Shawn Shamaei v. Keith Conway

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00358-CV
SHAWN SHAMAEI APPELLANT
V.
KEITH CONWAY APPELLEE
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FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY
TRIAL COURT NO. 2013-005639-3
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MEMORANDUM OPINION1
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I. Introduction
In a single issue, appellant Shawn Shamaei appeals from the trial court’s
judgment awarding recovery to appellee Keith Conway on his breach of contract
claim. We affirm.
1
See Tex. R. App. P. 47.4.
II. Facts
In December 2012, Shamaei and Conway entered into an oral contract
whereby Conway, a licensed architect, would prepare architectural plans to
remodel a building owned by Shamaei. Shamaei needed the renovation work to
prevent the City of Euless from demolishing his building.
Although both parties agreed that Conway’s compensation rate was $50
per hour, the parties disagreed as to the total amount that was agreed to be paid
under the contract. Conway testified that they agreed he would receive $50 per
hour until the architectural work was completed, but Shamaei testified that
Conway would receive $50 per hour, not to exceed $5,000, representing no more
than 100 total hours of work.2
Conway worked on the project from mid-December 2012 until the end of
February 2013 and submitted periodic invoices to Shamaei totaling $15,450.
2
Shamaei testified as follows:
A: [H]e told me that he’s going to charge me $50 per hour.
And I ask him how long does it take him to do -- how long -- how
does he charge. He says he does by the hour. And I told him by
measurement and the design that he has, how long is [it] going to
take him to do it? He said maximum a hundred hours. I knew it was
too much for that, you know, 1300 square feet building, but I did it for
100 hours maximum for $50 per hour.
Q: So that’s $5,000?
A: $5,000 his fee exactly.
2
Shamaei paid some, but not all, of the invoices, leaving an unpaid balance of
$9,450. Shamaei did not complain about any of the amounts billed until
approximately a month after the final invoice had been submitted, by which time
Shamaei had used the architectural services provided by Conway, the
remodeling work had been completed, and the building had been saved from
demolition. Conway sued Shamaei for breach of contract after Shamaei refused
to pay his final invoice.
The trial court awarded $7,8503 to Conway on the contract claim, plus
attorney’s fees, prejudgment interest, post judgment interest, and costs. Neither
party requested findings of fact and conclusions of law, and none were made by
the trial court.
III. Analysis
In his single issue, Shamaei complains that the trial court erred by finding
that a contract existed because an essential term was missing, i.e., the maximum
amount of hours it would take to complete the work, and because Conway failed
to present any evidence of the reasonable value for the architectural services
rendered.
3
This figure took into account Conway’s testimony that he had mistakenly
over-billed Shamaei in the amount of $1,000, along with a subtraction of $600
that Conway billed for a “site visit” and that the trial court apparently found not to
be part of the agreement.
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A. Standard of Review
In a trial to the court in which no findings of fact or conclusions of law are
filed, the trial court’s judgment implies all findings of fact necessary to support it.
Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766–67 (Tex. 2011); Wood v. Tex. Dep’t
of Pub. Safety, 331 S.W.3d 78, 79 (Tex. App.—Fort Worth 2010, no pet.). When
a reporter’s record is filed, however, these implied findings are not conclusive,
and an appellant may challenge them by raising both legal and factual sufficiency
of the evidence issues. When such issues are raised, the applicable standard of
review is the same as that to be applied in the review of jury findings or a trial
court’s findings of fact. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.
1989); Liberty Mut. Ins. Co. v. Burk, 295 S.W.3d 771, 777 (Tex. App.—Fort
Worth 2009, no pet.). The judgment must be affirmed if it can be upheld on any
legal theory that finds support in the record. Rosemond, 331 S.W.3d at 767;
Liberty Mut., 295 S.W.3d at 777.
We may sustain a legal sufficiency challenge only when (1) the record
discloses a complete absence of evidence of a vital fact; (2) 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) the evidence offered to prove a vital fact is no more than a
mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital
fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),
cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and
“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In
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determining whether there is legally sufficient evidence to support the finding
under review, we must consider evidence favorable to the finding if a reasonable
factfinder could and disregard evidence contrary to the finding unless a
reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228
S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827
(Tex. 2005).
Anything more than a scintilla of evidence is legally sufficient to support the
finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996);
Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). More than a scintilla of
evidence exists if the evidence furnishes some reasonable basis for differing
conclusions by reasonable minds about the existence of a vital fact. Rocor Int’l,
Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002).
