Wallace Roofing, Inc. and Royce Dean Wallace v. Linda Benson ( 2013 )


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  •       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    NO. 03-11-00055-CV
    Wallace Roofing, Inc. and Royce Dean Wallace, Appellants
    v.
    Linda Benson, Appellee
    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
    NO. D-1-GN-09-002685, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING
    MEMORANDUM OPINION
    Appellant Wallace Roofing, Inc. (Wallace Roofing) brought suit against appellee
    Linda Benson (Benson) for breach of contract alleging she had failed to pay money owed
    on a contract for roofing and home repairs. Benson brought counterclaims under the Texas Debt
    Collection Practices Act (TDCPA), a tie-in statute to the Deceptive Trade Practices Act (DTPA),
    alleging that Wallace Roofing’s unlawful debt collection practices had caused her mortgage company
    to cancel a closing on a loan to refinance the mortgage on her homestead. After a two-day bench
    trial, the trial court found in favor of Wallace Roofing on its breach of contract claim and awarded
    $255.77 in damages, but also found in favor of Benson on her counterclaims and awarded her
    $20,000 in damages and $25,000 in attorneys’ fees. See Tex. Bus. & Com. Code §§ 17.01–17.926.
    Wallace Roofing appeals, contending: (1) there is insufficient evidence to support the trial court’s
    damages award for either party; (2) there is insufficient evidence to support the trial court’s
    finding that Wallace Roofing knowingly violated the DTPA; (3) the trial court erred in denying
    its claim to foreclose on a constitutional lien against Benson’s homestead; and (4) the trial court
    abused its discretion in denying Wallace Roofing’s claim for attorneys’ fees. We affirm the
    trial court’s judgment.
    BACKGROUND
    On June 14, 2005, Benson entered into a contract with Wallace Roofing to
    repair the roof on her home after an agent for the company visited her home unsolicited and
    obtained permission to inspect her roof for storm damage. The contract triggered an initial check
    from Benson’s home insurer in the amount of $5,655.77. The check was made payable to Benson,
    but Benson testified that her insurer instructed her to deposit the check and then pay the sum
    to Wallace Roofing with personal checks as payments were due. Benson deposited the check,
    but Wallace Roofing did not contact her again until September, when a second agent for the
    company—Jeff Anthony—visited her home and informed her she would need to renegotiate her
    contract because the prior agent who had negotiated her contract was no longer with the company.
    Benson signed a second contract with Wallace Roofing on September 1, 2005, which
    was executed by Jeff Anthony in his capacity as an authorized agent for Wallace Roofing. The
    second contract was written on the same pre-printed Wallace Roofing form as the first contract but
    contained additional work items for painting and repairing the gutters, deck, and window screens.
    In addition, the second contract contained a hand-written notation that Benson agreed to pay “per
    the claims adjustor agreement” and that the “contract is null and void unless insurance carrier pays
    100% for all storm damage.” Benson testified Anthony wrote the notations after she informed him
    she was unemployed and could not afford to pay her deductible, and he promised Wallace Roofing
    2
    would waive her deductible and she would not pay any out-of-pocket expenses. Benson additionally
    signed a form giving Wallace Roofing the authority to directly negotiate with her insurance carrier.
    After Benson signed the second contract, her home insurer issued two additional
    checks for her claim in the amounts of $9,012.60 and $2,349.33. In total, including its initial
    payment to Benson for $5,655.77, Benson’s home insurer paid $17,017.70 for the claim.1 With
    regard to the last two insurance checks, it is undisputed that these checks were made payable to and
    deposited by Wallace Roofing. In dispute, however, was whether Benson paid Wallace Roofing the
    $5,655.77 from the initial insurance check and whether she owes Wallace Roofing the additional
    $3,300, i.e., the amount of the deductible under her policy.
    1.     Payments Made by Benson
    With regard to the initial insurance check for $5,655.77 deposited by Benson, both
    parties agree she paid from that check the following contract-related expenses: (1) a personal check
    Benson wrote to Wallace Roofing in the amount of $3,500; and (2) $300 spent by Benson for
    supplies and other contract expenses. The parties, however, disagreed at trial as to whether Benson
    should receive credit for two personal checks in the amounts of $1,300 and $300 which she
    made payable to Wallace Roofing’s agent, Jeff Anthony, with the notation “roofing.” According to
    Benson, Anthony presented her with invoices for the roofing repairs, requested that she make the
    checks payable to him personally, and presented her with a hand-written receipt reflecting the
    1
    Although Benson entered into two contracts with Wallace Roofing, no work was performed
    under the first contract and her insurer processed the work as a single claim. Insurance records
    show that the initial payment received and deposited by Benson was for work performed by
    Wallace Roofing under the second contract.
    3
    payments. Wallace Roofing denied ever receiving the receipt or checks but admitted at trial that it
    was aware Anthony had collected and failed to turn over payments from other clients.
    2.     Notice of Outstanding Debt
    The parties also dispute whether Wallace Roofing gave Benson notice of any
    remaining debt under the contract. In December 2005, Royce Dean Wallace (Wallace), the
    president and manager of Wallace Roofing, visited Benson’s home after the roof work was complete.
    Benson testified that during this meeting she gave Wallace a copy of the receipt showing she had
    paid $1,600 directly to Anthony for roofing expenses. According to Benson, Wallace acknowledged
    the payments and made no demand for further payment. Wallace, on the other hand, testified that
    Benson did inform him she had already paid Anthony $5,400 on the account but did not provide him
    with the receipt or inform him the checks had been made payable to Anthony personally.
    In February 2006, Wallace again visited Benson’s home. According to Benson,
    Wallace asked her for the last insurance check during this visit and then left without asking for
    further payment. Wallace testified that he did ask for the insurance check, but also asked Benson
    to pay the remaining balance on her account. Wallace did not testify as to the amount of money he
    demanded from Benson during this exchange.
    In March 2006, a Wallace Roofing employee contacted Benson asking her to
    submit an affidavit stating that she had written personal checks to Jeff Anthony for roofing repairs
    made by Wallace Roofing. Benson testified that the secretary informed her the company needed
    the affidavit to collect the money from Anthony. Benson testified that she signed the affidavit
    and promptly sent it to Wallace Roofing. Wallace Roofing, however, claims to have no record of
    receiving the affidavit.
