Morrell Masonry Supply, Inc. v. Scott Griffin & Associates, Inc. ( 2011 )

Opinion issued May 19, 2011

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-01147-CV

Morrell Masonry Supply, Inc., Appellant

V.

Scott Griffin & Associates, Inc., Appellee

On Appeal from the County Court at Law Number 4

Harris County, Texas

Trial Court Case No. 926,298

MEMORANDUM OPINION

This is an appeal following a bench trial involving a dispute over a residential construction materials lien.  We affirm.     

BACKGROUND

Plaintiff/Appellant Morrell Masonry sells building supplies, such as stucco. Defendant/Appellee Scott Griffin & Associates (SGA) is a general contracting firm that builds houses on property it owns.  Felix Ruiz d/b/a Ruiz Construction (“Ruiz”), a stucco, stone, and masonry work contractor, was hired by SGA to do stucco work on two houses SGA was building, one at 10 Oak Cove Lane and the other at 30 Oak Cove Lane.  During the time Ruiz was working on these two SGA houses, it was doing work at three other projects on Oak Cove Lane for AGM Homes, and at least one other job in the Huffman area. 

An issue arose with Ruiz not paying Morrell for stucco he used at 30 Oak Cove. This resulted in Morrell placing a materialman’s lien against the house at 30 Oak Cove.  On June 6, 2008, SGA paid Morrell $12,331.05 to obtain a release of that lien.  Because SGA had already paid Ruiz for the material that was the subject of the lien on 30 Oak Cove, SGA and Ruiz entered an agreement with regard to 10 Oak Cove under which Ruiz was paid for labor only, and SGA would only pay him a portion of the cost of his labor until the $12,331.05 was recouped by SGA.

As a result of the problems related to 30 Oak Cove, Scott Griffin, the president of SGA, verbally requested that Morrell contact him for approval before it gave Ruiz material on credit that Ruiz claimed were for SGA jobsites. Griffin testified that Morrell called him “[t]hree times maybe, less than five times,” about Ruiz purchasing materials for his jobsites, and then he stopped receiving calls for the remainder of the time Ruiz continued doing work for SGA.  SGA later discovered a problem had arisen again when Morrell again contacted Griffin about materials for which Ruiz was not paying (about which Morrell had not notified Griffin) and notified him that Morrell was going to place a lien on 10 Oak Cove.  On May 1, 2008, SGA sent a letter to Morrell claiming there was no proof that the materials made the subject of Morrell’s claims were used at SGA job sites and stating that SGA would not take responsibility for any charges related to its projects unless Morrell obtained written authorization from SGA in advance. 

Between April 2008 and June 2008, SGA paid Ruiz a total of $7,500 for labor only. SGA terminated Ruiz’s services completely in June 2008, and hired another contractor, J.J. Plaster, to complete the stucco work at 10 Oak Cove.  Ruiz had done some work preparing the site, but the bulk of the stucco and labor to install it was provided by J.J. Plaster. 

On August 12, 2008, Morrell’s attorney sent SGA a letter notifying it that Ruiz had unpaid invoices for stucco at SGA’s jobsite at 10 Oak Cove.  That notice requested payment of $15,451.17 for Ruiz’s unpaid invoices and $350.00 for its Notice of Intent to file a lien on 10 Oak Cove Lane.  On September 4, 2008, Morrell filed its lien on 10 Oak Cove. 

When SGA failed to pay these invoices on Ruiz’s behalf, Morrell sued SGA seeing to foreclose its lien on 10 Oak Cove or to recover for unpaid invoices through various theories, including quantum meruit.  SGA filed an answer asserting that SGA’s lien was filed untimely and pleading, as affirmative defenses, accord and satisfaction, estoppel, fraud, failure to mitigate, and denial of conditions precedent.  SGA also counterclaimed for breach of contract and attorney’s fees, citing Morrell’s agreement to not sell product to Ruiz for SGA’s jobs without prior authorization.

