Akram Mushtaha v. Tile Roofs of Texas ( 2014 )

Affirmed and Memorandum Opinion filed December 11, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00793-CV
AKRAM MUSHTAHA, Appellant
V.
TILE ROOFS OF TEXAS, Appellee
On Appeal from the 129th District Court
Harris County, Texas
Trial Court Cause No. 2010-31789
MEMORANDUM OPINION
This is an appeal from a final judgment rendered after a trial by jury. The
question is whether the evidence is legally and factually sufficient to support the
jury’s findings. For the reasons explained below, we conclude that the evidence is
sufficient, and we affirm the trial court’s judgment.
BACKGROUND
This case is a breach of contract action between a roofing company and a
homeowner. The primary dispute focuses on the installation of tile shingles in an
area of the roof known as the valley. The valley is the site where two planes of the
roof intersect and form a trough. A valley can be found wherever one portion of
the roof branches out from another on a perpendicular angle, such as a dormer. The
valley is sloped so that it may function as a conduit, collecting rainwater from the
sides of the roof and channeling it away from the structure. Its design is intended to
prevent rainwater from pooling.
A valley can be either open or closed. When a valley is open, its metal lining
is visible to the naked eye. When a valley is closed, the lining is covered by the
same material used to shingle the roof. Both methods of installation are accepted
within the industry.
As will be seen in this case, one advantage of having a closed valley system
is aesthetics: the shingles blend together seamlessly between all planes of the roof,
creating a uniform look. There is a disadvantage, however. Over time, the
functionality of a closed valley system can deteriorate in the presence of certain
environmental factors. If leaves, pine needles, or other debris accumulate in the
valley, they can impede the natural drainage of the roof. And in really bad cases,
this accumulation can cause rainwater to spill under the shingles adjacent to the
valley, causing the roof to leak.
Akram Mushtaha, the homeowner in this case, had a tile roof with a closed
valley system that was damaged by Hurricane Ike. Mushtaha entered into a
contract with Tile Roofs of Texas to replace the roof on his home. The contract
provided that the tile was to be installed “as per industry specifications” and that
the valleys were “to be open.” Mushtaha did not inquire into the meaning of these
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terms. His only concern during the negotiation stage was the cost of the project.
The parties bargained for a contract price of $102,000, with fifty percent due at
signing and the rest due upon completion.
During the demolition process, Tile Roofs found that Mushtaha’s closed
valley system had not been functioning properly. The valleys were heavily clogged
with dirt and debris. When the tile was removed, the plywood under the valleys
was rotting. The rot showed several years’ worth of water intrusion, which
predated Hurricane Ike. Tile Roofs replaced the plywood at no additional cost to
Mushtaha.
As the new tile was being installed, Mushtaha noticed that the valleys on his
new roof were not resembling the valleys on his old roof. Mushtaha demanded that
Tile Roofs change the valleys to make them closed. Tile Roofs explained to
Mushtaha that the valleys were being installed according to the terms of the
contract. Tile Roofs also advised that a closed valley system was not recommended
because Mushtaha lived in a wooded area with tall trees, and debris from those
trees had accumulated in the valleys and had caused his previous roof to leak.
Mushtaha complained as well about the appearance of the tiles at the edge of
his roof, in an area known as the rake. Mushtaha demanded that Tile Roofs
reinstall the rake tiles to make them appear as before. Tile Roofs responded that the
original installation of the rake tiles had been backwards. Tile Roofs explained that
installing the rake tiles in any manner contrary to the industry specifications would
cause the roof to leak, leading to the destruction of the fascia boards.
Mushtaha persisted, stating that he wanted his new roof to look exactly as
his old roof. Tile Roofs offered to redo the valleys as closed and to install the rake
tiles backwards, but only if Mushtaha paid for the extra labor and waived his
warranty by signing a letter acknowledging that he had requested the installation to
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be against the manufacturer’s instructions. Mushtaha refused the offer and ordered
Tile Roofs to leave his property.
