Thomas Dumler and Leslie Dumler v. Quality Work by Davidson and Tri-Way Enterprises

Affirmed and Memorandum Opinion filed January 10, 2008

Affirmed and Memorandum Opinion filed January 10, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00536-CV

____________

THOMAS DUMLER and LESLIE DUMLER, Appellants

V.

QUALITY WORK BY DAVIDSON and TRI-WAY ENTERPRISES, Appellees

On Appeal from the County Civil Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 780,487

M E M O R A N D U M   O P I N I O N

Thomas Dumler and Leslie Dumler appeal from a judgment awarding them actual damages of $3,000 for breach of contract and attorney=s fees of $10,000 against appellees Quality Work by Davidson (Quality Work) and Tri-Way Enterprises (Tri-Way).^[1] In three issues, the Dumlers complain that the trial court erred by conducting the trial over a period of two years and two months, the award of attorney=s fees is arbitrary and unreasonable, and the damages award is against the great weight and preponderance of the evidence.  We affirm the trial court=s judgment.

                                     I.  Background

This appeal arises out of a construction contract between the Dumlers and contractors Quality Work and Tri-Way.  In December 2001, the Dumlers signed a remodeling contract with Quality Work for repairs and renovations on their home.  Quality Work subcontracted with James Lupo of Tri-Way to install marble tile in two bathrooms in the house_the powder room and the master bathroom.

The Dumlers paid Quality Work on a time and materials basis as they received invoices until June of 2002, when the Dumlers noticed that tile installed in the powder room had blistered.  Unhappy with the quality of the tile installation, the Dumlers stopped making payments.  Kent Davidson, owner of Quality Work, agreed the tile needed to be redone.  He told Mrs. Dumler that if the Dumlers would buy the replacement tile, he would reinstall it for free.  At this point, Mrs. Dumler told Davidson she only wanted to deal with Lupo.  

Further negotiations ensued between Mr. Dumler and Davidson regarding the Dumlers= dissatisfaction and refusal to pay.  The parties agreed that upon Quality Work undertaking  certain repairs, the Dumlers would send Quality Work a check for the outstanding bill to date.  Although the parties dispute whether Davidson quit or was fired, it is clear that the agreement fell through.  Mr. Dumler claimed he stopped paying because Quality Work Awalked off the job@ and did not uphold its promise to start the requested repairs.  Davidson claimed he quit working because he was Afired@ and was not receiving payment.  Tri-Way ultimately replaced the blistered tile in the powder room. 

In August 2002, the Dumlers sent Quality Work a check for about $14,500.  The letter accompanying the check explained the Dumlers were deducting approximately $4,900 for costs the Dumlers incurred to complete the powder and master bathrooms from the $19,391.89 Quality Work claimed the Dumlers still owed.  The Dumlers claim they later noticed that tile in both the powder room (which had already been replaced once by Tri-Way after it blistered) and the master bathroom was coming loose.

Quality Work and Tri-Way filed suit for the outstanding $4,900 in October 2002.  The Dumlers counterclaimed under the Residential Construction Liability Act and the Deceptive Trade Practices Act and also alleged breach of contract, breach of express and implied warranties, fraud, negligent misrepresentation, and negligence.  After a bench trial that was conducted in segments over a period of approximately two years, the judge decided against Quality Work on the breach of contract claim and awarded the Dumlers $3,000 in actual damages and $10,000 in attorney=s fees.^[2]

The Dumlers raise three issues on appeal.  In their first issue, the Dumlers complain the trial judge abused his discretion by conducting the trial over two years.  In their second and third issues, the Dumlers challenge the amount of attorney=s fees and damages awarded.

II.  Damages

Standard of Review

The Dumlers appeal the damages award as being against the great weight and preponderance of the evidence.  We review a trial court=s findings for factual sufficiency under the same standards applied in reviewing the evidence supporting a jury=s answer.  Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).  In reviewing a factual sufficiency challenge, we must consider all the evidence in the record, both supporting and contrary to the judgment.  Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).  After weighing all the evidence, the court should set aside the verdict only if the evidence is so weak as to be clearly wrong and manifestly unjust.  Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). 

