KNIGHT RENOVATIONS, LLC, Appellant v. Charles R. THOMAS, Appellee
NO. 12-16-00142-CV
Court of Appeals of Texas, Tyler
Opinion delivered August 9, 2017
529 S.W.3d 446
James B. Moulton, Whitehouse, TX, for Appellant.
James W. Volberding, Tyler, TX, for Appellee.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Greg Neeley, Justice
Knight Renovations, LLC. (Knight) appeals from an adverse judgment rendered in favor of Charles R. Thomas in this construction contract dispute. In seven issues, Knight assails the damages awards. We affirm in part and reverse and render in part.
In 2012, Thomas hired Knight to rebuild his home after it was partially destroyed by fire. Thomas agreed to pay $78,004.30. During the course of the work, Thomas paid two installments, totaling $54,853.02. The work took longer than promised, and because he felt the work was not complete or performed properly, Thomas did not make the final payment. Knight sued Thomas for breach of contract, quantum meruit, fraud, and for a declaratory judgment that Thomas acted in violation of the property code by misusing the insurance proceeds. Thomas filed a counterclaim for breach of contract, breach of warranty, and deceptive trade practices act violations. In response, Knight asserted several affirmative defenses. Trial was to the court, which rendered judgment in Thomas‘s favor, awarding him $35,000 in actual damages and $70,000 in exemplary damages, as well as attorneys’ fees, interest, and court costs.
REPAIR COSTS
In its first three issues, Knight asserts that the trial court erred in awarding Thomas $35,000 in damages because there is no evidence to support the award. It argues that, because Thomas did not present any expert testimony or any competent evidence of damages actually incurred, the trial court should have rendered a take-nothing judgment against him.
Standard of Review
A trial court‘s fact findings are reviewable for legal and factual sufficiency of the evidence by the same standards we apply in reviewing the evidence supporting a jury‘s answer. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). When an appellant attacks the legal sufficiency of an adverse finding on an issue on which it did not have the burden of proof, the appellant must demonstrate on appeal that there is no evidence to support the adverse finding. Univ. Gen. Hosp., L.P. v. Prexus Health Consultants, LLC, 403 S.W.3d 547, 550 (Tex. App.—Houston [14th Dist.] 2013, no pet.). We must sustain a no evidence contention only if (1) the record reveals 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 the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
In conducting a legal sufficiency review, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that supports it. Univ. Gen. Hosp., L.P., 403 S.W.3d at 550. The evidence is legally sufficient if it would enable reasonable and fair-minded people to reach the verdict under review. City of Keller, 168 S.W.3d at 827. We credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. Id. The trier of fact is the sole judge of the witnesses’ credibility and the weight to afford their testimony. Id. at 819.
Applicable Law
One measure of damages for breach of a construction contract is remedial damages, which is the cost to complete or repair less the unpaid balance on the contract price. McGinty v. Hennen, 372 S.W.3d 625, 627 (Tex. 2012) (per curiam). The remedial measure applies whenever the breaching party has substantially complied with the terms of the contract. Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 164 (Tex. 1982). A
The personal experience and knowledge of a lay witness may establish that the witness is capable, without qualification as an expert, of expressing an opinion on a subject outside the realm of common knowledge. See Hathcock v. Hankook Tire Am. Corp., 330 S.W.3d 733, 747 (Tex. App.—Texarkana 2010, no pet.). It is only where the fact finder may not fully understand the evidence or be able to determine the fact in issue without the assistance of someone with specialized knowledge that a witness must be qualified as an expert. Id.
In general, the inquiry is whether the topic is of such a nature as not to be within the experience of the layman. See FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 90 (Tex. 2004). The determination whether expert testimony is necessary is a question of what weight should be given to the non-expert evidence in the record, a question of law. Id. at 89. Therefore, de novo is the appropriate standard of review in this context. Id.
