OPINION
In this contract dispute between a general contractor, CTC Contractors,' LLO, and a subcontractor, Vast Construction, LLC, appellant Vast challenges the judgment in favor of appellee CTC. The judgment is based on a jury finding that Vast failed to comply with the- subcontract. First, Vast asserts that it is entitled to either (1) rendition of judgment in its favor because it established as a matter of law that it did not breach the contract, or (2) reversal of the judgment and'remand for a new trial based on various evidentiary or charge-error issues. Second, Vast'contends that it established, as a matter of law, that CTC violated the prompt payment to'contractors and subcontractors provisions of the Texas Property Code. Third, Vast urges that the trial court reversibly erred by refusing to include a jury question on its Texas Construction Trust Fund Act claim. Fourth, Vast asserts that the trial court erred in awarding attorneys’ fees to CTC under Texas Civil Practice and Remedies Code Chapter 38; Finally, Vast asserts that it was entitled to attorneys’ fees under the prompt-payment provisions of the Texas Property Code.
We agree with Vast that the trial court erred by awarding attorneys’ fees against it under Civil Practice and Remedies Code section 38.001 because that statute authorizes an award of reasonable attorneys’ fees against only individuals and corporations, and Vast, a limited liability company, is neither an individual nor a corporation. We therefore modify the trial court’s judgment to remove all portions awarding attorneys’ fees to CTC. Rejecting Vast’s other issues that we find dispositive, we affirm the judgment as modified.
Background
In December 2013, CTC became' the general contractor for the construction of a Johnstone Supply store on property owned by Carroll Ventures, LLC in Houston, Texas. The construction site was located on the corner of North Shepherd Drive and Cornish Street. An integral part of the construction projеct was the expansion of Cornish Street to ease, traffic flow and improve surrounding infrastructure (the “Cornish Street Project”). The Cornish Street Project included flood control measures, water and sewage work, installation of a fire sprinkler line, sidewalk construction, and widening of Cornish Street to allow truck access to the store. .
CTC requested proposals to complete the Cornish Street Project. Vast submitted a written proposal to complete the Cornish Street Project for a total of $355,000. Vast’s proposal ■ covered furnishing “the equipment, labort,] and materials needed to complete the scope of work listed.” The proposal also excluded certain identified tasks, the most relevant of which for our purposes is “permits.”
CTC and Vast signed a subcontractor agreement in February 2014 (the “Subcontract”). The scope of work attached to the Subcontract described the work to be completed on site as “concrete and asphalt paving, water, sewer[,] and storm sewer.” Tliis scope of work was to be completed by April 10, 2014. The Subcontract further included the following relevant provisions:
All work order additions and or omissions must be approved by Contractor. Subcontractor will accept all financialresponsibility for any work performed by Subcontractor that is not covered in this agreement or that is not approved by Contractor.
* * *
Subcontractor is required to meet all reasonable completion schedules set forth by the Contractor^] therefore Subcontractor agrees to supply as many workers as need, or work as many hours as needed, to meet these completion schedules as well.
⅜ ⅜ ⅜
CANCELLATION/TERMINATION. In the event that the “Scope of Work” is canceled[,] Subcontractor will be compensated for any work completed based on the breakdown of its bid. If the work completed is not covered in Subcontractor’s bid then Contractor reserves the right to compensate Subcontractor based on a percentage scale of work completed up to the cancellation date. Contractor reserves the right to terminate this agreement at any date, with no further compensation, if Contractor determines that Subcontractor is not performing its obligations to fully meet this agreement, also Subcontractor agrees to reimburse Contractor for all cost[s] incurred by Contractor due to Subcontractor negligence.
* * *
REMEDIES. In addition to any and all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of this Contract (including without limitation the failure to make a monetary payment when due), the other party may terminate the Contract by providing written notice to the defaulting party. This notice shall describe with sufficiеnt detail the nature of the- default. The party receiving such notice shall have 10 working days from the effective date of such notice to cure the default(s). Unless waived by the party providing notice, the failure to cure the default(s) within such , time period shall result in the automatic termination of this Contract.