At the time of the parties’ disagreement, the new roof was between eighty
and eighty-five percent complete. Mushtaha hired another roofing company to
finish the roof in the manner he desired. Tile Roofs was never invited back to the
premises, despite several attempts to resolve the parties’ dispute.
Tile Roofs filed this lawsuit, alleging a single cause of action for breach of
contract. Mushtaha counterclaimed, but the counterclaims were dismissed. At trial,
Tile Roofs produced evidence showing that it had spent $60,000 on labor and
materials, and that it would have realized a profit of $20,000 as of the time it was
ordered to stop working. Mushtaha responded that Tile Roofs had been installing
the new roof against industry standards, and he claimed that Tile Roofs had
repudiated the contract by choosing to walk away from the project.
The jury made the following findings: (1) Mushtaha failed to comply with
the contract; (2) Mushtaha’s failure to comply was not excused; and (3) Tile Roofs
was entitled to $27,500 in damages, plus attorney’s fees.
ISSUES PRESENTED
Mushtaha appears pro se on appeal, and he asserts several issues in his brief.
However, not all of the issues are presented in a manner that comports with the
Texas Rules of Appellate Procedure. For example, Mushtaha asserts early in his
brief that he intends to challenge the award of attorney’s fees and the striking of his
counterclaims, but there are no arguments on either point. Without arguments,
Mushtaha has failed to comply with the appellate briefing rules. Accordingly, we
overrule these points as inadequately briefed. See Tex. R. App. P. 38.1(i).
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We limit our review to the only issues that have been adequately presented:
whether the evidence is legally and factually sufficient to support the jury’s
findings on liability and damages.
ANALYSIS
A. Breach
We begin with the jury’s finding that Mushtaha failed to comply with the
terms of the contract. In a legal sufficiency challenge, we consider the evidence in
the light most favorable to the verdict, indulging every reasonable inference that
would support the challenged finding, crediting favorable evidence if a reasonable
factfinder could, and disregarding contrary evidence unless a reasonable factfinder
could not. See City of Keller v. Wilson, 168 S.W.3d 802, 819, 827 (Tex. 2005). We
will sustain a legal sufficiency challenge only when (1) there is a complete absence
of evidence of a vital fact, (2) the court is barred by rules of law or evidence from
giving weight to the only evidence offered to prove a vital fact, (3) the evidence
offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence
conclusively establishes the opposite of the vital fact. Id. at 810.
The record reflects that Mushtaha executed a contract with Tile Roofs to
replace his roof. After a dispute arose over the appearance of the new roof,
Mushtaha ordered Tile Roofs to stop working and leave his property. Mushtaha
never permitted Tile Roofs to reenter the property and finish the project, even
though Tile Roofs was willing and able to finish. Mushtaha also failed to pay Tile
Roofs any amount beyond the initial deposit. Based on this record, we conclude
that the evidence is legally sufficient to show that Mushtaha breached the contract.
See Tacon Mech. Contractors, Inc. v. Grant Sheet Metal, Inc., 899 S.W.2d 666,
670 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (“When one party to a
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contract, by wrongful means, prevents the other party from performing, this
interference with performance constitutes breach of contract.”).
Mushtaha argues next that the evidence is factually insufficient to support
the finding of breach. When a party challenges the factual sufficiency of a finding
for which he did not bear the burden of proof at trial, we review all of the evidence
in a neutral light and will reverse only if the evidence supporting the finding is so
contrary to the overwhelming weight of the evidence as to make the judgment
clearly wrong and manifestly unjust. See Maritime Overseas Corp. v. Ellis, 971
S.W.2d 402, 406–07 (Tex. 1998). Under this standard, we may not pass upon the
credibility of witnesses or substitute our judgment for that of the factfinder, even if
the evidence would clearly support a different result. Id. at 407.
