which the

court signed on January 31, 2024. In that judgment, the court again found in

Cross Roads’s favor and awarded it $85,504.44 pursuant to the contract but

awarded attorney’s fees of $35,792.00. This judgment awarded prejudgment

interest at the rate of 8.5%, beginning September 21, 2022, court costs, and

postjudgment interest at 8.5%, as well as conditional appellate attorney’s fees.

On February 5, 2024, the trial court signed an order setting aside the

January 8, 2024 judgment.

On March 15, 2024, the trial court signed its Findings of Fact and

Conclusions of Law. The court found and concluded that Dudley breached the

contract by failing to pay $10,025.93, $33,163.93, and $42,315.60, totaling

$85,505.46, and that Cross Roads shall recover attorney’s fees in the amount

of $54,330.00, prejudgment interest at the rate of 1.5% pursuant to Texas

Property Code Chapter 28, and conditional appellate attorney’s fees. The court

also concluded that Dudley’s actions violated Texas Property Code Sections

162.001 and 162.003.

On March 25, 2024, Dudley filed a request for amended and additional

findings of fact and conclusions of law complaining that the March 15 findings

and conclusions do not support the January 31 judgment. Although the

January 31 judgment finds in favor of Cross Roads, Dudley’s amended and

Dudley Constr., Ltd. v. Cross Roads Concrete Servs., Inc. Page 4
additional findings and conclusions would support a judgment finding Dudley

did not breach the contract, is not liable for breach of fiduciary duty, Chapter

28 does not apply to its project with the City, and Cross Roads failed to

adequately plead for prejudgment interest.

On April 18, 2024, the trial court signed an order setting aside the

January 31, 2024 judgment, noting in the order that the March 15, 2024

findings of fact and conclusions of law do not support the January 31 judgment.

The order also stated that the court will “sign the revised Judgment consistent

with the Court’s Findings of Fact and Conclusions of Law.”

Also on April 18, 2024, the trial court signed a judgment ordering that

Cross Roads recover from Dudley amounts totaling $85,504.44, accruing

prejudgment interest at the rate of 1.5% per month, attorney’s fees of

$35,792.00, court costs, postjudgment interest, and conditional appellate

attorney’s fees.

Finally, also on April 18, 2024, the trial court signed the Amended and

Additional Findings of Fact and Conclusions of Law submitted by Dudley on

March 25. As set out above, those findings and conclusions were in favor of

Dudley and therefore conflicted with the judgment of April 18.

Cross Roads filed a motion to vacate the Amended and Additional

Findings of Fact and Conclusions of Law because they do not support the relief

Dudley Constr., Ltd. v. Cross Roads Concrete Servs., Inc. Page 5
granted in the judgment. Similarly, on May 8, 2024, Dudley filed a request for

findings of fact and conclusions of law. About a week later, Dudley filed its

motion for new trial asserting that “the repeated procedural defects and

process in handling these postjudgment submissions have prejudiced Dudley’s

appellate rights.” Dudley asked the court to vacate the April 18, 2024

judgment and enter a new judgment that comports with the Amended and

Additional Findings of Fact and Conclusions of Law. The trial court rendered

no further orders, and Dudley filed its notice of appeal.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In its first issue, Dudley asserts that the judgment must be reformed or

reversed because it does not conform to the Amended and Additional Findings

of Fact and Conclusions of Law signed on the same day. In its second issue,

Dudley contends alternatively that if this Court interprets the trial court’s

actions as having failed to make findings of fact and conclusions of law

applicable to the April 18 judgment, that failure is error.

Dudley cites to the general rule that findings of fact and conclusions of

law filed after a judgment are controlling if there is any conflict between them

and the judgment, if there is any evidence in the record to support the findings.

See City of Laredo v. R. Vela Exxon, Inc., 966 S.W.2d 673, 678 (Tex. App.—San

Antonio 1998, pet. denied). Dudley therefore asserts the April 18 Amended

Dudley Constr., Ltd. v. Cross Roads Concrete Servs., Inc. Page 6
and Additional findings and conclusions are controlling. The general rule

notwithstanding, due to the procedural history of this case, the question

requires further scrutiny.

