Howard Hamilton v. Pat McClure D/B/A P.J.'s Contents Cleaning & the Beneke Company

hamilton v. mcclure IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





ON MOTION FOR REHEARING





NO. 3-92-170-CV





HOWARD HAMILTON,

APPELLANT

vs.





PAT MCCLURE d/b/a P.J.'S CONTENTS CLEANING AND THE BENEKE COMPANY,

APPELLEES

FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY

NO. 193,116, HONORABLE MICHAEL J. SCHLESS, JUDGE PRESIDING

The opinion of the court dated December 9, 1992, is withdrawn and this opinion is substituted therefore.

Pat McClure brought suit to recover from Howard Hamilton expenses she incurred while cleaning items damaged by a fire that ravaged his home. Hamilton impleaded the Beneke Company ("Beneke"), asserting claims of breach of contract, negligence, and violation of the Deceptive Trade Practices--Consumer Protection Act ("DTPA"). ⁽¹⁾ In a bench trial, the court awarded McClure the damages she sought and denied Hamilton any recovery against Beneke. It also denied Beneke's counterclaim alleging Hamilton had brought his suit in bad faith and for purposes of harassment.

Hamilton appeals this judgment, raising twenty-five points of error. All but the last attack the legal and factual sufficiency of the evidence, or claim that the court's findings were incorrect as a matter of law and against the great weight and preponderance of the evidence. Beneke claims by cross-point that it was entitled to attorney's fees. We will affirm the trial court's judgment.

Hamilton hired Beneke, a public adjuster, to represent him in dealings with his insurance company after his residence was damaged by a fire. On January 6, 1989, at the request of Beneke's agent, McClure and her crew arrived at Hamilton's house. She informed Hamilton of her willingness to remove any objects that could be cleaned and thus saved from total loss. Beneke's agent explained to Hamilton the insurance company required a homeowner to salvage all property that he could. Hamilton was displeased upon hearing this information; he did not want to salvage any property, wishing instead to declare a total loss. Nevertheless, he permitted McClure to remove his damaged property for cleaning. When his insurance company sent a check in settlement of his claim, it designated that a portion of the money should be paid to McClure. Hamilton refused to send any amount to McClure. She subsequently brought the present action, claiming Hamilton had breached their verbal agreement by failing to pay for moving, storing, and cleaning services she had performed on his behalf.

The record contains no findings of fact or conclusions of law. Therefore, all necessary findings to support the trial court's judgment will be implied. ⁽²⁾ These implied findings, like jury findings, may be attacked by evidentiary challenges. Noble Exploration, Inc. v. Nixon Drilling Co., 794 S.W.2d 589, 590 (Tex. App.--Austin 1990, no writ).

In deciding a legal sufficiency challenge, we must consider only the evidence and inferences tending to support the finding of the trier of fact and disregard all evidence and inferences to the contrary. Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 593 (Tex. 1986), cert. denied, 111 S. Ct. 135 (1990); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). If the point of error attempts to overcome an adverse fact finding as a matter of law and no evidence supports the finding, we must then examine the entire record to see if the contrary proposition is conclusively established. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). When reviewing the factual sufficiency of the evidence, we must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); see generally William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515 (1991).

In Hamilton's first two points of error, he complains about the trial court's finding that he had a contract with McClure. ⁽³⁾ McClure claims that an implied contract for her services existed. An implied contract is formed by conduct. Preston Farm & Ranch Supply, Inc. v. Bio-Zyme Enters., 625 S.W.2d 295, 298 (Tex. 1981). An element of mutual agreement must be shown by the circumstances of the case. Haws & Garrett Gen. Contractors, Inc. v. Gorbett Bros. Welding Co., 480 S.W.2d 607, 609 (Tex. 1972).

The record contains sufficient evidence to support the existence of such a contract. McClure spent all day loading Hamilton's property on her truck, while he stood by and debated with her which items were salvageable. Hamilton made no attempt to dissuade her from continuing her work, nor did he instruct her not to clean the objects she removed. Such circumstances could support the trial court's finding that an implied agreement for McClure's services existed. Furthermore, McClure's claim in her petition for quantum meruit damages has not been challenged by Hamilton on appeal. For both these reasons, we overrule Hamilton's points one and two.

Hamilton's third through sixth points of error challenge the damages awarded McClure. He claims first that the evidence was insufficient to support the reasonableness and necessity of McClure's charges. Her testimony, however, clearly addressed this issue. She testified that her charges were typical ones by her company. She described how she calculated her fees and explained that her cleaning of Hamilton's property was necessary because the insurance company required such measures.

Next, Hamilton asserts that expert testimony was required to prove the reasonableness of McClure's expenses. Hamilton's objection at trial, however, was that McClure could not testify about her expenses because she had not been qualified as an expert. McClure testified about matters within her personal knowledge; Hamilton did not object on this ground. See Tex. R. Civ. Evid. 602. Hamilton provides no authority for his contention that lay witnesses may not testify about damages when their statements consist of facts and permissible inferences within their personal knowledge. Further, he has cited no caselaw for his proposition that the admissible testimony of lay witnesses cannot support a finding of damages without additional expert testimony. Hamilton's points three through six are overruled.