Mushtaha contends that the evidence is factually insufficient because the
record shows that he was willing to pay for a new roof if Tile Roofs duplicated his
old roof. This point is a red herring. The contract did not provide for the
“duplication” of Mushtaha’s old roof. By expressly stating that the valleys would
be open rather than closed, the contract clearly indicated that the new roof would
look and function differently from the old roof. The contract also expressly stated
that the roof would be installed “as per industry specifications.” The jury was
asked to determine whether Mushtaha had breached this contract, and it is against
that question that we must measure the sufficiency of the evidence. See St. Joseph
Hosp. v. Wolff, 94 S.W.3d 513, 530 (Tex. 2003); Kamat v. Prakash, 420 S.W.3d
890, 899 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Mushtaha cannot show
that the jury’s finding of breach is clearly wrong and manifestly unjust because he
would have performed under a different contract.
Mushtaha argues next that the evidence is factually insufficient because the
contract is ambiguous, and when the contract is construed in his favor, the record
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shows that he did not fail to comply with it. Mushtaha believes that the contract is
ambiguous because the words “industry specifications” and “open” valleys are
undefined and capable of more than one reasonable interpretation. Even if we
assumed that the contract were ambiguous, Mushtaha’s understanding of the
parties’ intent was not conclusively established, and Mushtaha neither requested
nor submitted to the jury any fact question regarding the issue of intent. Mushtaha
waived any complaint about the contract’s alleged ambiguity. See Tex. R. Civ. P.
279; Tex. R. App. P. 33.1.
Mushtaha cites to no other evidence tending to show that he did not breach
the terms of the contract. We accordingly conclude that the jury’s finding in
support of breach is not so against the great weight and preponderance of the
evidence as to render the judgment clearly wrong and manifestly unjust.
B. Excuse
The second jury question asked, “Was Mushtaha’s failure to comply
excused?” The charge instructions provided that the “failure to comply by
Mushtaha is excused by Tile Roofs’ previous failure to comply with a material
obligation of the same Agreement.” The jury answered the question in the
negative. As before, Mushtaha asserts that the evidence is legally and factually
insufficient to support the jury’s finding.
Mushtaha had the burden at trial to demonstrate that his breach of contract
was excused. See Sassoon v. Thompson, No. 14-02-00154-CV, 2003 WL 358703,
at *3 (Tex. App.—Houston [14th Dist.] Feb. 20, 2003, pet. denied) (mem. op.).
When a party attacks the legal sufficiency of an adverse finding on an issue on
which he bears the burden of proof, the party must demonstrate on appeal that the
evidence establishes, as a matter of law, all vital facts in support of the issue. See
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In a “matter of law”
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challenge, the reviewing court must first examine the record for evidence that
supports the challenged finding, while ignoring all evidence to the contrary. Id. If
there is no evidence to support the finding, the reviewing court must then examine
the entire record to determine if the contrary proposition is established as a matter
of law. Id.
The evidence establishes that Tile Roofs did not fail to comply with a
material obligation of the contract. When it was fired from the jobsite, Tile Roofs
was installing the roof with open valleys, in accordance with the terms of the
contract. Tile Roofs was also installing the rake tiles in accordance with the
manufacturer’s directions. Viewing this evidence in the light most favorable to the
jury’s finding, we conclude that there is legally sufficient evidence to show that
Tile Roofs was performing under the contract and that Mushtaha had no excuse for
his breach.
When a party attacks the factual sufficiency of an adverse finding on an
issue on which he has the burden of proof, the party must demonstrate that the
adverse finding is so against the great weight and preponderance of the evidence as
to be clearly wrong and manifestly unjust. Id. at 242. Our scope of review includes
all evidence relevant to the adverse finding. Id.
Mushtaha asserts in his brief that his nonperformance was excused because
Tile Roofs “simply chose to stop working.” Mushtaha does not identify the date of
this alleged repudiation, but in his brief, he refers to a meeting in September 2009,
where the parties allegedly disagreed over funding matters and other work that had
already been completed. The brief contains no record citations in support of these
references, and we are not aware of any evidence that the meeting ever occurred.
The uncontroverted evidence showed that demolition of the old roof began in
October 2009 and installation of the new roof began in November 2009. Mushtaha
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does not explain how any conflicts could have arisen over the installation of the
new roof during a meeting held in September 2009.