1.     Trial

The case was tried to the bench.  Morrell introduced into evidence numerous invoices Ruiz had not paid, along with the corresponding delivery tickets, which each listed “10 Oak Cove Lane” and “GC: Scott Griffin”[1] in the “ship to” field.    Most of them, however, also designated the shipping method as “will call.”    Morrell’s office manager, Sonia Barboza, testified that Ruiz would designate “10 Oak Cove Lane” as the “ship to” address when placing the order, and that most times someone would then come to Morrell’s place of business to pick up the order, but other times Morrell would deliver the order to the jobsite.  She further testified that it was the practice of Morrell’s customer service representatives to call the general contractor “every single” time a subcontractor placed an order to confirm that the materials were for that particular job.  Later, she testified that “wouldn’t be probably [sic] every single” time, but the “majority” of times.  Some of the delivery tickets were signed by the person picking up or receiving the order; while Ruiz did not sign for materials, Morrell assumed that whoever signed for the materials was one of Ruiz’s agents or workers.  None of the tickets were signed by Griffin or any other SGA employee.

Griffin testified that, given the amount of stucco that J.J. Plaster—the company that replaced Ruiz—installed at 10 Oak Cove, it would not have been possible for all of the unpaid stucco that Ruiz bought from Morrell to go into that project.  He further testified that no stucco was delivered to 10 Cove Oak while Ruiz was employed on May 1, 2008 to perform labor only.  Finally, SGA introduced evidence that its last payment to Ruiz was on June 20. 2008, well before it received notice from Morrell on August 14, 2008 about Ruiz’s unpaid invoices.

2.     The trial court’s judgment, findings of fact, and conclusions of law

The trial court entered judgment that Morrell take nothing on its lien and awarded SGA attorney’s fees of $7,525.00 plus postjudgment interest.  At the request of the parties, the court made findings of facts and conclusions of law.  Among these, the court found that SGA had sent the letter to Morrell on May 1, 2008 requesting that SGA be notified of Ruiz’s attempts to charge materials allegedly for SGA jobs, and that SGA’s vice president followed up with a phone call to Morrell in which Morrell confirmed that “Morrell agreed not to provide any more material to Ruiz on any project of SGA without authorization from SGA.”    The court found that, while Morrell called SGA “a few times in the month of April 2008,” after the May 1, 2008 letter, “Morrell did not call or contact SGA in advance prior to releasing material to Ruiz” and this “breached the [a]greement it had with SGA.”  As for attorney’s fees, the court found that “SGA made demand for attorneys fees which Morrell failed to pay,” and that “SGA incurred reasonable and necessary attorney’s fees to enforce its agreement with Morrell in the amount of $7,525.00.”   

In its conclusions of law, the court concluded Morrell’s lien on 10 Oak Cove was invalid and/or unenforceable on several grounds.  It held Morrell was estopped to enforce any liens because it breached the agreement to obtain SGA’s approval before giving materials to Ruiz for SGA’s jobs on credit, and that Morrell had failed to mitigate its damages. It also held that Morrell had no valid lien for retainage because its lien was not timely filed, and that Morrell’s August 12, 2008 notice letter was sent too late to “trap any funds” SGA owed to Ruiz because “Ruiz was terminated and last paid on June 20, 2008.”  It further held that Morrell does not have a lien on the property because it did not prove it had delivered materials to 10 Cove Oak and held that Morrell did not prove that the materials furnished to Ruiz were delivered to the job site or to a particular builder (SGA) for a particular construction job (10 Oak Cove, Humble, Texas).  As for attorney’s fees, the court’s conclusions state that the “attorneys fees incurred by SGA are damages awarded to SGA for breach of the Agreement.”  

Morrell timely brought this appeal.