    4
    The following month, on April 20, 2006, Wallace Roofing mailed Benson a
    demand letter sent certified mail, return receipt requested. The letter, however, was returned to
    Wallace Roofing as “unclaimed,” and Benson denied receipt of the letter. The demand letter claimed
    that Benson had a remaining balance on her account of $5,220.10. While there is dispute between
    the parties as to the amount Benson owed on her contract, Wallace Roofing concedes that it
    miscalculated the amount due in the demand letter by failing to credit Benson’s account with the
    final payment it had received from her insurer in the amount of $2,349.33. The demand letter also
    did not credit Benson’s account with the $1,600 she had paid directly to Anthony.
    On June 16, 2009, after taking no action on the account for more than three years,
    Wallace Roofing filed a statutory mechanic’s lien against Benson’s homestead for $5,220.10. At
    trial, Wallace Roofing admitted that the lien was filed past the statute of limitations and without
    notice to Benson. Wallace Roofing also admitted at trial that—at the time it filed the lien—it had
    in its possession documents showing that it had failed to credit Benson’s account with the $2,349.33
    insurance check it had received. Wallace Roofing’s lien also did not credit Benson’s account with
    the $1,600 she had paid directly to Anthony.
    3.     Wallace Roofing’s Lawsuit and Benson’s Failed Refinance
    On August 18, 2009, Wallace Roofing filed suit against Benson for breach of contract
    seeking $5,220.10 in damages. Wallace Roofing did not serve Benson with the suit. Unbeknownst
    to Wallace Roofing, that same week, on August 20, 2009, Benson was scheduled to close on a
    loan to refinance the existing mortgage on her homestead. Benson testified that the first time she
    learned of any claim of outstanding debt to Wallace Roofing was an hour before her closing when
    the mortgage company informed her that Wallace Roofing had placed a lien on the property that
    5
    would prevent the refinance. The loan officer for the refinance testified the sole reason the closing
    was canceled was because Wallace Roofing had filed a lien against the property. After learning of
    the canceled closing, Benson testified that she immediately contacted Wallace Roofing and
    was informed by Wallace Roofing’s attorney that she would have to pay $5,220.10 to settle her
    account and release the lien. Benson refused to pay, but after being contacted by Benson’s attorney,
    Wallace Roofing agreed to release the statutory mechanic’s lien. After Wallace Roofing released
    the statutory mechanic’s lien, the mortgage company agreed to move forward with the refinance and
    rescheduled the closing.
    After releasing the lien, however, Wallace Roofing immediately amended their
    pleadings to add a constitutional lien claim against Benson’s homestead, and on the following
    day—August 21, 2009—Wallace Roofing’s attorney forwarded the amended pleading and a
    notice of lis pendens to the title company.2 That same day Benson was traveling to her second
    scheduled closing when the mortgage company contacted her to cancel. According to Benson,
    the mortgage company informed her they would not be able to refinance her home because of
    the Wallace Roofing lawsuit and the constitutional lien claim. The loan officer for the refinance
    testified that the sole reason the refinance did not occur was because Wallace Roofing had filed
    the lawsuit against Benson. The loan officer, however, was not aware of the specific claims at
    2
    In its findings of fact, the trial court found that Wallace Roofing sent the title company
    a copy of the suit and notice of a statutory mechanic’s lien against Benson’s homestead. Wallace
    Roofing complains in its third issue on appeal that it actually sent notice of its constitutional lien
    claim and not a statutory mechanic’s lien. We agree. The record shows that at the time Wallace
    Roofing sent the lis pendens, it had already released its statutory mechanic’s lien against Benson and
    sent the lis pendens to provide notice of its newly-asserted constitutional lien claim.
    6
    issue in the Wallace Roofing suit and acknowledged that any lawsuit in which Benson was the
    defendant—whether it was related to the property or not—could have prevented the refinance.
    After the second closing was canceled, Benson brought counterclaims against
    Wallace Roofing alleging it knowingly violated the TDCPA, a tie-in statute to the DTPA, by
    misrepresenting the amount of her debt and using false representations and deceptive means to
    collect a debt.3 See Tex. Fin. Code §§ 392.304(a)(8),(19) (TDCPA causes of action), 392.404(a)
    (violation of TDCPA is deceptive trade practice actionable as DTPA violation).              At trial,
    Benson’s damages evidence rested primarily on her failed refinance. Benson testified that she
    had twelve years and ten months remaining on her thirty-year mortgage and that her monthly
    payment was $1,305.13. If Benson had been able to refinance, according to the good faith
    estimate, she would have reduced her monthly payment to $715.61 and changed the length of her
    loan to fifteen years. Accordingly, the total payment remaining on her thirty-year mortgage was
    $200,990.02 (154 monthly payments x $1,305.13), but the refinance would have reduced her total
    payment to $128,809.80 (180 months x $715.61). Benson further testified that she was hysterical
    after the mortgage company canceled her refinance and had seen a doctor for stress and insomnia.
    She testified extensively as to her financial troubles and how the refinance would have significantly
    relieved her financial pressure by reducing her monthly mortgage payment. The loan officer testified
    that Benson had subsequently attempted to apply for another refinance loan but did not qualify
    because of new stricter lending guidelines.
    3
    Benson also alleged claims under section 392.301 of the Finance Code. See Tex. Fin. Code
    § 392.301(a)(3),(8) (prohibiting debt collector from representing to any person that a consumer is
    willfully refusing to pay a nondisputed debt when consumer has notified debt collector in writing
    that debt is disputed and from threatening to take an action prohibited by law). These claims were
    dismissed on summary judgment.
    7
    4.     Judgment
    The trial court ruled in favor of Wallace Roofing on its breach of contract claim but
    awarded only $255.77 in damages and no attorneys’ fees. In calculating the amount of damages, the
    trial court impliedly found that Benson’s account should be credited with payments she made to
    Anthony and that she was not required under the contract to pay Wallace Roofing the amount of
    her deductible. For Benson’s DTPA counterclaims, the trial court found in her favor and awarded
    her $15,000 in actual damages, $5,000 in emotional damages, and $25,000 in attorneys’ fees for trial
    and appeal of the case. In its findings of fact, the trial court found that Wallace Roofing failed to
    provide Benson notice of its claim, misrepresented the amount of debt owed, and that the scheduled
    closing on Benson’s refinance was canceled due to the actions of Wallace Roofing.