ENTIRE AGREEMENT. This Contract contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Contract. This Contract supersedes any pri- or written or oral agreement between the parties.
The Subcontract was silent concerning which party was obligated to secure permits necessary to complete the scope of work. However, Vast applied for and obtained an excavation permit, a sidewalk impairment permit, and a storm water line system permit from .the City of Houston. One other pеrmit—a lane closure permit— also was critical to completing the Cornish Street Project. Vast began,processing the lane closure permit with the City around February 18, 2014. Securing the permit required a traffic control plan, which the City of Houston had approved in November of 2013.
Meanwhile, Vast began “pulling people off’ the Cornish Street Project in late February. On March 13, 2014, while discussions still were underway among the City, CTC, and CSF regarding the lane closure permit, Vast contacted the City of Houston and cancelled its maintenance bond and аll the permits it had obtained previously. All work on the Cornish Street Project came to a halt that day.
Vast’s work stoppage is undisputed in the record. CTC’s president, Josh Cres-cenzi, testified that Vast abandoned work on the Cornish Street Project because Vast desired to pursue more profitable endeavors. The record does not indicate that Vast contended it abandoned the project because CTC was in breach. And, there is no evidence that Vast invoked the Subcontract’s notice-of-default and termination procedures before Vast stopped work on the project on March 13.
On March 23, CTC notified Vast that Vast was in default on the Subcontract for Vast’s alleged: (1) failure to prosecute work on the Cornish Street Project in accordance with the Subcontract documents and schedule; (2) failure to strictly comply with all provisions of the Subcontract; and (3) delay, interference, or stoppage of CTC’s operations or of any other subcontractor work.
CTC requested bids from replacement subcontractors for the Cornish Street Project shortly after Vast, revoked the permits. After receiving multiple proposals, CTC selected A&M Contractors to finish the Cornish Street Project and entered into a contract with A&M on April 1, for a total cost of $446,900. CTC’s contract with A&M expressly provided that A&M was responsible for obtaining the necessary permits. The contract also required A&M to obtain a performance bond, which Vast had not been required to obtain.
On April 14, Vast notified CTC that CTC was in default for CTC’s failure to secure required permits necessary for Vast to commence work; failure to timely provide plans; failure to secure approval of a traffic detour plan; failure to pay Vast’s February invoice; and refusal to hold necessary performance meetings. In the notice, Vast alleged that it had “attempted to assist CTC” by: (1) securing permits it was nоt obligated to secure because of CTC’s inability to obtain them; (2) sending workers to mobilize and prepare the site at CTC’s request; (3) working at the site for two weeks at CTC’s request; (4) providing CTC sufficient time to acquire approval of the traffic control plan, which CTC was unable to accomplish; (5) negotiating with CenterPoint Energy regarding relocation of electrical poles, which Vast was not obligated to do; and (6) offering to meet with CTC to negotiate timeline changes that “had become necessary due to delays caused by CTC.”
On April 17, 2014, CTC sued Vast for breach of contract, seeking the difference between Vast’s Subcontract amount and the amount CTC paid to have the Cornish Street Project completed. CTC paid A&M approximately $477,000, and paid other subcontractors over $60,000, to complete the Cornish Street Project. CTC alleged that Vast failed to timely prosecute its work, failed to strictly comply with the Subcontract, “delayed, interfered and/or stopped CTC’s operations,” and “abandoned the project.” CTC asserted that Vast had a contractual duty to obtain, but failed to obtain, all necessary building per
During the jury trial, CTC’s Crescenzi, testified that Vast was required to secure permits. Crescenzi also testified that Vast never objected to obtaining permits. Based on Crescenzi’s testimony and the fact that Vast’s original proposal expressly excluded permits from the scope of its bid, Vast offered its proposal into evidence on several occasions. CTC opposed admission based on the parol evidence rule and the merger clause (the “entire agreement” clause excerpted above) contained in the Subcontract. In response, Vast asserted two grounds for admission: (1) to impeach Crescenzi, and (2) because CTC had opened the door to the proposal’s admission. The trial court denied Vast’s requests to challenge Crescenzi with the proposal or otherwise introduce the proposal into evidence. Both parties presented expert evidence of industry custom and standards as to whether a subcontractor, like Vast, or a general contractor, like CTC, was responsible for obtaining permits. Despite the focus on permitting, however, it was undisputed that Vast abandoned the Cornish Street Project. Crescenzi detailed Vast’s decision to pull off the job and cancel permits and bonds; Vast’s president, Creig Cox, acknowledged that Vast had left the project entirely by mid-March.