ANALYSIS

1.     Standard of Review

In an appeal of a judgment rendered after a bench trial, the trial court’s findings of fact have the same weight as a jury’s verdict, and we review the legal and factual sufficiency of the evidence to support them as we would review a jury’s findings.  Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); In re K.R.P., 80 S.W.3d 669, 673 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).  To determine whether legally sufficient evidence supports a challenged finding, we must consider evidence that favors the finding if a reasonable fact-finder could consider it, and we must disregard evidence contrary to the challenged finding unless a reasonable fact-finder could not disregard it.  See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).  This Court may not sustain a legal insufficiency, or “no evidence” point unless the record demonstrates (1) a complete absence of evidence of a vital fact; (2) that the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) that the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) that the evidence conclusively establishes the opposite of the vital fact. Id. at 810.  When a party attacks the factual sufficiency of an adverse finding on an issue on which it has the burden of proof, it must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Urista v. Bed, Bath, & Beyond, Inc., 245 S.W.3d 591, 601 (Tex. App.—Houston [1st Dist.] 2007, no pet.)

We review conclusions of law by the trial court de novo and will uphold them if the judgment can be sustained on any legal theory supported by the evidence.  In re Moers, 104 S.W.3d 609, 611 (Tex. App.—Houston [1st Dist.] 2003, no pet.).  The trial court’s conclusions of law are not subject to challenge for lack of factual sufficiency, but we may review the legal conclusions drawn from the facts to determine their correctness.  Brown v. Brown, 236 S.W.3d 343, 348 (Tex. App.—Houston [1st Dist.] 2007, no pet.)  We will overrule a challenge to fact findings that form the basis of a conclusion of law or disposition when the appellant does not challenge other fact findings that support that conclusion or disposition. See Britton v. Tex. Dep’t of Criminal Justice, 95 S.W.3d 676, 682 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

Statutory construction is a question of law that the Court also reviews de novo.  In re Forlenza, 140 S.W.3d 373, 376 (Tex. 2004).  The primary objective in construing any statute is to determine and give effect to the Legislature’s intent. Warner v. Glass, 135 S.W.3d 681, 683 (Tex. 2004).  We begin with the plain and common meaning of the statute’s words.  Id.; Tex. Gov’t Code Ann. § 311.011(a) (Vernon 2005).  “If the meaning of the statutory language is unambiguous, we adopt . . . the interpretation supported by the plain meaning of the provision’s words and terms.”  Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999); Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651–52 (Tex. 2006).  

1.     Burden of Proof/materials furnished for 10 Oak Cove Lane

In its first issue, Morrell argues that “the trial court erred in improperly shifting the burden of proof to Morrell, insisting that Morrell prove that the material supplies given to Ruiz were delivered, used, and signed for by a Scott Griffin employee at 10 Oak Cove Road for purposes of enforcing the . . . lien. From this, it argues that the trial court erred in making its “Conclusions of Law # 6 and 7 in which it found that Morrell does not have a lien on the Property because it did not prove it had delivered material to the Property.”  Finally, Morrell contends that “there is no evidence and/or insufficient evidence to support Finding of Fact # 9, which is grounded upon an improper shifting of the burden of proof upon Morrell.” 

In a related fifth issue, Morrell further challenges Finding of Fact number 9 on the ground that: “The trial court erred in finding that [SGA] did not authorize the delivery tickets of material supplies provided by Morrell: Morrell provided delivery tickets to the Trial Court demonstrating that [SGA] had authorized the furnishing of material supplies to its subcontractor.” 

Factual finding number 9 that Morrell challenges in issues number one and five is as follows:

The invoices and delivery tickets of Morrell (Plaintiff’s Exhibit 1) did not prove the materials were actually delivered to the Property.  SGA did not sign for delivery of the materials to the Property.  The signature on the delivery tickets were not authorized by SGA or any person employed by or known by SGA.  There was no evidence who put signatures on any delivery tickets.

Legal Conclusion numbers 6 and 7 that Morrell challenges in issue number one is as follows:

Morrell does not have a lien on the Property because it did not prove it had delivered material to the Property.

Because Ruiz was working on five construction projects simultaneously, and as a matter of law there is no conclusive proof the materials furnished to Ruiz were delivered to the job site or to a particular builder (SGA) for a particular construction job (10 Oak Cove, Humble, Texas).