Analysis
Knight argues that Texas law requires expert testimony to establish that repair damages are reasonable and necessary. Thomas responds that he provided competent evidence including the report generated by insurance adjuster John Beasley, photographs of the property, and Thomas‘s observation of the property and of Knight‘s work.1
Beasley, an independent claims adjuster, was sent to Thomas‘s house to document the damage and create a report. He investigated, gathered information, and entered the information into his computer. His computer program applied a cost or value based on industry standards. His report itemized needed repairs, including components that needed to be replaced, and identified replacement cost values. He listed the total actual cash value of all repairs, minus the deductible, to be $75,738.80. Thomas‘s counsel stated on the record that he called Beasley as a fact witness, not as an expert witness.
Expert testimony is offered when specialized knowledge will assist the trier of fact. See
A witness with specialized training may, however, testify based on firsthand knowledge, personal perception, and opinions without an expert witness designation. Reid Rd. Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 850-51 (Tex. 2011). When the main substance of a witness‘s testimony is based on application of his specialized knowledge, skill, experience, training, or education to his familiarity with the property, the testimony will generally be expert testimony within the scope of
Beasley testified as to his experience, knowledge, and expertise and stated that he inspected Thomas‘s house in the course of doing his job. Therefore, Beasley‘s damages opinion, in substance, was based on his expertise, that is, his knowledge, background, and experience, not merely his personal familiarity with the property.
Even in cases where experts have been properly designated, the plaintiff must present evidence of reasonableness. See McGinty, 372 S.W.3d at 627-28. Beasley‘s computer program, which was based on industry standards, was not proof of reasonableness. See id. In his testimony, Beasley never addressed the reasonableness of the values identified in his report.
Thomas testified regarding his damages. He admitted that he has limited knowledge of carpentry and, other than a summer job in high school, no experience in construction. In support of his request for damages, he testified that he knows the quality of the house and what the value of the house is to him. He said it would take around $35,000 to rebuild the house the way it should be. Thomas believes that to be a fair and reasonable amount.
Under what is known as the “property owner rule,” a property owner can testify to the market value of his own property. Porras v. Craig, 675 S.W.2d 503, 504 (Tex. 1984). But the rule is limited to the market value of the property. Pjetrovic, 411 S.W.3d at 648. Accordingly, Thomas‘s testimony, as the property owner, does not support an award for repair costs. See id.; Wortham Bros., Inc., 347 S.W.3d at 361.
However, proof of some property damage may be a matter of personal observation and common sense within the scope of lay testimony. See U.S. Fire Ins. Co. v. Lynd Co., 399 S.W.3d 206, 217 (Tex. App.—San Antonio 2012, pet. denied) (op. on reh‘g). In his brief, Thomas itemized his
Thomas did not present expert testimony of repair costs and the lay testimony he presented does not support an award for repair costs. Furthermore, Thomas presented no evidence that the damages sought were reasonable. See McGinty, 372 S.W.3d at 627. Because Thomas offered no competent evidence of repair costs, we must conclude that the evidence is legally insufficient to support the $35,000 damages award.2 See City of Keller, 168 S.W.3d at 810. We sustain Knight‘s first, second, and third issues.3
QUANTUM MERUIT
In its seventh issue, Knight asserts that the trial court erred when it failed to issue a ruling regarding Knight‘s quantum meruit cause of action. Knight contends that it presented uncontroverted expert testimony that the work it performed had a value of $78,004.30 and Thomas retained the benefits of that work without paying the full amount owed. Citing
Applicable Law
After the trial court files original findings of fact and conclusions of law, any party may file a request for specified additional or amended findings of fact or conclusions of law.
The trial court is not required to make additional findings that are unsupported by the record or that relate merely to evidentiary matters other than controlling issues. Grossnickle v. Grossnickle, 935 S.W.2d 830, 838 (Tex. App.—Texarkana 1996, writ denied). Additional findings and conclusions are not required if they conflict with the original findings and conclusions made and filed by the trial court. Vickery v. Comm‘n for Lawyer Discipline, 5 S.W.3d 241, 254 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). The trial court has no duty to make additional or amended findings that are unnecessary or contrary to its judgment. Id. If the requested findings will not result in a different judgment, the findings need not be made. Pakdimounivong, 219 S.W.3d at 412.