The jury charge included separate broad-form questions on whether Vast or CTC failed to comply with the Subcontract, along with related questions on excuse and damages, respectively, as to each party. During the charge conference, Vast requested an instruction on materiality of its alleged breaches, as well as a question on its Trust Fund Act claim. The trial court refused both requests. The jury found that Vast failed to comply with the Subcontract and awarded CTC $91,900 in actual damages. The jury also found that CTC did not breach the Subcontract, a finding Vast does not challenge on appeal. The trial court signed a judgment in favor of CTC in which it awarded CTC the damages as found by the jury and awarded CTC $190,000 in attorneys’ fees for trial, as well as conditional appellate attorneys’ fees. The trial court denied Vast’s motion for judgment notwithstanding the verdict. This appeal timely followed.
Issues Presented
Vast’s first issue includes several arguments. Vast contends that: (a) Vast established as a matter of law that it was not required to obtain permits, and thus, Vast did not breach the contract; (b) the trial court erred in excluding Vast’s bid proposal in light of Crescenzi’s testimony that Vast never informed CTC that Vast was not required to obtain permits; (c) the trial court erred in refusing to instruct the jury on materiality; and (d) the damages awarded are not supported by legally or factually sufficient evidence. In issue two, Vast asserts that it established as a matter of law that it was entitled to recover on its claim under the prompt payment to contractors and subcontractors provisions of the Texas Property Code (the “prompt-payment pro
Analysis
A. Breach of Contract Claim
Vast first challenges the jury’s finding in Question 1 that it failed to comply with the Subcontract. Focusing on the Subcontract’s silence as to the burden to obtain permits, Vast contends that it established, as a matter of law, that 'it did not breach the Subcontract because the Subcontract did not require Vast to obtain permits.
1. Standard of Review
Vast does not articulate a standard of review in its brief, but its challenge to Question 1 touches two distinct elements of a breach of contract claim: a valid contractual duty and breach of that duty.
Vast’s core argument is that it cannot be held liable for failing to comply with the Subcontract because it had no contractual duty to obtain permits as. a matter of law, thus negating the required element of duty. Ultimately, whether we evaluate Vast’s argument under a de novo standard or an evidentiary sufficiency standard is not outcome determinative. As explained below, we need not evaluate de novo whether the Subcontract imposed a duty on Vast to secure permits for the Cornish Street Project, Assuming Vast had no duty to secure the permits, as Vast contends,
When reviewing the legal sufficiency of the evidence, we view the' evidence in the light most favorable to-the judgment and indulge every reasonable inference that would support it. City of Keller v. Wilson,
We sustain a legal sufficiency or “no evidence” 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. the vital fact. Marathon Corp. v. Pitzner,
As there exists more than a scintilla of evidence that Vast breached a duty under the Subcontract by abandoning the project, we conclude the jury’s affirmative finding as to Question 1 is supported by legally sufficient evidence.