As the trier of fact in a bench trial, the trial judge is the sole evaluator of the witnesses= credibility and the weight of their testimony.  Peter v. Ogden Ground Servs. Inc., 915 S.W.2d 648, 649 (Tex. App._Houston [14th Dist.] 1996, no writ).  The trial court may draw reasonable inferences from the evidence, and the court=s findings may not be disregarded if the record contains some evidence of probative value from which those inferences may be drawn.  Id. at 649B50.  When, as here, no findings of fact or conclusions of law are requested or filed, we imply all necessary findings in support of the trial court=s judgment.  Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992).  However, because a reporter=s record has been provided, the implied findings may be challenged for factual insufficiency the same as jury findings or a trial court=s findings of fact.  Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989).  We must affirm the judgment on any theory of law that finds support in the evidence.  Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

Analysis

The ultimate goal in measuring damages for a breach of contract claim is to provide just compensation for any loss or damages actually sustained as a result of the breach.  Mays v. Pierce, 203 S.W.3d 564, 577 (Tex. App.CHouston [14th Dist.] 2006, pet. denied).  The normal measure of damages in a breach of contract case is the benefit of the bargain, the purpose of which is to restore the injured party to the economic position it would have been in had the contract been performed.  Id. The party seeking to recover the cost of completion or repairs bears the burden of showing those costs were reasonable and necessary.  Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 200 (Tex. 2004).  To establish that repairs are necessary and reasonable, the magic words Areasonable@ and Anecessary@ need not be used; the injured party need only present sufficient competent evidence so that the trier of fact is justified in concluding that the repairs are necessary and that the costs of repair are reasonable.  Jacobs v. Danny Darby Real Estate, Inc., 750 S.W.2d 174, 174 (Tex. 1988).

The trial court awarded the Dumlers $3,000 for breach of contract damages without specifying whether the damages related to the cost of repairing the powder room or the master bathroom.  The Dumlers contend the damages award is against the great weight and preponderance of the evidence and that the evidence supports an award upwards of $31,000.  Quality Work responds that the damages award is consistent with the evidence presented at trial.  We agree.

The Dumlers presented expert testimony that the loose tile in the powder room required repair.  As further evidence that the tile needed redoing, they also attempted to show that Tri-Way had not properly followed installation instructions.  In response, Quality Work and Tri-Way disputed the expert=s conclusions regarding why the tiles were coming loose.  Counsel for Tri-Way elicited testimony from Lupo that he had correctly followed instructions, had not observed the blistered tile coming loose when he went to replace it, and had laid the present tile (which was now coming loose) in the same manner as the blistered tile (which did not come loose).  Both sides presented evidence that between $2,400 and $4,200 was a reasonable cost for repairing the powder room tile.^[3]

After reviewing the evidence, we conclude the trial court=s implied finding that the Dumlers proved reasonable and necessary repairs in the amount of $3,000 to the powder room tile is supported by factually sufficient evidence.  The trial court heard conflicting testimony regarding the necessity of repairing the powder room.  As the sole judge of the credibility of the witnesses and the weight to be given their testimony, the trial court could have chosen to resolve the conflicting testimonies in the Dumlers= favor.  See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986) (factfinder may resolves inconsistencies in testimony and believe one witness over another).  Moreover, the award of $3,000 fell within the range of repair costs submitted by each side, and estimates of repair costs submitted by both parties that approximate the actual damages awarded by a trial court support the reasonableness of such repairs.  See Hernandez v. Lautensack, 201 S.W.3d 771, 777 (Tex. App.CFort Worth 2006,

pet. denied) (where damage award fell within range of costs testified to by each side, such testimony was some evidence supporting jury award for reasonable cost of repairs). 

We further conclude the trial court=s implied finding that the Dumlers failed to demonstrate reasonable and necessary repairs to the master bath tile is supported by the evidence.  The Dumlers presented expert testimony regarding the substandard quality of work in the master bathroom.  In support of their argument that the evidence proves $30,000 in reasonable repairs to the master bath, the Dumlers point to Davidson=s testimony. Davidson testified he charged the Dumlers around $30,000 for installation of the master bath tile and that he had never sent out a bill that he believed was unreasonable.^[4] From this testimony, the Dumlers infer that since redoing the master bath tile should cost at least as much as the original job, then logically $30,000 is a reasonable cost for repairs to the master bath.  The Dumlers also submitted quotes from outside contractors estimating repairs to the master bathroom at upwards of $30,000.