Any ultimate fact may be proved by circumstantial evidence. Russell v.
Russell, 865 S.W.2d 929, 933 (Tex. 1993). A fact is established by
circumstantial evidence when the fact may be fairly and reasonably inferred from
other facts proved in the case. Id.
B. Terms of the Contract
Shamaei argues that trial court erred by permitting recovery because there
was no agreement on the maximum number of hours it would take to complete
the job. Without a cap on the number of hours to be worked, the total maximum
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contract price cannot be calculated.4 Shamaei argues that a total maximum
contract price is an “essential term,” without which the contract is unenforceable.
While Shamaei is correct that essential terms of a contract must be agreed
upon before a court can enforce it, see T.O. Stanley Boot Co. v. Bank of El Paso,
847 S.W.2d 218, 221 (Tex. 1992), when parties have done everything else
necessary to make a binding agreement for services, even the failure to specify a
price will not leave the contract so incomplete that it cannot be enforced.
Pennington v. Gurkoff, 899 S.W.2d 767, 770 (Tex. App.—Fort Worth 1995, writ
denied). In such a case, a presumption arises that a reasonable price was
intended. Id. (citing Bendalin v. Delgado, 406 S.W.2d 897, 900 (Tex. 1966);
Polland & Cook v. Lehmann, 832 S.W.2d 729, 739–40 (Tex. App.—Houston [1st
Dist.] 1992, writ denied)).
In this case, Shamaei received Conway’s second invoice by email on
February 23. This invoice billed for 110 hours of Conway’s work, an amount
which, on its face, exceeded the 100-hour ceiling Shamaei had sought to
impose.5 At this point, the job was still not complete. Yet Shamaei allowed
Conway to continue work on the project without a single protest, complaint, or
4
We infer from the judgment that the trial court found that a 100-hour cap
on Conway’s services was not part of the agreement. See Rosemond, 331
S.W.3d at 766–67; Wood, 331 S.W.3d at 79.
5
When combined with the January 14 invoice, by February 23 Conway had
billed Shamaei for a total of 178 hours of work.
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objection as to the number of hours Conway had expended on the project to
date.
Moreover, faced with invoices that exceeded 100 hours almost two-fold,
Shamaei continued to actively engage Conway in the final push to finalize the
plans and obtain City permits necessary for the renovation process. Text
communications exchanged between the parties during this critical period of time
demonstrate a flurry of activity between Shamaei and Conway related to the
project.6 On February 27, Shamaei specifically directed Conway’s work, asking
him to respond to an email from a city official and to change the location of the
dumpster on the plans in order to finalize the permit process with the City. These
communications evidence an ongoing agreement between the parties to work
beyond the hours already expended by Conway to get the plans approved and
the architectural work done.
On March 4, the permit was approved and Conway had ceased billing for
his time. Four days later, Shamaei received the third and final invoice, which
added another fifty hours of work for those last days leading up to final City
approval. Rather than speak up when faced with invoices that had more than
doubled what Shamaei claimed was the agreed-upon limit, the record reflects
that Shamaei again remained silent. Not until almost a month later, after he had
6
Included were discussions regarding matters such as reviewing the City of
Euless’s comments to the architectural plans and identifying the types of
chemicals that would be stored on the premises.
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used Conway’s architectural plans to complete his renovation project and save
his building from demolition, did Shamaei, in response to a request for final
payment by Conway, first claim he did not believe the invoiced time was
reasonable.
Given the conduct and course of dealings between the parties as reflected
in the record, the trial court could have found that Shamaei accepted Conway’s
ongoing work as reasonable and necessary to complete the job. Because the
record reveals more than a scintilla of evidence to support the finding that the
hours as billed by Conway in performing the contract were reasonable, we hold
that the evidence is legally sufficient to support the judgment. See Tex. Delta
Upsilon Found. v. Fehr, 307 S.W.2d 124, 131–32 (Tex. Civ. App.—Austin 1957,
writ ref’d n.r.e.) (holding evidence sufficient to support jury finding on reasonable
value of architects’ services under contract that had no cost limitation but only an
estimated cost approximation and finding a duty on the part of the client to inform
the architects that their services were no longer desired when cost became a
factor; otherwise, a duty on the part of the architect to continue to work).
We overrule Shamaei’s sole issue.
IV. Conclusion
Having overruled Shamaei’s sole issue, we affirm the trial court’s
judgment.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
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PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.
DELIVERED: April 30, 2015
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