2. Application
Vast’s argument in support of its first issue presupposes that the only way in which the jury could have found Vast breached the Subcontract was by failing to secure the permits. As noted above, Question 1 was not so limited; instead, the jury was asked, in а broad-form submission, whether Vast failed to comply with the Subcontract. No. limiting instructions accompanied the question, and the jury answered “yes.” Given' the wording of the question, the jury could have found a failure to comply with the Subcontract 'based on the failure to perform any obligation contained in the agreement and supported by legally sufficient evidence, including, as CTC argued, Vast’s abandonment of the project. See Trinity Materials,
The parties hotly contested who bore responsibility to obtain permits; indeed, the issue was a principal focus of the trial evidence. But permitting was not the only issue insofar as potentiаl contractual breaches were concerned. The jury heard evidence that Vast abandoned the job before a dispute arose about the duty to obtain permits. CTC’s Crescenzi testified that Creig Cox of Vast told Crescenzi that Vast wanted to pull off the Cornish Street Project because Vast desired to pursue “more profitable” projects. Crescenzi testified that from mid-February to mid-March, Vast and CTC developed and agreed on a plan for Vast to exit the project. In the interim, Vast was to transfer permits to CTC so that CTC could hire a new contractor to take over Vast’s scope of work. But, according to Crescenzi, Vast “turned its back” on this plan, and instead pulled its performance bond and revoked the permits it had obtained. This prompted CTC’s March 23, 2014 notice of default letter, in which CTC asserted Vast defaulted by its “delay, interference^] and/or stoppage” of the project. And, when specifically asked hоw Vast breached its contractual obligations, Crescenzi’s answer was not limited solely to a failure to obtain permits. He stated that Vast “walked off the project,” canceled permits, and failed to respond to the default notice.
Notably, Vast’s representatives did not dispute that Vast abandoned the Cornish Street Project. Cox acknowledged that Vast stopped work on the project in mid-to late-February. And Cox testified that, in mid-March, Vast “had other projects come up that we had already honored and had agreements to go do. And we were just asking, you know, let’s just part ways.” Indeed, according to Cox, Vast had a “justifiable reason to pull out of the job”: it was unable to “get the traffic control plan.”
In sum, the testimony regarding Vast’s abandonment of the project in mid-March 2014 constitutes more than a scintilla of evidence that Vast failed to comply with the Subcontract. See, e.g., Walker & Assocs. Surveying, Inc. v. Roberts,
Because there is sufficient evidence to support the jury’s finding that Vast failed to comply with the Subcontract, we overrule that portion of Vast’s first issue in which it challenges the jury’s finding that it failed to comply with the Subcontract.
B. Exclusion of Vast’s Bid
' Vast also asserts that a new trial is warranted because the trial court abused its discretion in excluding Vast’s pre-agreement written proposal, which supported Vast’s position that Vast was not responsible for obtaining the permits.
1. Standard of Review
We review a trial court’s evi-dentiary ruling for abuse of discretion. See K-Mart Corp. v. Honeycutt,
2. Application
As discussed above, the jury’s finding that Vast failed to comply with the Subcontract is supported by legally sufficient evidence that Vast- abandoned the Cornish Street Project. This undisputed
Thus, we overrule this portion of Vast’s ■first issue.
C. Vast’s Requested Materiality Instruction
Vast additionally asserts in its first issue that the trial court erred in refusing Vast’s proposed materiality instructions to accompany Question 1. Vast disputed whether its alleged breaches of the Subcontract were material; thus, Vast contends it was entitled to certain instructions listing factors for the jury to weigh in determining whether Vast failed to comply with a material term of the Subcontract.
1. Standard of Review
“Determining necessary and proper jury instructions is a matter within the trial court’s discretion, and appellate review is for abuse of that discretion.” Columbia Rio Grande Healthcare, L.P. v. Hawley,
2. Application
Vast sought a materiality instruction as part of Question 1, which asked the jury whether Vast failed to comply with the - agreement. On appeal, Vast argues that the instruction was warranted because the only breaches CTC claimed were “trivial” and “nonmaterial.” According to Vast, “CTC claimed that Vast failed to comply with the Contract by requesting -payment before submitting a schedule of values, and by not obtaining permits in a timely manner.” But these were not the only factual bases for CTC’s breach claim. As discussed, CTC also claimed that Vast failed to comply with the Subcontract by abandoning the Cornish Street Project. Because a reasonable jury could have found that Vast’s abandonment of the project constituted a breach, the trial court’s refusal to provide the requested materiality instructions for' the reasons advanced by
Accordingly, we overrule this portion of Vast’s first issue.