    DISCUSSION
    Damages for Failed Refinance
    1.     Standard of Review
    It its first and second issues on appeal, Wallace Roofing contends there is no evidence
    or insufficient evidence that it committed any DTPA violation that caused Benson’s refinance to fail,
    and therefore, it is not liable for any amount of damages resulting from the failed refinance. Because
    Wallace Roofing attacks the legal sufficiency of an adverse finding on which it did not have the
    burden of proof, it must demonstrate on appeal that there is no evidence to support the finding.
    Croucher v. Croucher, 
    660 S.W.2d 55
    , 58 (Tex. 1983). “When reviewing a no-evidence point, we
    must view the evidence in a light that tends to support the finding of the disputed fact and disregard
    all evidence and inferences to the contrary.” Lenz v. Lenz, 
    79 S.W.3d 10
    , 13 (Tex. 2002). “Anything
    8
    more than a scintilla of evidence is legally sufficient to support the finding.” Continental Coffee
    Prods. Co. v. Cazarez, 
    937 S.W.2d 444
    , 450 (Tex. 1996).
    In reviewing Wallace Roofing’s factual sufficiency challenge to the trial court’s
    findings, we must examine the entire record to determine if there is some probative evidence
    to support the finding, and, if there is, we must determine whether the evidence supporting
    the finding is so weak or the answer so contrary to the overwhelming weight of the evidence as
    to be clearly wrong and manifestly unjust. McMillin v. State Farm Lloyds, 
    180 S.W.3d 183
    , 201
    (Tex. App.—Austin 2005, pet. denied); see also Raw Hide Oil & Gas, Inc. v. Maxus Exploration
    Co., 
    766 S.W.2d 264
    , 275 (Tex. App.—Amarillo 1988, pet. denied). We may not reverse
    merely because we conclude that the evidence preponderates toward a different answer. 
    McMillin, 180 S.W.3d at 201
    .
    2.     Were Wallace Roofing’s DTPA violations a producing cause of Benson’s failed
    refinance?
    The DTPA allows a plaintiff who prevails on a violation based on a tie-in statute
    to prove and recover any actual damages she suffers. See Tex. Bus. & Com. Code § 17.50(h).
    Damages resulting from a refinance may be compensable as actual damages. See, e.g., Smith v.
    Santander Consumer USA, Inc., 
    703 F.3d 316
    , 318 (5th Cir. 2012) (sufficient evidence to support
    actual damages award when consumer suffered increased interest rate on refinance resulting from
    consumer finance company’s erroneous credit rating report); K & N Builder Sales, Inc. v. Baldwin,
    No. 14-12-00012-CV, 
    2013 WL 1279292
    , *7 (Tex. App.—Houston [14th Dist.] March 28, 2013,
    pet. denied) (mem. op.) (sufficient evidence to support actual damages award for failed refinance
    when plaintiff’s testimony demonstrated the loss of a specific, applied-for mortgage transaction that
    9
    was defeated by discovery of defendant’s invalid lien); compare Jackson Law Office, P.C.
    v. Chappell, 
    37 S.W.3d 15
    , 29–30 (Tex. App.—Tyler 2000, pet. denied) (jury’s failure to find
    refinance damages for DTPA violations upheld when plaintiff failed to prove interest rates on current
    mortgage and refinance).
    In this case, there is sufficient evidence to support the trial court’s findings that
    Benson’s refinance was canceled due to the actions of Wallace Roofing and that Benson suffered
    damages. It is undisputed that Benson had applied and been approved for a specific refinance loan,
    the loan would have significantly reduced Benson’s mortgage payments, she was unable to
    qualify for another refinance loan because of new stricter lending guidelines, and the “sole reason”
    the refinance was canceled was because of Wallace Roofing’s lawsuit and lien claims against
    Benson’s homestead.
    In order to prevail on a DTPA claim, however, a party must establish that a
    defendant’s specific DTPA violation was a producing cause of the claimant’s injury. See Tex. Bus.
    & Com. Code § 17.50(a) (to recover damages under DTPA, deceptive trade practice must be
    a producing cause of consumer’s damages); see also Doe v. Boys Clubs of Greater Dallas, Inc.,
    
    907 S.W.2d 472
    , 478 (Tex. 1995). To establish producing cause, the plaintiff must show the
    defendant’s DTPA violations were: (1) a substantial factor in bringing about the injury, and (2) a
    cause-in-fact of the plaintiff’s injuries, such that the injury would not have occurred but for the
    defendant’s acts or omissions. See Ford Motor Co. v. Ledesma, 
    242 S.W.3d 32
    , 46 (Tex. 2007).
    It is not necessary to show that an injury was foreseeable to establish producing cause. Boys Clubs
    of Greater Dallas, 
    Inc., 907 S.W.2d at 481
    .
    10
    In this suit, Benson brought two DTPA claims against Wallace Roofing for
    violations of the TDCPA: (1) misrepresenting the character, extent, or amount of a consumer
    debt, or misrepresenting the consumer’s debt status in a judicial or governmental proceeding;
    and (2) using any other false representation or deceptive means to collect a debt. See Tex. Fin. Code
    § 392.304(a)(8), (19). The trial court found in favor of Benson on all DTPA claims and awarded
    damages, but did not make an express finding that Wallace Roofing’s DTPA violations were the
    producing cause of Benson’s damages. As producing cause is an essential element for recovery on
    a DTPA claim, the finding is implied. See Vickery v. Comm’n for Lawyer Discipline, 
    5 S.W.3d 241
    , 252 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (“When a court makes findings of
    fact, but inadvertently omits an essential element of a ground of recovery or defense, the presumption
    of validity will supply the omitted element by implication.”). Accordingly, we may set aside the
    judgment only if: (1) there is no evidence that supports the trial court’s implied finding that one or
    both of Wallace Roofing’s DTPA violations were a producing cause of Benson’s damages, (2) or
    if the evidence supporting the finding is so weak that it is clearly wrong and manifestly unjust. See
    
    McMillin, 180 S.W.3d at 201
    .
    With regard to her first claim—that Wallace Roofing misrepresented the amount
    of her debt—Wallace Roofing concedes that it misrepresented the amount of Benson’s debt to
    her mortgage company but argues that there is no evidence in the record that the amount of
    Benson’s debt was a substantial factor in the mortgage company’s decision to cancel her refinance.