Setting aside the timing of the alleged meeting, the record still fails to
establish Mushtaha’s claim that Tile Roofs “chose” to walk away from the project.
There is evidence that Tile Roofs was prepared to finish the project under the terms
of the contract, but Mushtaha completely refused. The record supports a finding
that Mushtaha fired Tile Roofs, not that Tile Roofs quit.
Mushtaha argues next that Tile Roofs materially breached the contract
because it was not installing the new roof according to industry standards.
Mushtaha produced evidence from an inspector that the new roof had inconsistent
spacing patterns between the tiles. The inspector testified that the ridge tiles were
installed with substantially varying heights above the surrounding tiles. The
inspector also expressed concerns over contact between the lead and copper
flashing, which could result in corrosion. Finally, the inspector commented that
Tile Roofs had appeared to be using old or damaged tar paper.
On cross-examination, the inspector established that he had no experience
installing roofs and that he had performed his inspection entirely from ground
level. Tile Roofs produced testimony showing that there may have been some
problems with the roof, but it asserted that these problems would have been
corrected on a final walkthrough had it been allowed to complete the job. This
opinion was shared by the contractor hired by Mushtaha to finish the roof with
closed valleys, who testified that Tile Roofs could have corrected the problems in
an appropriate manner upon a final walkthrough. The jury was free to accept this
evidence and find that Tile Roofs had not materially breached the contract when
Mushtaha ordered Tile Roofs to stop working. The jury’s finding that Mushtaha
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had no excuse for his failure to comply is not so against the great weight and
preponderance of the evidence as to be clearly wrong and manifestly unjust.
C. Damages
We finally address whether the evidence is legally and factually sufficient to
support the jury’s award of damages. The jury was asked to find “what sum of
money, if any, if paid now in cash, would fairly and reasonably compensate Tile
Roofs for its damages, if any, that resulted from Mushtaha’s failure to comply with
the Agreement.” The instructions further provided that the jury was to calculate
Tile Roofs’ lost contract profits as the measure of damages. Lost profits were
defined as “the amount Mushtaha agreed to pay Tile Roofs less (a) the expenses
Tile Roofs saved by not completing the job and (b) the amount paid to Tile Roofs
by Mushtaha.” The jury answered that Tile Roofs was entitled to recover $27,500
as a reasonable amount of damages.
The jury’s finding is amply supported by the evidence adduced at trial. The
undisputed evidence showed that Mushtaha paid $51,000 to Tiles Roofs before the
project began, with a promise that the remaining balance on the contract would be
paid when the project was completed. Tile Roofs produced additional evidence
showing that, when it was ordered to stop working on the project, it had spent
$60,000 on labor and materials, and it had accrued approximately $20,000 in profit
from the work already performed. Tile Roofs received no other payments after
being ordered to leave the job site.
Tile Roofs would have been fully compensated if at the time of breach it had
been paid $29,000, which is the difference between the value of services provided
to Mushtaha and the amount that Mushtaha had already paid to Tile Roofs
($60,000 + $20,000 − $51,000). The jury’s award was $27,500, which is slightly
less than that amount. As the trier of fact, the jury had the discretion to award
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damages within the range of evidence presented at trial, and it did so here. See
Howell Crude Oil Co. v. Donna Refinery Partners, Ltd., 928 S.W.2d 100, 108
(Tex. App.—Houston [14th Dist.] 1996, writ denied). The jury’s finding is
accordingly supported by legally sufficient evidence.
Mushtaha does not clearly explain how the evidence is factually insufficient
to support the jury’s finding. The only other figure discussed in his appellate brief
is the amount he paid to another roofing company to complete the project. This
evidence is irrelevant, however, because the jury was specifically instructed to
calculate Tile Roofs’ lost profits by deducting the expenses saved “by not
completing the job.” Without any controverting evidence to consider, we conclude
that the jury’s finding is supported by factually sufficient evidence.
CONCLUSION
The judgment of the trial court is affirmed.
/s/ Tracy Christopher
Justice
Panel consists of Chief Justice Frost and Justices Christopher and Busby.
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