D. Sufficiency of the Evidence to Support the Jury’s Damage Award
Also as part of its first issue, Vast contends that the evidence is insufficient to support the jury’s damage award. CTC sought damages of $162,416.51, and the jury awardéd $91,900. Vast asserts that the jury’s damage award "represents “the price difference betweeh CTC’s contract with Vast and CTC’s contract with A&M.” Vast claims that CTC’s contract with A&M cannot form the basis of the jury’s damage award because that contract covered more work than the contract between Vast" and CTC. For the reasons explained below, however, we conclude that sufficient evidence supports the jury’s damages finding.
1. Standard of Review
According to Vast, the trial court “committed reversible error by finding sufficient evidence supports the amount, of damages awarded.” We construe Vast’s challenge to damages as one grounded on factual insufficiency, as opposed to legal insufficiency; because Vast does not raise any of the grounds that traditionally underlie a legal sufficiency challenge. See Marathon Corp.,
When reviewing the factual sufficiency of the evidence, we examine the entire record, considering all the evidence both in favor of and contrary to the challenged finding. Cain v. Bain,
We apply the above standard mindful of Texas’s long-settled deference to the fact-finder’s discretion to fix appropriate and reasonable damage amounts. Under Texas law, “whether to award damages and how much is uniquely within the fact finder’s discretion.” Golden Eagle Archery, Inc. v. Jackson,
2. Application
The trial court instructed the jury to consider only the following elements of damages and none other:
Loss of the Benefit of the Bargain—The difference between the reasonable costs CTC incurred in completing Vast’s Contract and the agreed amount of Vast’s Contract. The difference in value, if any, shall be determined at the time and place the supplemental work was performed.
According to this instruction, the jury was permitted to award damages in an amount it found represented the difference between CTC’s reasonable costs incurred in completing the scope of work contemplated by the Subcontract with Vast and the amount CTC was obligated to pay Vast under the Subcontract had Vast completed the scope of work ($355,000).
CTC hired multiple contractors to complete the Cornish Street Project scope of work under the Subcontract, including A&M Contractors, Winco Construction, Legacy Design Concrete, and CEMEX Concrete. CTC, through Crescenzi, presented evidence that A&M submitted payment applications for a total of $477,276.68 to complete the work on the Cornish Street Project.
As noted above, the jury awarded CTC $91,900 in damages. Vast attributes this figure to the difference between A&M’s
We reject Vast’s evidentiary challenge to the damage award for three reasons. First, Vast’s fundamental premise is based on speculation. Though the damage amount aligns with the price difference between the two contracts, it is within the range of evidence presented at trial, and we do not speculate on how the jury actually arrived at this figure. See Vela,
Second, assuming we agreed with Vast that CTC’s contract with A&M includеd tasks that were not part of the work scope contemplated by Vast’s Subcontract with CTC, including the obligation to obtain permits, Vast has identified on appeal only $24,210.00 in expenses that it claims were outside the scope of its Subcontract. Of that amount, the cost of “all permits” was $7,000. The amount the jury awarded to CTC was $70,518.51 less than the difference between the amount CTC incurred to complete the Cornish Street Project and Vast’s Subcontract price. Even if we eliminate the contested amounts specifically identified by Vast, the jury’s damages award is still significantly less than those costs a reasonable jury could have believed CTC incurred in completing the work. Simply put, the jury’s damages award is within the range of evidence presented at trial (excluding the amounts that CTC paid to A&M that Vast alleges were outside the scope of Vast’s contract), and the evidence need not show precisely how the jury arrived at the specific amount. See MEMC Pasadena,
Third, Vast has not shown how, considering all the evidence both in favor of and contrary to the finding, the jury’s award is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Pool,
In short, Vast has not established that it is entitled to a new trial based on its challenge to the damages award, and we overrule this portion of its first issue.