    Wallace Roofing bases this argument on the testimony of the loan officer handling the refinance,
    who acknowledged that “any lawsuit in which [Benson] was the defendant . . . [could] have
    prevented the refinance.”
    11
    On this record, however, there is sufficient evidence that Wallace Roofing’s liens and
    lawsuit misrepresented the amount of debt owed, and that this discrepancy as to the amount of
    Benson’s debt—as well as Wallace Roofing’s failure to give notice—were substantial factors in
    Benson’s refusal to pay, which in turn resulted in Wallace Roofing’s lawsuit and her failed refinance.
    See 
    Ledesma, 242 S.W.3d at 45
    (there can be more than one producing cause of an injury). Benson
    testified that at the time of the refinance she had a negative balance in her checkbook and could not
    pay Wallace Roofing the $5,220.10 demanded. She testified, however, that if Wallace Roofing had
    demanded $1,000 instead, she could have borrowed that amount of money from her mother. As the
    trial court found that Benson owed only $255.77 on her contract, we conclude there is sufficient
    evidence that Wallace Roofing’s misrepresentation of the amount of Benson’s debt was a substantial
    factor and cause-in-fact of her failed refinance.
    With regard to Benson’s second claim—that Wallace Roofing employed a false
    representation or deceptive means to collect a debt—the trial court found that Wallace Roofing
    failed to notify Benson of any outstanding debt on her account before filing, approximately three-
    and-a-half years after completing its repairs, a statutory mechanic’s lien against Benson’s homestead
    that Wallace Roofing admits was invalid. Upon discovery of the invalid lien, Benson’s mortgage
    company canceled her first scheduled closing on her refinance. As Benson’s refinance would have
    closed but for the invalid lien placed on Benson’s homestead without notice to her, we conclude
    there is also sufficient evidence that the invalid lien and Wallace Roofing’s failure to give Benson
    notice of the claim were also substantial factors and causes-in-fact of her failed refinance. See K &
    N Builder Sales, Inc., 
    2013 WL 1279292
    , at *7 (upholding damages award for failed refinance when
    mortgage transaction was defeated by bank’s discovery of defendant’s invalid lien).
    12
    Having found sufficient evidence to support the trial court’s implied finding that
    Wallace Roofing’s DTPA violations were a producing cause of Benson’s damages, we cannot
    conclude the evidence supporting this finding is so weak or contrary to the overwhelming weight of
    the evidence as to be clearly wrong and manifestly unjust. We overrule Wallace Roofing’s first and
    second issues on appeal.
    Knowing DTPA Violation
    In its fourth and fifth issues on appeal, Wallace Roofing contends there is
    insufficient evidence to support the trial court’s finding that it knowingly violated the TDCPA’s
    prohibition on misrepresenting the character, extent, or amount of a consumer debt or
    misrepresenting the consumer’s debt status in a judicial or governmental proceeding. See Tex. Fin.
    Code § 392.304(a)(8). Because Wallace Roofing attacks the legal and factual sufficiency of an
    adverse finding on which it did not have the burden of proof, it must demonstrate on appeal that
    there is no or insufficient evidence to support the finding. See 
    McMillin, 180 S.W.3d at 201
    .
    The DTPA provides additional damages for statutory violations that are committed
    “knowingly.” See Tex. Bus. & Com. Code § 17.50(b)(1). The DTPA defines “knowingly” as
    “actual awareness, at the time of the act or practice complained of, of the falsity, deception,
    or unfairness of the act or practice giving rise to the consumer’s claim . . . but actual awareness
    may be inferred where objective manifestations indicate that a person acted with actual awareness.”
    
    Id. § 17.45(9).
    Here, Wallace Roofing represented in its statutory mechanic’s lien and pleadings
    that Benson owed $5,220.10 on her roofing contract, but admitted at trial that this amount was
    incorrect because it had in its possession—at the time it filed the lien and lawsuit—documents
    showing that it had failed to credit Benson’s account with a $2,349.33 payment from her insurer.
    13
    Thus, there is sufficient evidence supporting the trial court’s finding that Wallace Roofing knowingly
    misrepresented the amount of Benson’s debt.
    On appeal, however, Wallace Roofing contends that the trial court erred in finding
    that it knowingly misrepresented the amount of Benson’s debt because the evidence showed that
    any violation was unintentional and the result of “bona fide error.” The TDCPA provides a defense
    for debt collectors accused of statutory violations upon proof that the “violation was not intentional
    and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably
    calculated to avoid such error.” Tex. Fin. Code § 392.401. Wallace Roofing, however, had the
    burden of pleading and proving bona fide error as a defense. Waterfield Mortg. Co., Inc. v.
    Rodriguez, 
    929 S.W.2d 641
    , 647 (Tex. App.—San Antonio 1996, no writ); Crawford Chevrolet, Inc.
    v. McLarty, 
    519 S.W.2d 656
    , 662 (Tex. Civ. App.—Amarillo 1975, no writ). Because Wallace
    Roofing failed to plead bona fide error as a defense, it has waived its right to assert this defense on
    appeal. Waterfield Mortgage Co., 
    Inc., 929 S.W.2d at 647
    ; Crawford Chevrolet, 
    Inc., 519 S.W.2d at 662
    . Further, we cannot conclude that the issue was tried by implied consent as the trial court
    excluded evidence relevant to the defense after Wallace Roofing advised that it was not asserting
    bona fide error as a defense. See Waterfield Mortgage Co., 
    Inc., 929 S.W.2d at 647
    . Accordingly,
    we conclude Wallace Roofing failed to plead and prove the defense of bona fide error and has
    waived this issue on appeal. We overrule Wallace Roofing’s fourth and fifth issues on appeal.
    Wallace Roofing’s Damages
    In its sixth issue on appeal, Wallace Roofing contends it proved as a matter of law
    it was entitled to $1,855.77 in damages for its breach of contract claim and that there is insufficient
    evidence to support the trial court’s award of only $255.77 in damages.
    14
    1.     Contract Price
    Our first task in addressing this issue is to construe the roofing contract to determine
    what payment the parties agreed Wallace Roofing would receive under the contract. The contract
    provided that, upon completion of the repairs, Benson would pay Wallace Roofing “per the
    claims adjuster agreement.” The term “claims adjuster agreement” is not defined in the contract.
