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Burlington Northern Railroad Company v. General Projection Systems. Inc.5/2/2000
each of contract claim and remand it to the trial court for further proceedings.
Finally, Amwest's liability as surety on GPS's performance bond is derivative of GPS's liability. Thus, we also sustain Burlington's ninth point of error, reverse the judgment concerning Burlington's third-party action against Amwest, and remand that claim to the trial court for further proceedings. See Brown v. Oaklawn Bank, 718 S.W.2d 678, 681 (Tex. 1986) (generally, liability of surety on a bond exists as a matter of law, whenever the liability of the defendant is established); cf. Wright Way Constr. Co. v. Harlingen Mall Co., 799 S.W.2d 415, 426 (Tex. App._Corpus Christi 1990, writ denied) (if principal appeals and acquires a reversal, judgment against nonappealing surety is also reversed).
In its second point of error, Burlington complains the evidence is legally and factually insufficient to support the jury's award of contract damages. In light of our disposition of Burlington's first point of error, we need not consider this point. See Tex. R. App. P. 47.
Tort Claims
In its third point of error, Burlington contends the trial court erred in denying its motion for judgment notwithstanding the verdict and its motion for new trial because GPS's complaints against Burlington sound in contract alone. In addition to its allegation that Burlington breached the contract, GPS alleged that after termination of the contract Burlington converted and negligently handled GPS's property. Burlington maintains that GPS's tort claims sound only in contract because whether Burlington was entitled to possession of the property depended solely on whether Burlington had breached a duty created by the contract.
To determine whether a plaintiff's claim is a mere breach of contract claim, we look to see whether the conduct complained of would give rise to liability independent of the fact that a contract existed between the parties. See Southwestern Bell Telephone Co. v. Delanney, 809 S.W.2d 493, 494 (Tex. 1991). If the defendant's conduct would give rise to liability without regard to the parties' agreement, the plaintiff's claims may sound in tort. If, on the other hand, the defendant's conduct only gives rise to liability because it breaches the parties' agreement, the plaintiff's claims only sound in contract. Id. In addition, when determining whether a claim is actionable in both contract and tort, we examine the nature of the plaintiff's losses. When a plaintiff's only losses are to the subject matter of the contract, the plaintiff's action is ordinarily one for breach of contract. Id.
Here, GPS's ownership rights in the property allegedly converted did not arise from the contract. Although Burlington's asserted defense to GPS's tort claims was based on contract provisions permitting it (under certain circumstances) to retain GPS's equipment and materials for completion of the project, GPS's conversion claim is not dependent on the existence of any contract. Thus, Burlington's conversion of GPS's equipment would give rise to liability independent of the contract.
In addition, as tort damages, GPS sought to recover for the loss of use of the property during the time period Burlington had it, loss of property never returned to GPS, and the value of computer files that were or could have been accessed or copied. As contract damages, GPS sought to recover the amount of money it would have made if it had completed the project. Thus, GPS's damages for conversion and negligence were separate and distinct from the losses it claimed because Burlington terminated the contract. Accordingly, we conclude that GPS's conversion and negligence claims did not sound only in con
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