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For the foregoing reasons, Vast’s first issue is overruled in its entirety.
In its second issue, Vast asserts that it was erititled to recover for its claim under the prompt-payment provisions
The prompt-payment statute provides:
A contractor who receives a payment ... from an owner in connection with, a contract to improve real property shall pay each of its subcontractors the portion of the owner’s payment, including interest, if any, that is attributable to work properly performed or materials suitably stored or specially fabricated as provided under the contract by that subcontractor, to the extent of that subcontractor’s interest in the owner’s payment. The payment required by this subsection must be made not later than the seventh day after the date the contractor receives the owner’s payment.
Tex. Prop. Code § 28.002(b), In the event of a good faith dispute about the amount owed for a paymеnt requested by a contractor, section 28.003(b) allows the party disputing the payment to withhold from the payment no more than the amount.in dispute, but it does not exempt the withheld amount from accruing interest if it is ultimately determined that the amount requested is owed. See id. § 28.003(b); Patel v. Creation Constr., Inc., No. 05-11-00759-CV,
In this case, the jury expressly found that CTC did not breach the Subcontract. Vast acknowledges that the jury - did not reach' the prompt-payment question provided to the jury because the jury determined that CTC did not breach the Subcontract. Thus, the jury did not determine that CTC owed Vast any amount whatsoever. Without such a determination, there is no support for Vast’s claim that CTC violated the prompt-payment provisions. Cf. Patel,
' We overrule Vast’s second and fifth issues.
F. Texas Construction Fund Act Claim
In issue three, Vast asserts that the trial court reversibly erred by refusing to submit a jury question on its claimed violation of the Texas Construction Trust Fund Act (the “TCTFA”). See Tex. Prop. Code §§ 162.001-.033; Dealers Elec. Supply Co. v. Scroggins Constr. Co.,
1. Standard of Review and Governing Law
Under the TCTFA, payments made to a contractor or subcontractor under a construction contract for the improvement of real property are considered trust funds. Tex. Prop. Code § 162.001(a); Dealers Elec. Supply Co.,
2. Application
Vast adduced testimony from CTC’s Crescenzi that CTC paid attorneys’ fees for legal expenses related to the Cornish Street Project. But there simply was no evidence that CTC used trust funds to pay these expenses. See id.
Vast’s third issue is overruled.
G.. Attorneys’Fees
In its fourth issue, Vast asserts that the trial court erred in awarding CTC attorneys’ fees under Texas Civil Practice and Remedies Code section 38.001. CTC responds that it sought attorneys’ fees under the indemnification provision of the Subcontract, in addition to Chapter 38. Texas follows the American Rule, which provides that litigants may recover attorneys’ fees only if specifically provided for by statute or contract. Epps v. Fowler, 351
The record shows that CTC did not plead for attorneys’ fees under the Subcontract; instead, it sought attorneys’ fees only under “Chapter 38 of the Texas Civil Practice & Remedies Code.” When, as here, a party pleads a specific ground for recovery of attorneys’ fees, the party is limited to that ground and cannot recover attorneys’ fees on another, unpleaded ground. See Tex. R. Civ. P. 301 (stating that judgment must conform to pleadings); see also Intercont’l Grp. P’ship v. KB Home Lone Star L.P.,
The only potential basis supporting CTC’s attorneys’ fee award is Chapter 38 of the Texas Civil Practice and Remedies Code. The availability of attorneys’ fees under a particular statute is a question of law for the court. Alta Mesa Holdings, L.P. v. Ives,
Section 38.001 provides that “[a] person may recover reasonable attorney’s fees from an individual or corporation ... if that claim is for ... an oral or written contract.” Tex. Civ. Prac. & Rem. Code § 38.001(8). This court has determined that section 38.001 “does not authorize the recovery of attorney’s fees in.a breach of contract action against an LLC [limited liability company].” See Alta Mesa Holdings, L.P.,
Accordingly, we sustain Vast’s fourth issue.