    The contract additionally contained a hand-written notation stating: “This contract is null and void
    unless insurance carrier pays 100% for all storm damage.” The trial court construed the contract as
    requiring Benson to pay $17,017.70, the amount paid and approved by Benson’s insurer for the
    claim. Wallace Roofing, however, contends this is an incorrect interpretation of the contract and
    argues the contract required Benson to pay Wallace Roofing an additional $3,300, which was the
    amount of Benson’s deductible under her homeowner’s insurance policy.4 The construction of an
    unambiguous contract is a question of law which we review de novo. Tawes v. Barnes, 
    340 S.W.3d 419
    , 425 (Tex. 2011).
    In determining which price governs the contract, we must ascertain and give effect
    to the parties’ intentions as expressed in the contract. See Frost Nat’l Bank v. L & F Distribs., Ltd.,
    4
    Benson testified that Wallace Roofing’s agent promised to waive her deductible and
    accept the insurance company’s payment as full satisfaction for the entire claim. Although the
    Texas Attorney General has found this practice does not constitute insurance fraud, the legality of
    such an agreement is less than clear under Texas law. See Tex. Att’y Gen. Op. No. JM-1154 (1990)
    (“A situation in which a person providing a good or service does not seek payment from an insured
    of the amount of his insurance deductible does not constitute a criminal offense.”); but see also
    Tex. Bus. & Com. Code § 27.02 (“A person who sells goods or services commits insurance fraud
    if the person advertises or promises to pay all or part of any applicable insurance deductible or a
    rebate in an amount equal to all or part of any applicable insurance deductible.”); Tex. Penal Code
    § 35.02(b) (“A person commits an offense if, with intent to defraud or deceive an insurer, the person
    solicits, offers, pays, or receives a benefit in connection with the furnishing of goods or services
    for which a claim for payment is submitted under an insurance policy.”). As this issue was not raised
    or briefed by the parties, we express no opinion as to the legality of such an agreement.
    15
    
    165 S.W.3d 310
    , 311–12 (Tex. 2005). “The language in an agreement is to be given its plain
    grammatical meaning unless to do so would defeat the parties’ intent.” DeWitt Cnty. Elec. Coop.,
    Inc. v. Parks, 
    1 S.W.3d 96
    , 101 (Tex. 1999); see Dynegy Midstream Servs., Ltd. P’ship v. Apache
    Corp., 
    294 S.W.3d 164
    , 168 (Tex. 2009). “No single provision taken alone will be given controlling
    effect; rather, all the provisions must be considered with reference to the whole instrument.” Seagull
    Energy E & P, Inc. v. Eland Energy, Inc., 
    207 S.W.3d 342
    , 345 (Tex. 2006).
    Although the parties have conflicting interpretations of the contract, we look to their
    objective intent as manifested in the words of their written agreement and will consider the parties’
    interpretations and extraneous evidence only if the contract is ambiguous. David J. Sacks, P.C.
    v. Haden, 
    266 S.W.3d 447
    , 450 (Tex. 2008); see also Sun Oil Co. v. Madeley, 
    626 S.W.2d 726
    ,
    728 (Tex. 1981). “Whether a contract is ambiguous is a question of law that must be decided by
    examining the contract as a whole in light of the circumstances present when the contract
    was entered.” Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 
    940 S.W.2d 587
    , 589
    (Tex. 1996). “If, after the pertinent rules of construction are applied, the contract can be given a
    definite or certain legal meaning, it is unambiguous and we construe it as a matter of law.” Frost
    Nat’l 
    Bank, 165 S.W.3d at 312
    . An ambiguity arises only after the application of established rules
    of construction leaves an agreement susceptible to two or more reasonable interpretations. DeWitt
    Cnty. Elec. Coop., 
    Inc., 1 S.W.3d at 100
    .
    Returning to the contract, we conclude as a matter of law that the unambiguous terms
    of the agreement required Benson to pay Wallace Roofing $17,017.70, the sum approved and paid
    by her insurer for the claim. The contract provides that Wallace Roofing is to be paid “per the claims
    adjustor agreement” and that the contract is “null and void” unless Benson’s insurance carrier agrees
    16
    to “pay 100% for all storm damage.” Applying the plain meaning of these terms, we conclude that
    Benson has no liability under the contract except for those sums paid by her insurer for the claim
    based on the claims adjustor’s assessment of damages. See 
    id. at 101
    (language in agreement to be
    given plain grammatical meaning). Interpreting the contract as requiring Benson to additionally pay
    for her deductible would nullify the provision requiring her insurer to pay 100% for all storm damage
    and render the contract null and void. See Harris v. Rowe, 
    593 S.W.2d 303
    , 306 (Tex. 1979) (“If
    a contract is susceptible of two constructions, one of which would render it valid and the other
    invalid, construction validating it must prevail.”); Burnett Ranches, Ltd. v. Cano Petroleum, Inc.,
    
    289 S.W.3d 862
    , 867 (Tex. App.—Amarillo 2009, pet. denied) (“[W]e generally cannot interpret one
    contractual provision in a way that nullifies another.”). Accordingly, we conclude as a matter of law
    Wallace Roofing was entitled to $17,017.70 under the contract.
    2.      Payments Made to Wallace Roofing’s Agent
    After determining the amount due to Wallace Roofing under the contract, our next
    task is to determine whether there is sufficient evidence to support the trial court’s implied finding
    that payments Benson made to Wallace Roofing’s agent, Jeff Anthony, should be offset against
    the amount Benson owed Wallace Roofing. When an agent has either actual or apparent authority
    to receive payments due on a contract, payment to the agent has the same legal effect as payment to
    the principal itself. See McAlpin v. Ziller, 
    17 Tex. 508
    , 514 (Tex. 1856); see also Pfluger v. Colquitt,
    
    620 S.W.2d 739
    , 743 (Tex. Civ. App.—Dallas 1981, writ ref’d n.r.e.). If an authorized agent
    subsequently misappropriates the money for his own use, the damages resulting from the agent’s
    actions must be borne by the principal. Cash v. Lebowitz, 
    734 S.W.2d 396
    , 399 (Tex. App.—Dallas
    1987, writ ref’d n.r.e.); 
    Pfluger, 620 S.W.2d at 743
    . The mere fact that an agent is authorized to
    17
    contract on behalf of its principal, however, does not necessarily imply that the agent has actual or
    apparent authority to receive payment under the contract. See Gunter v. Robinson, 
    112 S.W. 134
    ,
    135 (Tex. Civ. App.—Dallas 1908, no writ). Here, the trial court found that Benson owed
    Wallace Roofing only $255.77 in damages. In calculating the amount of damages, the trial court
    impliedly found that Anthony was acting within the scope of his actual or apparent authority
    when he received Benson’s payments, and therefore, the payments should be offset against
    Wallace Roofing’s damages.