The trial judge could have chosen to disbelieve the Dumler=s expert and to disagree with the Dumlers= interpretation of Davidson=s testimony, leaving no evidence on the necessity of repairs to the master bathroom.  See McGalliard, 722 S.W.2d at 697 (trier of fact is afforded considerable discretion in evaluating opinion testimony on issue of damages).  The Dumlers submitted estimates from the outside contractors.  However, there was no direct testimony regarding what repair costs to the master bathroom, if any, were reasonable, and this court has held that invoices alone, without testimony on reasonableness, will not suffice to prove the repairs were reasonable.  See Allright Inc. v. Lowe, 500 S.W.2d 190, 192 (Tex. Civ. App.CHouston [14th Dist.] 1973, no writ) (receipted bills alone are insufficient to show amounts paid were reasonable); cf. Carrow v. Bayliner Marine Corp., 781 S.W.2d 691, 694B95 (Tex. App.CAustin 1989, no writ) (record contained some evidence of reasonableness of repairs where expert testified to his estimate of what it would cost to make repairs).  Thus, although the Dumlers presented some evidence on master bath repairs, the trial court could have concluded the Dumlers failed to demonstrate reasonable and necessary repairs of $30,000 to the master bath.  See Ebby Halliday Real Estate v. Murnan, 916 S.W.2d 585, 589B90 (Tex. App.CFort Worth 1996, writ denied) (sustaining no evidence challenge to damages award, stating that although evidence showed plaintiffs believed repairs were necessary, with no evidence that specific work done was necessary and no testimony that costs spent on repairs were reasonable, jury was left to speculate).  Because the Dumlers did not show a reasonable and necessary amount to repair the master bath, we conclude the trial judge was justified in impliedly awarding zero damages for this.

We hold that the evidence is factually sufficient to support the trial court=s implied finding of $3,000 for reasonable and necessary repairs to the powder room tile.  Further, we do not find the trial court=s implied finding that the evidence failed to support an award of damages for repairs to the master bathroom so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.  We overrule the Dumlers= third issue.

III.  The Course and Conduct of the Trial

We turn now to the Dumlers= first issue. They argue that conducting the trial intermittently over a period of more than two years constituted an abuse of discretion that prejudiced them and resulted in memory lapses on the judge=s part, as evidenced by an arbitrary and unreasonable damages award.  Quality Work responds that the trial court acted within its discretion, and even if it did not, by failing to timely object^[5] to the manner in which the judge conducted the trial, the Dumlers waived error and may not now raise the issue on appeal.  We agree that error, if any, was waived.

To preserve error, a timely, specific objection must be made.  Tex. R. App. P. 33.1(a).  The requirement to act timely encompasses not only the objection itself but also all grounds allegedly supporting it.  Both the objection and all legal bases for it must be timely asserted. Hoxie Implement Co. v. Baker, 65 S.W.3d 140, 145 (Tex. App.CAmarillo 2001, pet. denied) (citing Credille v. State, 925 S.W.2d 112, 115B16 (Tex. App.CHouston [14th Dist.] 1996, writ ref=d)).  An objection is considered timely urged when it is asserted at the earliest opportunity, id. at 152, or interposed at a point in the proceedings in which the trial court has an opportunity to cure any alleged error, Brown v. Pittsburgh Corning Corp., 909 S.W.2d 101, 104 (Tex. App.CHouston [14th Dist.] 1995, writ denied).  Raising the objection and grounds for the first time in a motion for new trial does not satisfy the contemporaneous objection rule if the complaint could have been urged earlier.  St. Paul Surplus Lines v. Dal‑Worth Tank Co., 974 S.W.2d 51, 53 (Tex. 1998).

Trial began on February 19, 2004 and lasted for one day.  Testimony resumed for a second day five months later on August 4, 2004.  At the close of testimony that day, the judge said, AWe=re wrapping up for this evening. You=ll be notified when we reset it.  I have no idea when that will be.@  The Dumlers raised no objection to this announcement. Testimony resumed for the third and last day on April 27, 2005.  The judge concluded the day by saying,

I=m asking you lawyers to take a pause again.  Come back next year B no.  As long [or] as little time [as] the lawyers take when they review the records, what=s been admitted into evidence, everything was here. . . . Kind of clean up, if necessary, if everybody agrees on that.  It could be tomorrow, it could be a week from now.