Morrell cites Lexcon, Inc. v. Gray, 740 S.W.2d 83 (Tex. App.—Dallas 1987, no writ) as the “main Texas case on point” to support its argument that the “trial court has improperly reversed about 100 years of well established Texas law on this point and improperly shifted the materialman’s burden of proof.”  Under Lexcon, Morrell argues, it “need not prove that the materials furnished actually went into the construction.”  Rather, Morrell asserts, it is sufficient to prove “either (1) delivery of the goods to the construction site or (2) that he furnished the goods to the builder for a specific job.”  See also Houston Fire & Cas. Ins. Co. v. Hales, 279 S.W.2d 389, 392 (Tex. Civ. App.—Eastland 1955, writ ref’d n.r.e.) (“[O]ur Supreme Court . . . has held that where a materialman furnishes materials to a builder for a specific construction job it is not required in order to establish a lien that the material should actually enter into the construction; that the lien cannot be defeated in such cases by proof that a part of the material was used for other jobs.”).   

According to Morrell, what it “was required to prove per Lexcon, and did prove . . . is that it gave materials to the builder (Ruiz) for use at the 10 Oak Cove Road construction project.”  Thus, Morrell concludes, the trial court’s improperly shifting the burden of proof resulted in erroneous and unsupported finding of fact number 9 and conclusions of law numbers 6 and 7.  Further, Morrell contends, Ruiz was SGA’s agent—either actual or apparent—such that the trial court erred making finding of fact number 9 “that the signatures on the Morrell’s delivery tickets were not authorized by [SGA] or any person employed by” SGA.

In response, SGA argues that Morrell failed to meet its burden under Lexicon, which “noted that while proof that the materials actually goes into the construction project is not a requirement to establish a lien, it is a specific requirement that the materials be delivered to a particular job site or to a particular builder for use at a job site owned by such builder.”  SGA points out that the facts presented in Lexicon did not involve “alternate job sites where the materials could have been used by the contractor.” 

Chapter 53 of the Texas Property Code specifies who is entitled to a materialman’s lien on property.

§ 53.021.    Persons Entitled to a Lien

(a)  A person has a lien if:

(1)  The person labors, specifically fabricates material, or furnishes labor or materials for construction or repair in this state of:

(A)A house building or improvement;

. . . . and

(2)  the person labors, specifically fabricates the material, or furnishes the labor or materials under or by virtue of a contract with the owner or the owner’s agent, trustee, receiver, contractor, or subcontractor.

Tex. Prop. Code Ann. § 53.021 (Vernon 2007).

We disagree with Morrell that the trial court improperly placed the burden on Morrell to establish its entitlement to a lien.  Lexcon, the case upon which Morrell relies, recognizes the burden is on the “matererialman [to] prove[] delivery of the goods to the construction site or that he furnished the goods to the builder for a specific job.”  740 S.W.2d at 85.  In Lexcon, the trial court—without making specific findings of fact or conclusions of law—held that a roofing supply company was entitled to a $3,358.99 lien on a recently constructed hotel based upon unpaid bills by a roofing subcontractor for the builder of the hotel.  Id. at 85.  In reviewing the trial court’s implied findings in support of the judgment, the court explained “there need only be evidence sufficient to support a finding that [the roofing supply company] furnished $3,358.99 of materials for the construction of the [hotel] and for which [it] has not been paid.”  Id. at 86.  In concluding that “there is some evidence to support a finding that the materials furnished by [the roofing supply company] were furnished for the construction of” the hotel, the court had before it $16,035.28 in “invoices . . . placed in evidence to support the deliveries of materials to the job site.”  Id. at 85.  The Dallas court of appeals concluded that the trial court did not err in holding the owner of the hotel liable for the materials “sold by” the roofing supply company “and delivered to” the hotel job site.  Id. at 86.