In Waters v. Yockey, 192 S.W.2d 769 (Tex. 1946), the trial court filed two

conflicting sets of findings and conclusions after rendition of a single judgment.

The Supreme Court had to determine which set controlled before it could

determine if there was a conflict between the findings and judgment. The

Court explained that if the trial judge intended the second set to supplement

the first set, to be construed together, then no judgment could be based on the

findings because they “are materially in conflict.” Id. at 769. But if the trial

court intended the second set of findings to be substituted for the first set of

findings, then the first set of findings must be disregarded, and judgment

should be based on the second set of findings. Id. In reviewing the trial court’s

findings and conclusions in this case, we determine, as did the Waters court,

that “[t]he problem presented involves merely the ascertainment of the

intention of the trial judge.” Id.

Procedurally, the case before us traveled a more erratic path than

Waters. There, two sets of conflicting findings and conclusions were filed after

a single judgment. Here, a judgment was rendered, a second judgment was

rendered, the first judgment was set aside, findings and conclusions were

Dudley Constr., Ltd. v. Cross Roads Concrete Servs., Inc. Page 7
signed, the second judgment was set aside, then a third judgment was

rendered, and finally, a second set of findings and conclusions was signed. The

trial court’s April 18 order setting aside the second judgment indicated the trial

court’s intention to sign a revised judgment consistent with the March 15

findings and conclusions. Therefore, that order is tantamount to a

reaffirmance of the March 15 findings and conclusions. Yet, on the same date,

the trial court signed Dudley’s Amended and Additional findings and

conclusions, creating a conflict between the two sets of findings. We apply the

Waters rationale to determine which set of findings and conclusions the trial

court intended to rely on in support of the judgment.

In each of the three judgments, the trial court found that Dudley

breached its contract with Cross Roads. The April 18 order setting aside the

January 31 judgment indicates that the March 15 findings of fact and

conclusions of law favoring Cross Roads were correct. Moreover, with the

exception of dollar amounts awarded, there is no difference between the

March 15 findings of fact and conclusions of law and the April 18 judgment,

which favors Cross Roads. In contrast, Dudley’s Amended and Additional

Findings of Fact and Conclusions of Law, which when filed addressed the

January 31 judgment, would not support a judgment in favor of Cross Roads.

In the April 18 order setting aside the January 31 judgment, the trial court

Dudley Constr., Ltd. v. Cross Roads Concrete Servs., Inc. Page 8
indicated its intention to sign a judgment that accurately reflected the findings

of fact and conclusions of law signed on March 15. We cannot conclude that

the trial court intended the second set of findings should be substituted for the

first set of findings, and that the second set should control in the disposition of

the case. Instead, we conclude that the trial court’s April 18 Amended and

Additional Findings of Fact and Conclusions of Law were the result of a

mistake. Therefore, the April 18 Amended and Additional Findings of Fact

and Conclusions of Law must be disregarded. See id. The April 18 judgment

conforms to the March 15 findings of fact and conclusions of law as intended

by the trial court. We overrule Dudley’s first and second issues.

PREJUDGMENT INTEREST

In its third issue, Dudley asserts the trial court erred by awarding

prejudgment interest according to the Texas Property Code’s Prompt Payment

Act. Dudley argues that statute does not apply to a public works project

pursuant to a government contract. Furthermore, Dudley asserts that Cross

Roads failed to properly plead for statutory prejudgment interest. In its fourth

issue, Dudley asserts that Cross Roads may not recover equitable prejudgment

interest because Cross Roads did not plead for such interest.

An appellate court reviews a trial court’s prejudgment interest award

under an abuse of discretion standard. See Bufkin v. Bufkin, 259 S.W.3d 343,

Dudley Constr., Ltd. v. Cross Roads Concrete Servs., Inc. Page 9
356 (Tex. App.—Dallas 2008, pet. denied). To determine if there was an abuse

of discretion, we must decide if the lower court acted without reference to any

guiding rules or principles. Id.