Again, the Dumlers raised no objection.  Closing arguments were held in the judge=s chambers four months later, but no court reporter was present to record the arguments.  The trial court issued its ruling eight months after closing arguments.  The Dumlers objected to the time delays for the first time in their motion for a new trial.

Objecting to the trial schedule during the course of the proceedings would have given the trial court opportunity to cure any alleged error.  By waiting until after judgment was entered to object, the Dumlers= objection was not timely.  Thus, they waived any error with respect to this issue.  See Daily v. Wheat, 681 S.W.2d 747, 758 (Tex. App._Houston [14th Dist.] 1984, writ ref=d n.r.e.) (appellant waived issue where she did not complain of six‑person jury limitation until motion for new trial); cf. Employers Ins. of Wausau v. Horton, 797 S.W.2d 677, 680 (Tex. App._Texarkana 1990, no writ) (vacated pursuant to settlement) (appellant preserved error by voicing objection to continuing trial late into the evening, on grounds that jurors were tired, at time judge informed parties they would have to stay late); see also Pittsburgh Corning, 909 S.W.2d at 104 (party cannot wait until trial is finished and then seek to reverse an unfavorable verdict by complaining of an error which the trial court could have corrected had it been timely raised). 

Moreover, the Dumlers have failed to show any prejudice.  To reverse a judgment on the ground of judicial misconduct, we must find both judicial impropriety and probable prejudice to the complaining party.  Bott v. Bott, 962 S.W.2d 626, 631 (Tex. App._Houston [14th Dist.] 1997, no pet.).  The Dumlers= only argument regarding prejudice is that the Astarting and stopping of the trial resulted in memory lapses on behalf of the judge as well as an arbitrary and unreasonable damages award.@  We have already determined the trial court acted within its discretion with regard to the damages award. Further, allegations that the judge did not remember the evidence are unfounded in the record.  At the start of the second day of trial, five months after the first day, the judge stated, Anot only do I actually have a real recollection, but the attorneys have been in my office earlier, and they were kind of reminding me.@  And at the conclusion of the third day of testimony, the judge attempted to reassure the attorneys about his memory of the case: AWhat I want to make sure most of all, ya=ll don=t feel like, because of this being so disjointed, my ruling_I want to make sure I remember distinctly the things I need to.@  The trial judge gave the attorneys the opportunity to make closing arguments to emphasize significant evidence. The Dumlers have not shown any specific instance of the trial judge suffering a prejudicial memory lapse, and the record shows the judge was actively working to ensure he remembered the details.  We therefore overrule the Dumlers= first issue.

IV. Attorney=s Fees

In their second issue, the Dumlers claim the trial court abused its discretion by rendering an arbitrary and unreasonable award of attorney=s fees.  The trial court awarded $10,000 in attorney=s fees, but the Dumlers claim they are entitled to an award of at least $30,000. 

We first address Quality Work=s contention that the Dumlers waived attorney=s fees under section 38.001.  See Tex. Civ. Prac. & Rem. Code Ann. ' 38.001 (Vernon 1997).  In their amended answer, the Dumlers specifically requested attorney=s fees under sections 10.001 and 10.004 Civil Practice and Remedies Code, which pertain to sanctions for filing frivolous pleadings.  See id. '' 10.001, 10.004 (Vernon 1997).  The pleadings also request attorney=s fees in the general prayer for relief.  Section 38.001(8) allows recovery of reasonable attorney=s fees when a party prevails on a breach of contract claim.  Id. ' 38.001(8).  The judgment awarded the Dumlers actual damages for breach of contract and reasonable attorney=s fees in the amount of $10,000 for prosecution of the case.

Quality Work argues that by failing to plead for attorney=s fees under section 38.001, the Dumlers waived any claim for attorney=s fees under that section.  Alternatively, Quality Work contends that even if the Dumlers did not waive their right to attorney=s fees under section 38.001, they did not Apresent@ their claim as required by section 38.002.^[6]

In effect, by arguing the Dumlers waived any right to attorney=s fees under section 38.001(8) and thus were not even entitled to the $10,000 the trial court awarded, Quality Work seeks to alter the trial court=s judgment.  A party seeking to alter the trial court=s judgment must file a notice of appeal.  Tex. R. App. P. 25(c); Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993).  Because Quality Work did not file a notice of appeal, it waived this challenge.  See Lubbock County  v. Trammel=s Lubbock Bail Bonds, 80 S.W.3d 580, 584 (Tex. 2002) (county seeking to alter trial court=s judgment could not appeal appellate decision to supreme court due to failure to file notice of appeal).