The posture of this case is different.  Here, the question is whether “some evidence” supports the trial court’s conclusion that Morrell was not entitled to a lien because Morrell did not establish that (1) materials were delivered to 10 Oak Cove or (2) materials were furnished for use in the job at 10 Oak Cove.  We hold there is some evidence to support the trial court’s findings and conclusions.  Morrell relied upon its invoices, delivery tickets, and the testimony of one witness, its office manager, Barboza.  Of the approximately 45 delivery tickets for “Ruiz Construction” that list the address as “10 Oak Cove Lane” and the general contractor as “Scott Griffin” in the “ship to” field, most designate “will call” as the shipment method.  Several do not have any signature for “received by,” many have illegible signatures or markings, and Barboza could not identify any of the signatures as being related to Ruiz or SGA, other than to “assume” they were.  While Barboza testified that customer service representatives confirmed by phone with SGA that the materials were for 10 Cove Oak a “majority” of the time, Griffin testified that he only received calls between three and five times, and only two of the delivery tickets contain any indication SGA was contacted with the notation on one that “Scott authorized via phone” and another “Scott approved.” 

We do not hold that delivery tickets and invoices indicating materials were for a particular job site is not some evidence to support a lien.  But such evidence is not conclusive in the face of contradicting evidence.  Here the trial court was presented with evidence casting real doubt about where the material went, as well as testimony that Morrell was on notice of SGA’s contention that Ruiz was erroneously designating SGA job sites and that Morrell had agreed not to accept Ruiz’s word that materials were to be used at an SGA site without verifying that fact with SGA.  In light of this evidence, some evidence supports the trial court’s conclusion that Morrell had not carried its burden of establishing it was entitled to a lien on 10 Oak Cove Lane based upon Ruiz’s unpaid invoices.  We overrule Morrell’s issues one and five.

2. Morrell’s additional challenges to the court’s findings and conclusions.

In issue two, Morrell argues that the “trial court erred in failing to grant Morrell’s mechanic’s lien” because “Morrell proved that it had timely forwarded the Notice of Claim letter and timely filed its Mechanic’s Lien against the 10 Oak Cover Road property for purposes of both Fund Trapping/Garnishment and Retainage.”  In issue three, Morrell argues that the “trial court erred in accepting Scott Griffins’ Representation about some form of ‘8-1-08’ notice,” because there is insufficient evidence that Morrell received and accepted that agreement or that SGA could “opt out” of Chapter 53.  In issue four, Morrell argues that there is insufficient evidence that Morrell had an internal policy requiring it to contact SGA when Ruiz purchased materials for 10 Oak Cove and that the court erred “in finding that Morrell did not call or contact” SGA “prior to releasing material” to Ruiz.  Relatedly, in issue six Morrell contends that SGA presented “insufficient evidence to create a binding contract” between Morrell and SGA. In issue seven, it challenges the trial court’s finding that its lien affidavit did not include materials supplied in April 2008.  In issue nine, it argues the “trial court erred in concluding that Morrell filed its lien too late.” 

 Because we hold that the trial court properly concluded that Morrell had not met its threshold burden to establish it was a “person entitled to [a] lien” under section 53.021 of the Texas Property Code, we need not reach these additional grounds challenging the trial court’s alternative bases for concluding Morrell’s lien is invalid and/or unenforceable.   

3. Attorney’s Fees Award    

In issue eight, Morrell argues that “the trial court erred when it found that the Attorney’s Fees incurred by [SGA] are damages awarded to [SGA] for breach of the Agreement.”  Specifically, it contends that if SGA’s “only damages are attorney’s fees expended in defending themselves from Morrell’s claim, then [SGA] has no ‘damages’ for purposes of an award of Attorney’s fees for a breach of contract action.”  This is because, Morrell asserts, section 38.001 of the Texas Civil Practice and Remedies Code—which allows the recovery of attorney’s fees in a breach of contract case—requires the party recover actual damages to be entitled to attorney’s fees. See MGM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 666 (Tex. 2009).