Prejudgment interest may be awarded pursuant to an enabling statute

or general principles of equity. See Johnson & Higgins of Tex., Inc. v. Kenneco

Energy, Inc., 962 S.W.2d 507, 528 (Tex. 1998). Where a breach of contract

claim does not fall within any enabling statute, equitable principles govern the

award of prejudgment interest. See Trevino v. City of Pearland, 531 S.W.3d

290, 297 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Statutory interest

may be predicated on a prayer for general damages. Benavidez v. Isles Constr.

Co., 726 S.W.2d 23, 25 (Tex. 1987). Where prejudgment interest is sought at

common law as an element of the damages, a plaintiff must plead for it. Id.

In its petition, Cross Roads presented claims for breach of contract and

breach of fiduciary duty. In addition to a request for damages, it pleaded for

“interest as allowed by law.” In its March 15 conclusions of law, the trial court

concluded that “[p]ursuant to Prompt Payment Act, Texas Property Code

Chapter 28, Cross Roads is entitled to recover prejudgment interest at the rate

of 1.5% each month which accrues from the date that each draw was due until

entry of the judgment.” The April 18 judgment applied the prejudgment

interest scheme set out in the Prompt Payment Act, ordering that Cross Roads

Dudley Constr., Ltd. v. Cross Roads Concrete Servs., Inc. Page 10
recover from Dudley prejudgment interest of 1.5% each month from the date

three separate payments were due until the date of the judgment.

Cross Roads did not plead a cause of action based on the Texas Property

Code’s Prompt Payment Act. See TEX. PROP. CODE ANN. §§ 28.001-28.010.

After rendition of the January 31, 2024 judgment, Cross Roads filed a “Motion

to Reconsider and Reform the Judgment Dated January 31, 2024 or

Alternatively a New Trial” in which it argued that the Act applied and it was

entitled to prejudgment interest pursuant to that Act. We disagree.

Section 28.002 requires an “owner” to promptly pay a contractor for work

performed pursuant to a contract, and it requires contractors to promptly pay

subcontractors for their work upon receipt of payment from the owner. Id.

§ 28.002(a), (b). The Act defines “owner” as a person or entity, other than a

governmental entity, with an interest in real property that is improved, for

whom an improvement is made, and who ordered the improvement to be made.

Id. § 28.001(4). Dudley, as general contractor, contracted with the City of

College Station, a governmental entity. Therefore, the property code’s Prompt

Payment Act does not apply.

Cross Roads pleaded a breach of contract claim but has not asserted, in

its petition or briefing, that the contract at issue contains a provision allowing

it to recover prejudgment interest or that it is entitled to prejudgment interest

Dudley Constr., Ltd. v. Cross Roads Concrete Servs., Inc. Page 11
on the basis of equity. See Benavidez, 726 S.W.2d at 25. We conclude that the

trial court abused its discretion in awarding prejudgment interest to Cross

Roads. See Bufkin, 259 S.W.3d at 356. Accordingly, we delete the award from

the trial court’s judgment. We sustain Dudley’s third and fourth issues.

DUDLEY’S CONTRACTUAL RIGHTS

In its fifth issue, Dudley asserts that pursuant to its contract with Cross

Roads Dudley has the right to withhold funds as necessary to protect Dudley

from loss. Dudley cited to the record and opined that it had to withhold funds.

Dudley’s final paragraph under issue five states as follows:

The evidence is legally and factually insufficient to support
any finding, express or implied, that Dudley breached its
agreement with Cross Roads by not making the payments
demanded by Cross Roads. The evidence establishes as a matter
of law that Dudley had the authority to withhold the funds from
Cross Roads. The trial court abused its discretion in failing to
correctly interpret the contractual provisions which provide
Dudley with the authority to withhold the funds demanded by
Cross Roads.

Texas Rule of Appellate Procedure 38.1(i) requires that an appellant’s

brief “contain a clear and concise argument for the contentions made, with

appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(i).

Even though we must construe briefing requirements reasonably and liberally,

a party asserting error on appeal still must put forth some specific argument

and analysis showing that the record and the law support its contentions. San

Dudley Constr., Ltd. v. Cross Roads Concrete Servs., Inc. Page 12
Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston [14th

Dist.] 2005, no pet.). The failure to provide appropriate record citations,

argument and a substantive analysis waives an appellate issue. Ross v. St.