Quality Work also waived error with regard to its Apresentment@ argument.  To recover attorney=s fees under section 38.001, the claimant must present the claim to the opposing party, who then has thirty days to tender payment.  See Tex. Civ. Prac. & Rem. Code Ann. ' 38.002(2).  Quality Work raises this argument for the first time on appeal.  Because it did not raise this claim to the trial court, Quality Work failed to preserve error on presentment.  See Tex. R. App. P. 33.1(a); Evans Cooperage of Houston, Inc. v. Port Drum Co., No. C14‑92‑00966‑CV, 1994 WL 7243, at *2 (Tex. App._Houston [14th Dist.] Jan. 13, 1994, writ denied) (not designated for publication).

We turn now to the Dumlers= contention that the award of $10,000 in attorney=s fees, rather than $30,000, constitutes an abuse of discretion.  We review the trial court=s decision to award attorney=s fees for abuse of discretion.  Oake v. Collin County, 692 S.W.2d 454, 455 (Tex. 1985).  An award of reasonable attorney=s fees must be supported by some evidence.  Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991).  The amount and reasonableness of attorney=s fees is a question of fact involving several intangible factors.  Mack v. Moore, 669 S.W.2d 415, 419B20 (Tex. App_Houston [1st Dist.] 1984, no writ). In this case, the trial court was the trier of fact with regard to the reasonableness and amount of the attorney=s fees and must take into account various factors such as the nature and complexity of the case, the nature of the services provided by counsel, the time required for trial, the amount of money involved, the client=s interest that is at stake, the responsibility imposed upon counsel, and the skill and expertise required.  Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex. 1990).  The judge could also have drawn on his own expertise in deciding how much to award.  Mack, 669 S.W.2d at 420. 

The only evidence on attorney=s fees offered were invoices the Dumlers= attorney billed.  The trial court considered all the evidence and awarded $10,000 in attorney=s fees.  Because the trial court had before it sufficient evidence regarding the services provided, the amount of money involved, the time required for trial, and the complexity of the case, we cannot say that this award was so arbitrary or unreasonable as to require reversal.  See Dail v. Couch, 99 S.W.3d 390, 391 (Tex. App.CCorpus Christi 2003, no pet.) (trial court had discretion to reduce attorney=s fees from the $8,000 prayed for to $2,500, despite uncontroverted expert testimony); Fonmeadow Prop. Owners= Ass=n v. Franklin, 817 S.W.2d 104, 105 (Tex. App.CHouston [1st Dist.] 1991, no writ) (attorney=s fees award affirmed, even though party offered proof of higher amount at trial, because trial judge could find some fees claimed were unreasonable or unwarranted or other circumstances making an award in amount prayed for wrong).  We conclude the trial court did not abuse its discretion in awarding $10,000 attorney=s fees.  We overrule the Dumlers= second issue.

We affirm the trial court=s judgment.

/s/      Leslie B. Yates

Justice        

Judgment rendered and Memorandum Opinion filed January 10, 2008.

Panel consists of Justices Yates, Fowler, and Guzman.

---

^[1]  Tri-Way did not file an appellee brief.

^[2]  At the close of the third day of testimony, the trial court sustained Quality Work=s request for a directed verdict on the claims for fraud and misrepresentation.  The trial court did not rule on the Dumlers= other causes of action.  Neither party requested and the trial court did not enter findings of fact or conclusions of law.

^[3]  The Dumlers= estimates ranged from $3,455 to $4,190.  Davidson testified that $2,400 was reasonable to repair the tile walls and $1,000 to $1,500 was reasonable for repairing the tile floor (excluding the cost of materials).

^[4]  Quality Work charged $17,750 to install tile in the master bathroom and another $11,600 for molding and trim work.

^[5]  The Dumlers first objected to the manner in which the trial was being conducted in their motion for new trial.

^[6]  To recover attorney=s fees under this chapter:

(2) the claimant must present the claim to the opposing party or to a duly authorized agent of the opposing party; and

(3) payment for the just amount owed must not have been tendered before the expiration of the 30th day after the claim is presented.

Tex. Civ. Prac. & Rem. Code Ann. ' 38.002 (Vernon 1997).