Without citation to authority, SGA responds that it is entitled to “damages incurred by SGA as a consequence of the breach of the agreement SGA had with Morrell,” i.e., “the costs and attorney’s fees SGA had to expend to defend the lawsuit.” Alternatively, SGA contends the trial court’s award of attorney’s fees are proper under section 53.156 of the Texas Property Code, which permits an award of “equitable and just” attorney’s fees “in any proceeding to declare that any lien or claim is invalid or unenforceable in whole or in part.”  Tex. Prop. Code Ann.
§ 53.156 (Vernon 2007).  Finally, SGA notes that, in an action for promissory estoppel, a plaintiff may recover attorney’s fees.  See Traco, Inc. v. Arrow Glass Co., 814 S.W.2d 186, 193 (Tex. App.—San Antonio 1991, writ denied).

We agree with Morrell that section 38.001 of the Texas Civil Practice and Remedies Code, the trial court’s cited basis for its award of attorney’s fees, does not authorize an award of attorney’s fees to SGA in this case.  The trial court found that Morrell breached its agreement with SGA that Morrell would obtain approval from SGA before releasing materials to Ruiz for use at SGA jobsites on credit to Ruiz.  This formed the basis of the trial court’s finding that Morrell was estopped from enforcing any lien, and the basis for the trial court’s holding that SGA prevailed on its counterclaim for breach of contract.  But section 38.001 requires more than a party prevail on a breach of contract claim; that party must also recover actual damages for that breach.  Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 201 (Tex. 2004) (per curiam) (noting that even though claimant had valid claim, it “was not entitled to recover attorney’s fees because it was not awarded damages on its breach of contract claim”); Cytogenix, Inc. v. Waldroff, 213 S.W.3d 479, 489 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (“As the Texas Supreme Court has clarified, however, section 38.001(8) requires that a party recover actual damages to be entitled to an award of attorney’s fees.”).

We likewise reject SGA’s argument that the availability of attorney’s fees in a promissory estoppel case can support the trial court’s award.  While SGA did plead estoppel as an affirmative defense to the enforceability of Morrell’s lien, no promissory estoppel claim is at issue in this case.

We hold, however, that the trial court’s attorney’s fee award can be affirmed under section 53.156 of the Texas Property Code.  In its petition, Morrell requested it be awarded “reasonable attorney’s fees under provisions of Chapter 53, Section 53.156 of the Texas Property Code.”  In its answer, SGA asserted a counterclaim for breach of contract and sought to “recover reasonable and necessary attorney fees under § 38.001 of the Texas Civil Practices and Remedies Code.”  The trial court made factual findings that “Morrell breached the Agreement it had with SGA,” and that “SGA made demand for attorneys fees which Morrell failed to pay.”  It further found that “SGA incurred reasonable and necessary attorney’s fees to enforce its agreement with Morrell in the amount of $7,525.00.”  In its conclusions of law, the court stated that “the attorneys fees incurred by SGA are damages awarded to SGA for breach of the Agreement.” 

Attorney’s fees may not be recovered unless provided for by statute or by contract between the parties. Dallas Cent. Appraisal Dist. v. Seven Inv. Co., 835 S.W.2d 75, 77 (Tex. 1992).  “Absent a mandatory statute, a trial court’s jurisdiction to render a judgment for attorney’s fees must be invoked by pleadings, and a judgment not supported by pleadings requesting an award of attorney’s fees is a nullity.”  Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287 S.W.3d 877, 884 (Tex. App.—Dallas 2009, no pet.).    

“The office of pleadings is to define the issues at trial, and to give the opposing party information sufficient to enable him to prepare a defense.” Id. (quoting State v. Estate of Brown, 802 S.W.2d 898, 900 (Tex. App.—San Antonio 1991, no pet.)).  “Texas follows a ‘fair notice’ standard for pleading, in which courts assess the sufficiency of pleadings by determining whether an opposing party can ascertain from the pleading the nature, basic issues, and the type of evidence that might be relevant to the controversy.”  Id. (quoting Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007)); see also Tex. R. Civ. P. 47.  “[I]n passing on the sufficiency of a pleading, all allegations in the adversary’s pleading may be considered, and any omission in the pleading is cured when the omission is supplied by the opponent’s pleading.”  See Alan Reuber Chevrolet, Inc., 287 S.W.3d at 884.