To prove an action for quantum meruit, the plaintiff must establish it provided valuable services or materials for the defendant, the defendant accepted and retained the services or materials, and the defendant knew the plaintiff expected compensation. Vortt Expl. Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944-45 (Tex. 1990); Truly v. Austin, 744 S.W.2d 934, 937 (Tex. 1988). An action for quantum meruit generally cannot be brought when an express contract covers the materials or services provided. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 740 (Tex. 2005) (orig. proceeding). Pursuant to an exception to this rule, the plaintiff can recover in quantum meruit despite an express contract if the plaintiff has partially performed its duties under the contract. Truly, 744 S.W.2d at 936-37. If the plaintiff breached the contract after partially performing it, the plaintiff can recover in quantum meruit for the materials and services provided, offset by the damages to the defendant from the plaintiff‘s breach. Colbert v. Dallas Joint Stock Land Bank, 129 Tex. 235, 102 S.W.2d 1031, 1034 (1937). The plaintiff must prove that the defendant is unjustly enriched as a result of this partial performance, and that permitting the defendant to retain the benefits of the partial performance would unjustly penalize the plaintiff. Garcia v. Kastner Farms, Inc., 789 S.W.2d 656, 661 (Tex. App.—Corpus Christi 1990, no writ).
Analysis
The trial court made the following findings pertinent to this discussion: (1) pursuant to the contract, Thomas was to pay Knight $78,004.30; (2) Knight did not complete the work and its work was not done in a good and workmanlike manner; (3) Thomas paid Knight $54,853.02 for the work it did; (4) Knight breached the contract causing damages to Thomas; (5) Knight engaged in fraud through use of a “Service Proposal;” (6) Knight engaged in a false, misleading, or deceptive act or practice in violation of the DTPA; (7) $35,000 would compensate Thomas for his actual damages; and (8) the cost of the work Knight did not perform is $20,261.55.
The argument Knight relies on to obtain quantum meruit damages requires admission that he partially performed the contract and breached the contract. See Colbert, 102 S.W.2d at 1034. Knight‘s request for a finding that Thomas breached the contract conflicts with the original findings and conclusions and does not relate to an element of Knight‘s quantum meruit theory. See Vickery, 5 S.W.3d at 254; Colbert, 102 S.W.2d at 1034. The record supports a finding that Thomas remained in possession of his house and therefore retained whatever benefits Knight provided. However, to be entitled to a quantum meruit award, Knight had to prove that Thomas was unjustly enriched, that is, that the value of the work it did exceeded $54,853.02, the amount Thomas paid.
Knight requested a finding that the work it performed was valued at $78,004.30 and therefore it is owed $23,151.28. While DeTiberiis testified that the work Knight performed had a value of $78,004.30, the amount Thomas agreed to pay under the contract, Thomas and Beasley testified that Knight‘s work was subpar, some needed to be torn out and replaced, and Knight did not complete the job. Thus, contrary to Knight‘s assertion, DeTiberiis‘s statement was not uncontroverted. The court determined that the contract required Knight to perform $78,004.30 worth of work. The court also determined that Knight did not complete the work required by the contract or perform the work in a good and workmanlike manner. The original contract price cannot constitute the value of the work Knight performed when the evidence shows Knight did not complete all of the work required under the contract and its work was subpar. The record does not support Knight‘s requested finding on the value of the work performed. See Grossnickle, 935 S.W.2d at 838. The trial court, the judge of the credibility of the witnesses, was not required to file an additional finding that the value of the work performed was $78,004.30. See McClendon v. McClendon, 289 S.W.2d 640, 645 (Tex. Civ. App.—Fort Worth 1956, no writ) (holding that failure to file finding was harmless when the record reflects what testimony was believed by the trial court and made the basis of the judgment). Knight did not provide evidence showing that the value of the work it did was greater than the amount Thomas paid and thus Knight failed to show that Thomas was unjustly enriched. See Garcia, 789 S.W.2d at 661. We conclude that Knight was not harmed by the trial court‘s failure to file Knight‘s requested additional or amended findings and conclusions as doing so would not result in a different judgment. See Pakdimounivong, 219 S.W.3d at 412. We overrule Knight‘s seventh issue.
DISPOSITION
Because Thomas failed to present legally sufficient evidence to support his actual