    On appeal, Wallace Roofing challenges this implied finding contending there is no or
    insufficient evidence that Anthony was within the scope of his authority when he received
    Benson’s payments. At trial, Benson had the burden of proving that Anthony was acting within the
    scope of his authority when he accepted her payments for work performed by Wallace Roofing. See
    Boucher v. City Paint & Supply, Inc., 
    398 S.W.2d 352
    , 356 (Tex. Civ. App.—Tyler 1966, no writ)
    (burden of proof on party seeking to establish agency). Accordingly, for its legal sufficiency
    challenge, Wallace Roofing must demonstrate on appeal that there is no evidence to support the
    trial court’s implied finding that Anthony had either actual or apparent authority to receive
    payments from Benson on behalf of Wallace Roofing. See 
    Croucher, 660 S.W.2d at 58
    . In
    reviewing a no evidence challenge, we consider all the evidence in the light most favorable to
    the prevailing party, indulging every reasonable inference in that party’s favor, and disregarding
    all contrary evidence and inferences unless a reasonable fact-finder could not. City of Keller
    v. Wilson, 
    168 S.W.3d 802
    , 827 (Tex. 2005). If more than a scintilla of evidence supports the
    finding, the no-evidence challenge fails. For Wallace Roofing’s challenge to the factual sufficiency
    of the evidence supporting the finding, we must consider and weigh all the evidence and set aside the
    18
    judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong
    and unjust. HealthTronics, Inc. v. Lisa Laser USA, Inc., 
    382 S.W.3d 567
    , 581 (Tex. App.—Austin
    2012, no pet.).
    A.     Scope of Agent’s Actual or Apparent Authority
    Actual authority denotes that authority that a principal intentionally confers upon an
    agent, intentionally allows the agent to believe he possesses, or allows the agent to believe he
    possesses by want of due care. Spring Garden 79U, Inc. v. Stewart Title Co., 
    874 S.W.2d 945
    , 948
    (Tex. App.—Houston [1st Dist.] 1994, no writ). Apparent authority, however, arises “either from
    a principal knowingly permitting an agent to hold [himself] out as having authority or by a
    principal’s actions which lack such ordinary care as to clothe an agent with the indicia of authority,
    thus leading a reasonably prudent person to believe that the agent has the authority [he] purports
    to exercise.” Gaines v. Kelly, 235 S.W.3d 179,183 (Tex. 2007); see also Ames v. Great S. Bank,
    
    672 S.W.2d 447
    , 450 (Tex. 1984). To determine an agent’s apparent authority, we examine the
    conduct of the principal, reliance by the party alleging apparent authority, and the reasonableness of
    the third party’s assumptions regarding the agency’s authority. 
    Gaines, 235 S.W.3d at 183
    ; see also
    
    Ames, 672 S.W.2d at 450
    . Declarations of the alleged agent, without more, are incompetent to
    establish either the existence of the agency or the scope of the alleged agent’s authority. 
    Gaines, 235 S.W.3d at 183
    .
    B.         Sufficient Evidence of Anthony’s Authority
    On this record, we conclude there is sufficient evidence to support the trial court’s
    implied finding that Anthony was acting within the scope of his actual or apparent authority when
    19
    he received payments from Benson for work performed by Wallace Roofing. The record shows
    Benson wrote two checks to Anthony with the notation “roofing” and had obtained a receipt
    reflecting that the payments were for work performed by Wallace Roofing. Further, the president
    of Wallace Roofing admitted at trial that Anthony was Wallace Roofing’s agent and was authorized
    to contract with Benson on behalf of the company. This was also reflected in Wallace Roofing’s
    contract, which represented that Anthony was an “authorized agent” for Wallace Roofing.
    Moreover, Wallace Roofing’s contract did not prescribe a particular method of payment or otherwise
    limit Anthony’s authority to collect payments under the contract. Further, the president of
    Wallace Roofing acknowledged at trial that he had asked Benson to sign an affidavit averring that
    she had made payments to Anthony directly so that Wallace Roofing could attempt to recover those
    sums from Anthony. The president of Wallace Roofing further testified that if he had been able to
    verify the $1,600 in payments Benson made to Anthony, he would have credited her account for the
    payments. Reviewing the evidence in the light most favorable to the judgment, we conclude there
    is more than a scintilla of evidence to support the trial court’s implied finding that Anthony had
    either actual or apparent authority to receive payments from Benson on behalf of Wallace Roofing.
    Although the president of Wallace Roofing testified that he had not given Anthony
    authority to collect payments from customers, that testimony does not render a finding of actual
    authority factually insufficient, as Wallace Roofing conceded at trial that Anthony was its agent and
    that funds paid to Anthony for work performed by Wallace Roofing should be credited to Benson’s
    account. See 
    McMillin, 180 S.W.3d at 201
    (“When reviewing a challenge to the factual sufficiency
    of the evidence, . . . [w]e may not reverse merely because we conclude that the evidence
    preponderates toward a different answer.”). Further, the testimony has no bearing on the scope
    20
    of Anthony’s apparent authority because such authority is based upon a principal’s conduct in
    relation to third parties. Thus, any private agreement Wallace Roofing had with Anthony would
    not affect the scope of Anthony’s apparent authority. 
    McAlpin, 17 Tex. at 514
    (“Third persons
    cannot be affected by the private understanding between [agent and principal], which is known
    only to themselves.”). Rather, Anthony’s apparent authority is derived from Wallace Roofing’s
    representations and omissions in Benson’s roofing contract which led Benson to reasonably
    assume he had such authority. See 
    Gaines, 235 S.W.3d at 183
    . Accordingly, Wallace Roofing’s
    factual sufficiency challenge also fails.