The Fourteenth Court of Appeals has held that a party’s pleading facts that entitle it to attorney’s fees under a particular statute and a general request for attorney’s fees can support an award of attorney’s fees under a different, unpleaded statute:

Appellees respond that the Owners never raised the applicability of Property Code section 5.006(a) before the trial court, thus waiving the issue for appeal. However, if a party pleads facts which, if true, entitle him to the relief sought, he need not specifically plead the applicable statute in order to recover under it. Further, “pleading an incorrect or inapplicable theory or statute, as was done here, does not preclude an award.”  The Owners’ petition includes a detailed recitation of the declaration’s restrictions and of Appellees’ breach of those restrictions.  Although the petition seeks attorneys’ fees under the Declaratory Judgment Act or the Uniform Condominium Act, it also includes a general prayer for attorney’s fees.  We find that the pleadings suffice to recover attorney’s fees.

Mitchell v. LaFlamme, 60 S.W.3d 123, 130 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (citations omitted); see also Alford v. Marino, No. 14-04-00912-CV, 2005 WL 3310114, at *8–9 (Tex. App.—Houston [14th Dist.] Dec. 8, 2005, no pet.) (mem. op.) (party who pleaded and argued at trial for attorney’s fees under section 38.001 of the Texas Civil Practice and Remedies Code was entitled to attorney’s fees under unpleaded Probate Code section because she pleaded facts that, if true, entitled her to the relief sought); Alan Reuber Chevrolet, Inc., 287 S.W.3d at 886–87 (party’s  general prayer for attorney’s fees in answer could support attorney’s fees award under provision of contract, in part because opposing party sought and specifically pleaded for attorney’s fees under specific contract provisions, so opposing party was on notice through its own pleading that attorney’s fees under contract was at issue).  But see Janicek v. 2016 Main Owners Ass’n, No. 01-96-00599-CV, 1997 WL 414951, at *5 (Tex. App.—Houston [1st Dist.] July 24, 1997, no pet.) (not designated for publication) (holding attorney’s fees award could not be supported by Declaratory Judgment Act, both because the party only pleaded for contract and Probate Code attorney’s fees, and because the party’s requested declaratory relief was moot so there was “no bona fide controversy for the court to decide under the declaratory relief claim”).

“We review conclusions of law de novo to determine whether they are correct.” City of Houston v. Cotton, 171 S.W.3d 541, 546 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).  While the trial court’s conclusions of law specify that the attorney’s fees it awarded are for “breach of the Agreement,” we are not limited to the trial court’s conclusions of law.  Rather, we may affirm if “the controlling findings of fact support the judgment under a correct legal theory.”  Id.  

Here, the plaintiff Morrell first requested attorney’s fees under section 53.156 of the Texas Property Code, permitting attorney’s fees “in any proceeding to declare that any lien or claim is invalid or unenforceable in whole or in part.”  In response, SGA requested attorney’s fees under the Texas Civil Practice and Remedies Code for Morrell’s breach of its agreement with Morrell. The theory tried to the court was, in large part, that Morrell’s breach of that agreement should render any lien invalid or unenforceable. 

Under these circumstances in which SGA pleaded facts entitling it to the relief sought and when Morrell cannot claim—based on its own pleadings seeking attorney’s fees under section 53.156—to be surprised, we hold that the trial court’s award of attorney’s fees can be supported by section 53.156.  Morrell does not challenge the trial court’s finding that the amounts awarded are reasonable and necessary.  We overrule Morrell’s eighth issue.

CONCLUSION

We affirm the trial court’s judgment.

                                                                   Sherry Radack

                                                                   Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Wilson.[2]

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[1]           Morrell uses the abbreviation “GC” to connote “general contractor.” 

[2]           The Honorable Randy Wilson, 156th District Court of Harris County, Texas, participating by assignment.