Conclusion
Because the trial court erred in awarding attorneys’ fees on CTC’s breach of contract claim against Vast, we modify the trial court’s judgment to delete all portions awarding attorneys’ fees, including appellate attorneys’ fees, to CTC.
Having overruled the remainder of Vast’s issues, we affirm the judgment as modified.
Notes
. An engineering firm, CSF Engineers, drafted the traffic control plan.
. It is unclear from-our record precisely why the City denied the lane closure permit when the City previously approved the traffic control plan. However, 'it appears that the traffic control plan ultimately was deemed to be "unrealistic” for the traffic conditions as they .existed when the lane closure permit, application was submitted.
. Tex. Prop. Code §§ 28.001-28.010.
. Id. §§ 162.001-162.033.
. Vast alternatively contends that its pre-agréement proposal, which excluded permits from the scope of work on which it bid, was incorporated into the Subcontract. Thus, Vast argues, the Subcontract's express terms imposed no obligation on Vast to secure permits. We need not address this alternative argument due to our disposition of the case. .
. To recover for breach of contract, CTC was required to prove the following elements: (1) a valid contract; (2) CTC tendered performance or was excused from doing so; (3) Vast breached the terms of the contract; and (4) CTC sustained damages as a result of Vast's breach. See West v. Triple B Servs., LLP,
. El Paso Nat. Gas Co. v. Minco Oil & Gas, Inc.,
. Question 2 asked the jury whether Vast’s failure to comply with the Subcontract was "excused,” The trial court instructed the jury that Vast’s failure to comply was excused if Vast’s compliance was waived or was impossible. The jury found Vast’s breach was not excused and Vast has not challenged that finding on appeal.
. Abandonment of a contract constitutes a breach. "A breach of contract occurs when a party fails or refuses to do something he has promised to do.” B & W Supply, Inc. v. Beckman,
. The record contains cancelled checks from CTC to A&M for a total amount of $422,197.45. However, Crescenzi testified that CTC had made recent payments to A&M that were not included in these cancelled checks, that CTC currently owed A&M approximately $20,000, and that CTC had a "payment agreement for CTC to pay A&M the remaining balance over two more months.” Though CTC had not paid the remaining $20,000 to A&M as of trial, Vast does not challenge the inclusion of this amount within the scope of evidence the jury could have considered in arriving at a reasonable damage figure.
. CTC requested $162,416.51. This minor difference in the amount CTC requested appears to stem from a calculation error at trial.
. The record does not reveal any evidence establishing the reasonable value of A&M’s "assumption of the risk,” nor does Vast assign any value to that item in its brief.
. Even if we were to construe Vast’s attack on the damages award as including a legal sufficiency challenge, we would conclude that legally sufficient evidence supports it. Cres-cenzi’s testimony as to the reasonable costs CTC incurred was largely unrefuted, and he specifically distinguished between those costs related to tasks contemplated by the Subcontract with Vast, as opposed to costs related to tasks outside that scope of work.
. See Tex. Prop. Code §§ 28.001-.010.
. Further, it is an affirmative defense to a claim under the TCTFA that the trust funds were used by the trustee to pay the trustee’s actual expenses directly related to the construction or repair of the improvement. See Tex. Prop. Code § 162.031(b); Dealers Elec. Supply Co.,
. Legislation was proposed to amend section 38.001 to reflect that a person may recover reasonable attorneys' fees from ‘'organizations,” including limited liability companies, but the bill did not pass. See Tex. H.B. 744, 85th Leg., R.S. (2017).