    We conclude there is sufficient evidence to support the trial court’s implied finding
    that Anthony was acting within the scope of his authority when he received Benson’s payments, and
    therefore, the $1,600 in payments Benson made to Anthony should be offset against the amount
    Benson owed Wallace Roofing under the contract.
    3.     Wallace Roofing’s Damages Award
    Having determined that Wallace Roofing was entitled to a total payment of
    $17,017.70 under the roofing contract and that Benson’s account should be credited for the $1,600
    in payments made to Wallace Roofing’s agent, we can now review the sufficiency of the evidence
    supporting the trial court’s award of $255.77 in damages for Wallace Roofing’s successful breach
    of contract claim.
    As Wallace Roofing had the burden of proving its damages, it cannot prevail on its
    legal sufficiency challenge unless its damages were established as a matter of law. See U.S. Bank,
    Nat’l Assoc. v. American Realty Trust, Inc., 
    275 S.W.3d 647
    , 652 (Tex. App.—Dallas 2009,
    pet. denied). Reviewing the evidence supporting the trial court’s damages award, the record shows
    21
    that: (1) Benson’s insurance carrier made payments to Wallace Roofing on behalf of Benson totaling
    $11,361.93; (2) Benson made payments under the contract totaling $5,400, including the payments
    she made to Anthony and payments for expenses related to the contract which Wallace Roofing
    concedes should be credited to her account. Thus, the record shows Wallace Roofing received a
    total payment of $16,761.93 under the contract. The difference between $17,017.70—the amount
    Wallace Roofing was entitled to receive under the contract—and $16,761.93—the amount Wallace
    Roofing actually received under the contract is $255.77, the amount of damages awarded by the
    trial court. Accordingly, we conclude there is legally sufficient evidence to support the award.
    For Wallace Roofing’s factual sufficiency challenge, we must consider and weigh
    all the evidence in the record and set aside a finding only if the evidence is so weak or if the finding
    is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.
    Dow Chem. Co. v. Francis, 
    46 S.W.3d 237
    , 242 (Tex. 2001). Wallace Roofing contends the
    damages finding is against the great weight and preponderance of the evidence because Benson’s
    account should not be credited for payments made to its agent. As we have already concluded
    Benson is entitled to credit under the contract for the payments she made to Wallace Roofing’s
    agent, we conclude the evidence is factually sufficient to support the damages award. We overrule
    Wallace Roofing’s sixth issue on appeal.
    Wallace Roofing’s Constitutional Lien Claim
    In its seventh issue on appeal, Wallace Roofing contends the trial court erred in
    denying its claim to foreclose on its constitutional mechanic’s lien against Benson’s homestead. To
    prevail on a claim to foreclose a constitutional mechanic’s lien, a lienholder must prove the
    performance of the labor and the existence of the debt. San Antonio Credit Union v. O’Connor,
    22
    
    115 S.W.3d 82
    , 107–08 (Tex. App.—San Antonio 2003, pet. denied). If the trial court had
    foreclosed on the constitutional lien in this case, Wallace Roofing would have been entitled to
    recover only $255.77 for its claim. As the trial court awarded Benson $45,000 in damages and
    attorneys’ fees, any damages Wallace Roofing could have recovered from the constitutional lien
    claim were fully offset by Benson’s damages award. As such, we cannot conclude the trial court
    abused its discretion in denying Wallace Roofing’s foreclosure claim. We overrule Wallace
    Roofing’s seventh issue on appeal.
    Attorneys’ Fees
    In its eighth and ninth issues on appeal, Wallace Roofing contends it was entitled to
    an award of attorneys’ fees under chapter 38 of the Civil Practice and Remedies Code because it
    prevailed on its breach of contract claim. See Tex. Civ. Prac. & Rem. Code § 38.001(8) (authorizing
    recovery of attorney’s fees for valid claims based on oral or written contract). Chapter 38 provides
    for the recovery of attorneys’ fees in breach-of-contract cases, providing that “a person may recover
    reasonable attorneys’ fees . . . in addition to the amount of a valid claim and costs, if the claim is for
    . . . an oral or written contract.” 
    Id. Benson defends
    the award of zero attorneys’ fees, contending
    that Wallace Roofing failed to present its claim for payment to Benson as required, made an
    excessive presuit demand, and was not a “prevailing party” as required to recover attorneys’ fees
    under chapter 38.
    We review a trial court’s decision to grant or deny attorneys’ fees
    under an abuse of discretion standard. EMC Mortg. Corp. v. Davis, 
    167 S.W.3d 406
    , 418
    (Tex. App.—Austin 2005, pet. denied). A trial court abuses its discretion when it acts without
    reference to any guiding rules or principles. Carpenter v. Cimarron Hydrocarbons Corp., 
    98 S.W.3d 23
    682, 687 (Tex. 2002). “When a prevailing party in a breach of contract suit seeks attorney’s fees
    under section 38.001, makes its proof, and meets the requirements of the section, an award of
    attorney’s fees is mandatory.” Flagship Hotel, Ltd. v. City of Galveston, 
    117 S.W.3d 552
    , 563–65
    (Tex. App.—Texarkana 2003, pet. denied); see also Bocquet v. Herring, 
    972 S.W.2d 19
    , 20–21
    (Tex. 1998). Thus, a trial court “possesses discretion to determine the amount of attorney’s fees,
    but it lacks discretion to deny attorneys’ fees if they are proper under section 38.001.” Brent v.
    Field, 
    275 S.W.3d 611
    , 622 (Tex. App.—Amarillo 2008, no pet.); Budd v. Gay, 
    846 S.W.2d 521
    ,
    524 (Tex. App.—Houston [14th Dist.] 1993, no writ).
    In order to recover attorneys’ fees under chapter 38, Wallace Roofing must show that:
    (1) it was represented by counsel; (2) it presented its claim to Benson; and (3) Benson failed to pay
    the just amount owed within thirty days of presentment. Tex. Civ. Prac. & Rem. Code § 38.002.
    Presentment of a claim is required to allow the person against whom it is asserted an opportunity
    to pay within thirty days of receiving the claim, before incurring an obligation for attorneys’ fees.
    Jones v. Kelley, 
    614 S.W.2d 95
    , 100 (Tex. 1981). No particular form of presentment is required,
    and it may be written or oral. 