Hamilton's points seven through ten claim that the trial court erred when it failed to find Beneke had breached the parties' contract. The written contract between Hamilton and Beneke contains language about adjusting the loss sustained. Hamilton, however, attempted to introduce parol evidence to supplement these terms. Hamilton testified that Beneke's agent told him that expenses, including the work done by McClure, would be paid for by Beneke out of its commission from the insurance proceeds. The trial court concluded that Hamilton had misunderstood this conversation; the agent told him instead that a rider on the insurance contract would cover these expenses, while certain other expenses, not including those at issue here, would be paid by Beneke. The testimony by both McClure and Jim Beneke, an officer of Beneke, supports this finding. There was sufficient evidence for the court to find that the contract between Hamilton and Beneke did not include any terms that obligated Beneke to pay McClure's charges. We overrule points seven through ten.

Hamilton's points of error thirteen and fourteen attack the trial court's failure to find that Beneke violated the DTPA. This DTPA claim was based on the alleged representation by Beneke's agent to Hamilton that McClure's expenses would be covered by Beneke's commission. Based on its findings concerning the conversation regarding the breach of contract issue, the court failed to find any representation was made. The great weight and preponderance of the evidence does not require a different result; Hamilton's explanation was contradicted by the testimony of McClure and Jim Beneke, as previously stated. We overrule points thirteen and fourteen.

Points of error eleven and twelve deal with the trial court's denial of Hamilton's claim that Beneke was negligent. First, Hamilton insists Beneke's agent failed to tell McClure not to clean the objects she had stored. Since the court found a contract existed between Hamilton and McClure for cleaning these items and also failed to find that Beneke contracted to assist or pay for this operation, the court concluded that Beneke owed no duty to Hamilton. We cannot say this reasoning was incorrect. Second, Hamilton alleges that Beneke negligently failed to inform him in writing which expenses would be covered by the parties' contract. This allegation was mentioned briefly during the cross-examination of Jim Beneke; no evidence was introduced regarding duty, standard of care, proximate cause, or damages. Points eleven and twelve are overruled.

Points fifteen through twenty-four complain about the trial court's holding that the statute of limitations barred Hamilton's claims. Because the trial court denied Hamilton recovery on other substantive grounds, any error on this procedural issue would be harmless. We overrule these points.

Hamilton's final point asserts that the trial judge resigned before signing findings of fact and conclusions of law. On rehearing, he has moved to amend the record to include these alleged findings and conclusions he submits were signed but mistakenly omitted. ⁽⁴⁾ Even if we granted his untimely motion to amend, there is no evidence in the record of the trial court's resignation. Finally, even if we granted Hamilton's motion to amend, assumed the occurrence of the resignation, and sustained his point of error, our result would not change. Hamilton would not be entitled to a new trial, as he suggests; ⁽⁵⁾ we would simply be forced to imply findings to support the trial court's judgment, as we have already done. This point is overruled.

Beneke argues in its one cross-point that the trial court should have awarded it attorney's fees of $4,000 for this appeal. The court denied Beneke's claim that Hamilton had brought his action against it in bad faith or for harassment. No cross-point has been raised regarding this issue. Beneke appears to believe it should be awarded attorney's fees because it successfully resisted Hamilton's claims. Without statutory authority, of course, a prevailing party normally does not recover such fees in Texas. Bray v. Curtis, 544 S.W.2d 816, 820 (Tex. Civ. App.--Corpus Christi 1976, writ ref'd n.r.e.). We overrule this point.

The judgment of the trial court is affirmed.

Marilyn Aboussie, Justice

[Before Justices Powers, Aboussie and B. A. Smith]

Affirmed

Filed: February 17, 1993

[Do Not Publish]

1.   All references to the DTPA are to Tex. Bus. & Com. Code Ann. §§ 17.41-17.63 (West 1987 & Supp. 1992).

2.   Hamilton filed a request for findings of fact and conclusions of law that contained no specific findings and conclusions he wished the court to adopt. The failure of the trial court to file findings and conclusions might prevent us from implying that the court had rejected any actual findings and conclusions Hamilton had requested. See Loomis Int'l v. Rathburn, 698 S.W.2d 465, 467 (Tex. App.--Corpus Christi 1985, no writ). However, when no specific findings were filed or requested, we must imply findings to support the judgment. Carter v. William Sommerville and Son, Inc., 584 S.W.2d 274, 276 (Tex. 1979); State v. Glass, 723 S.W.2d 325, 327 (Tex. App.--Austin 1987, writ ref'd n.r.e.) (findings requested but not filed).

In a three-page letter to the county clerk, Hamilton listed those items he asked the clerk to include in the transcript. The trial court's findings of fact and conclusions of law are not on the list, and if any exist they were not included in the transcript. Hamilton attached to his brief an instrument purporting to be the court's findings, then attacked them in his points of error. After issuance of our opinion and judgment, Hamilton for the first time filed a motion to supplement the record on appeal with findings of facts and conclusions of law that were supposedly filed but not included in the record. However, he further asserts by point of error that these alleged findings and conclusions, once filed, should then be stricken. If we granted his motion and sustained his point of error, the situation would remain identical to the one existing now--the record would contain no findings and conclusions for us to review, and we would have to imply findings to support the judgment.

3.   We must imply from the judgment that the court found that McClure could recover on both her contract claim and her quantum meruit claim, which were pleaded and supported by evidence at trial.

4.   We note that Hamilton apparently knew no findings were in the record on appeal. The record contains a letter from Hamilton to the district clerk requesting specific documents he wanted in the record, including his own request for findings, but not the findings themselves. Subsequently, he attached to his appellate brief an instrument not part of the appellate record but purporting to be the trial court's findings.

5.   Hamilton's appropriate relief from the absence of a valid filing of findings of facts would have been to appeal this situation directly at the time of his request for such findings. See Tex. R. Civ. P. 299. He then could have received the redress he seeks--specific, validly-filed findings on which he could base his appeal.