Luke’s Episcopal Hosp., 462 S.W.3d 496, 500 (Tex. 2015). A point that is merely

an abstract proposition of law or a general complaint about the trial court’s

actions is too general and indefinite to merit review. Pac. Emp’rs Ins. Co. v.

Dayton, 958 S.W.2d 452, 455 (Tex. App.—Fort Worth 1997, pet. denied).

Although Dudley cited to the record, it failed to cite to authority or

provide a substantive analysis. Dudley did not tie its contractual theory to

contract construction law or accurately articulate and apply the appropriate

standard of review. Dudley has waived its fifth issue, which we accordingly

overrule. See Ross, 462 S.W.3d at 500.

THE RULE 11 AGREEMENT

In its sixth issue, Dudley contends the trial court abused its discretion

by failing to incorporate the protections contemplated in the parties’ Rule 11

Agreement. It asserts that its proposed remedy was for Dudley to continue to

withhold payment to secure against necessary repairs until June 2, 2027, or

until Cross Roads provided a warranty secured by a bond. Dudley argues that

the trial court’s failure to adopt Dudley’s proposed remedy constituted a

fundamental change in the contractual positions of the parties.

Dudley Constr., Ltd. v. Cross Roads Concrete Servs., Inc. Page 13
In the Agreement, Dudley agreed to provide the City and Cross Roads

with a video of its January 23, 2020 inspection of the culverts, and Cross Roads

agreed it would obtain certain documents from the City. The Agreement

further provided that if the City fails or refuses to execute all of the documents

and/or the City does not accept the maintenance agreement and bond provided

by Cross Roads by a specified date, “the attorneys will provide the Court with

a written report on the documents executed by the City and any arrangements

on the Cross Roads’s maintenance agreement with bond. The Court will

consider this written report in its ruling for judgment.” The Agreement was

signed on February 10, 2023.

A trial court has a ministerial duty to enforce a valid Rule 11 Agreement.

See Shamrock Psychiatric Clinic, P.A. v. Tex. Dep’t of Health and Human

Servs., 540 S.W.3d 553, 560 (Tex. 2018) (per curiam). A trial court’s decision

regarding enforcement of a Rule 11 Agreement is reviewed for abuse of

discretion. See Mantas v. Fifth Ct. of Appeals, 925 S.W.2d 656, 659 (Tex. 1996)

(orig. proceeding) (per curiam).

Here, the City did not agree to execute any of the documents referenced

in the Agreement. The City was not a party in this case and could not be forced

to execute any of the documents presented to it. Under the terms of the

Agreement, the trial court was to “consider” the report provided by the parties’

Dudley Constr., Ltd. v. Cross Roads Concrete Servs., Inc. Page 14
attorneys. The trial court was under no obligation to render a judgment that

would adopt Dudley’s proposed remedy. Based on the wording of the

Agreement, the trial court did not fail to enforce it. Dudley has shown no abuse

of discretion regarding the Rule 11 Agreement. See id. We overrule Dudley’s

sixth issue.

CONCLUSION

Because we determine that the Amended and Additional Findings of

Fact and Conclusions of Law must be disregarded, the trial court’s judgment

need not be reformed to conform with those findings and conclusions. Further,

the trial court did not abuse its discretion regarding enforcement of the parties’

Rule 11 Agreement. However, because the trial court erred in awarding

prejudgment interest to Cross Roads, we delete the portions of the April 18,

2024 judgment awarding accrued prejudgment interest of 1.5% each month

from the date each of three payments were due until the date of the judgment.

As modified, we affirm the trial court’s judgment.

STEVE SMITH
Justice

Dudley Constr., Ltd. v. Cross Roads Concrete Servs., Inc. Page 15
OPINION DELIVERED and FILED: October 2, 2025
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed as Modified
CV06

Dudley Constr., Ltd. v. Cross Roads Concrete Servs., Inc. Page 16