    Id. “[A]ll that
    is necessary is that an assertion of a debt or claim
    and a request for compliance be made to the opposing party, and the opposing party refused
    to pay the claim.” Standard Constructors, Inc. v. Chevron Chem. Co., Inc., 
    101 S.W.3d 619
    , 627
    (Tex. App.—Houston [1st Dist.] 2003, pet. denied); see also Huff v. Fidelity Union Life Ins. Co.,
    
    312 S.W.2d 493
    , 500 (Tex. 1958).
    The trial court found that Wallace Roofing failed to present its claim to Benson
    and denied an award of attorneys’ fees. Wallace Roofing, however, contends that Benson’s
    own testimony established presentment of the claim as a matter of law. We agree. According to
    24
    Benson’s undisputed testimony, Wallace Roofing through its attorney informed her of the claim and
    demanded payment during a telephone conversation occurring after her first closing was canceled.
    Benson testified the lawyer informed her during the telephone conversation that she owed $5,220.10
    on the contract and demanded payment but that she refused to pay any amount on the claim and
    informed the lawyer she was going to take the claim to court. As Benson testified that Wallace
    Roofing presented its claim and she refused to tender payment within thirty days, we conclude
    Wallace Roofing established presentment of the claim as a matter of law.5
    We must next consider, however, whether Wallace Roofing waived its right to
    attorneys’ fees by presenting an excessive demand. In its initial demand for payment, Wallace
    Roofing sought $5,220.10 from Benson but at trial only recovered $255.77. Benson contends that
    Wallace Roofing’s demand was excessive and should preclude an award of attorneys’ fees. As a
    general rule, “a creditor who makes excessive demand upon a debtor is not entitled to attorneys’ fees
    for subsequent litigation required to recover the debt.” Findlay v. Cave, 
    611 S.W.2d 57
    , 58
    (Tex. 1981); Collingsworth v. King, 
    283 S.W.2d 30
    , 33 (Tex. 1955). But the mere fact that a
    judgment awards an amount less than the original claim presented does not necessarily mean that
    the original claim presented was excessive. 
    Findlay, 611 S.W.2d at 58
    . Rather, the dispositive
    inquiry for determining whether a demand is excessive is whether the claimant acted unreasonably
    or in bad faith. Pratt v. Trinity Projects, Inc., 
    26 S.W.3d 767
    , 769 (Tex. App.—Beaumont 2000,
    pet. denied). Further, “[a]pplication of this rule is limited to situations where the creditor refuses
    5
    Although Wallace Roofing presented its claim after it had already filed suit, chapter 38
    does not require a party to present its claim prior to filing suit. See Palestine Water Well Servs., Inc.
    v. Vance Sand & Rock, Inc., 
    188 S.W.3d 321
    , 327 (Tex. App.—Tyler 2006, no pet.).
    25
    a tender of the amount actually due or indicates clearly to the debtor that such tender would
    be refused.” Hernandez v. Lautensack, 
    201 S.W.3d 771
    , 777 (Tex. App.—Fort Worth 2006,
    pet. denied); see also 
    Findlay, 611 S.W.2d at 58
    .
    Here, Wallace Roofing demanded Benson pay $5,220.10 on her roofing contract, but
    admitted at trial that this amount was incorrect because it had in its possession—at the time it made
    the demand—documents showing that it had failed to credit Benson’s account with a $2,349.33
    payment from her insurer. Further, despite Benson and her attorney’s communications disputing
    the amount of the debt, Wallace Roofing persisted in its claim that she owed $5,220.10. Indeed,
    even after communications with Benson and her attorney, Wallace Roofing continued to assert in
    its pleadings that Benson owed $5,220.10 and sent a copy of the pleadings to the title company
    handling the closing for Benson’s failed refinance. Given that Wallace Roofing admitted at trial
    that it made an excessive demand for payment and its actions indicated an unwillingness to
    accept the actual amount due on the account, we cannot conclude the trial court abused its discretion
    in denying attorneys’ fees.6 See Ingham v. Harrison, 
    224 S.W.2d 1019
    , 1022 (Tex. 1949) (demand
    excessive when creditor refused to allow debtor credits for certain payments); Warrior Constructors,
    Inc. v. Small Bus. Inv. Co. of Houston, 
    536 S.W.2d 382
    , 386 (Tex. App.—Houston [14th Dist.]
    1976, no writ) (debtor not required to tender payment where creditor has clearly indicated an
    6
    Almost three months after sending the title company a copy of its pleadings seeking
    $5,220.10 in damages, Wallace Roofing discovered that it had failed to credit Benson’s account with
    the $2,349.33 payment from her insurer. Upon discovery of the mistake, Wallace Roofing amended
    its pleadings to lower its requested damages; however, there is no evidence in the record that
    Wallace Roofing presented Benson with its revised claim and demanded payment. See Huff v.
    Fidelity Union Life Ins. Co., 
    312 S.W.2d 493
    , 500 (Tex. 1958) (act of filing suit is not by itself a
    demand for payment under chapter 38 sufficient to trigger award of attorneys’ fees).
    26
    unwillingness to accept what is due). Accordingly, we overrule Wallace Roofing’s eighth and
    ninth issues on appeal.7
    Benson’s Cross-Points
    In two cross-points of error, Benson contends she is entitled as a matter of law to
    greater damages for her counterclaims. An appellee seeking to change the trial court’s judgment or
    to obtain more favorable relief than that granted by the trial court must file its own notice of appeal.
    See Tex. R. App. P. 25.1(c), 26.1(d); Lubbock Cnty. v. Trammel’s Lubbock Bail Bonds, 
    80 S.W.3d 580
    , 584 (Tex. 2002). As Benson has not filed a notice of appeal, we conclude she has waived this
    issue on appeal.
    CONCLUSION
    For the foregoing reasons, we affirm the judgment of the trial court.
    ____________________________________________
    Jeff Rose, Justice
    Before Chief Justice Jones, Justices Pemberton and Rose
    Affirmed
    Filed: November 27, 2013
    7
    In its tenth issue on appeal, Wallace Roofing argued that the trial court erred in granting
    judgment against Royce Dean Wallace in his personal capacity. In its reply brief, Wallace Roofing
    concedes this point is moot as the trial court corrected any error in its final judgment nunc pro tunc.
    27