Gary Spivey, Owner of America's Choice Roofing and AmChoice, LLC Dba America's Choice Roofing v. Joann Goodwin ( 2017 )

IN THE
TENTH COURT OF APPEALS
No. 10-16-00178-CV
GARY SPIVEY, OWNER OF
AMERICA'S CHOICE ROOFING AND
AMCHOICE, LLC DBA AMERICA'S CHOICE ROOFING,
Appellants
v.
JOANN GOODWIN,
Appellee
From the County Court
Robertson County, Texas
Trial Court No. 15-17-CV
MEMORANDUM OPINION
In four issues, appellants, Gary Spivey, owner of America’s Choice Roofing, and
AmChoice, LLC, challenge the trial court’s judgment. Specifically, appellants contend
that the trial court erred by: (1) failing to award judgment for appellants under a written
contract with appellee, Jo Ann Goodwin; (2) granting relief on a theory of breach of
implied warranty that was not pleaded or supported; (3) failing to award interest at the
rate established in the contract; and (4) denying any award of attorney’s fees. Because
we conclude that the trial court erred, we modify the judgment to reflect a $2,900 damage
award in favor of appellants and to include awards of attorney’s fees and interest
provided by the underlying contract. We affirm as modified.1
I. BACKGROUND
This dispute arises out of a written contract for the replacement of a residential
roof. On March 17, 2015, Goodwin entered into a contractual agreement with appellants
for the installation of a roof on a property owned by Goodwin in Calvert, Texas. Pursuant
to the agreement, Goodwin would pay $33,236.03 in exchange for appellants installing a
new roof, decking, drip edges, valleys, ventilation, insulation, shingles and related
materials, and labor, including the removal and installation of such roof materials. The
charges under the contract were to be paid in two installments—$16,168.01 on the
delivery of the materials and $16,168.02 on the final walk-through. Furthermore, at no
additional cost, appellants agreed to install 150 feet of gutters on the home.
Later, on May 1, 2015, Goodwin and appellant entered into a written change order
that modified the work to be completed under the contract. For an additional $900 from
Goodwin, appellants agreed “to include remaining 35 Linear Feet of gutters for flat
portion of roof above and beyond original contract, dated March 17, 2015.”
1We note that Goodwin is pro se on appeal and was pro se in the trial court. She has not filed an
appellee’s brief in this matter. Instead, she has filed a collection of documents that appear to be similar to
the evidence she relied upon in the trial court.
Spivey v. Goodwin Page 2
The record reflects that Goodwin made two payments under the contract. She
paid the first installment of $16,168.01 on April 28, 2015. However, as work commenced
on the roof, Goodwin became dissatisfied. As noted at trial, Spivey met with Goodwin
because she was upset about the job. When conducting a walk-through of the work,
Goodwin identified a number of changes she wanted, including rebuilding two finials
that she alleged had been damaged during the work. Appellants repaired the finials.
Goodwin also requested patching of a flat section of the roof, although that section of the
roof was not within the scope of the original contract. Spivey testified that he tried to
make Goodwin happy by putting “a coating over the flat roof.” Further, Goodwin
requested that appellants paint the chimney flashing because “something about the paint
didn’t look right.” Appellants repainted all of the chimneys.
At the conclusion of her meeting with Spivey, Goodwin provided a second check
in the amount of $14,168.02. In the memo portion of the check, Goodwin handwrote
“balance due $2,900.” Goodwin withheld the remaining balance of $2,900 because she
did not believe that the work was completed. In any event, in June 2015, appellant sent
a final invoice to Goodwin requesting the remaining $2,900. Goodwin argued that the
work was not complete and refused to pay, thus prompting a second invoice from
appellants for the $2,900. Goodwin once again complained about the work on the flat
section of the roof, refused to pay the remaining balance, and threatened suit.
Spivey v. Goodwin Page 3
On November 10, 2015, Goodwin filed suit in justice court in Robertson County
against “Gary Spivey, Owner of America’s Choice Roofing,” asserting damages in the
amount of $2,900 because “3 flat roofs are . . . leaking” and some of her gutters are rusted.
Spivey filed an answer denying Goodwin’s allegations. Thereafter, AmChoice
intervened asserting counterclaims of breach of contract and quantum meruit against
Goodwin. AmChoice also pled for the recovery of attorney’s fees, as well as pre- and
post-judgment interest.
After a bench trial, the justice court rendered two separate judgments—a take-
nothing judgment on Goodwin’s claims against Spivey and a judgment against Goodwin
on the breach-of-contract counterclaim. Appellants were awarded $3,841 in damages,
which was comprised of $2,000 in damages under the contract, $1,800 in attorney’s fees,
and $41 in court costs. Goodwin appealed the justice court’s judgment to the County
Court. Appellants refiled their pleadings in the County Court.
On January 28, 2016, this matter was tried in the Robertson County Court.
Goodwin represented herself, and the record reflects that she did not call any witnesses,
though she did submit numerous documents to support her contentions. Goodwin
contended that the work on the flat-roof sections was part of the original contract and
that she had to pay Lopez Construction $1,300 to correct the work of appellants on the
flat-roof sections. Spivey, as well as AmChoice employee Chuck Allen, testified at trial.
At the conclusion of the trial, the trial court awarded appellants $1,600 in damages, which
Spivey v. Goodwin Page 4
constituted a $1,300 reduction of the $2,900 Goodwin allegedly owed under the contract.
This reduction corresponded with the amount Goodwin paid to Lopez Construction. The
trial court also declined to award costs, interest, or attorney’s fees to either party. At the
request of appellants, the trial court entered findings of fact and conclusions of law.
Subsequently, appellants filed their joint notice of appeal.
II. ANALYSIS
In their first and second issues, appellants contend that the trial court erred by
failing to award judgment for appellants under the written contract and by granting relief
to Goodwin on a theory of breach of implied warranty that was not pleaded, nor
supported by evidence.
As noted earlier, appellants asserted counterclaims of breach of contract and
quantum meruit. A breach of contract occurs when a party fails to perform an act that it
has explicitly or impliedly promised to perform. Esty v. Beal Bank S.S.B., 298 S.W.3d 280,
299 (Tex. App.—Dallas 2009, no pet.). The elements of a breach-of-contract claim are: (1)
the existence of a valid contract between the plaintiff and defendant; (2) the plaintiff’s
performance or tender of performance; (3) the defendant’s breach of the contract; and (4)
the plaintiff’s damages as a result of that breach. Id. In arguing that Goodwin breached
the original contract, appellants challenge several findings of fact made by the trial court.
Findings of fact entered in a non-jury case have the same force and dignity as a
jury’s answers to jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.
Spivey v. Goodwin Page 5
1991). Findings of fact are reviewable for legal and factual sufficiency of the evidence to
support them by the same standards that are applied in reviewing evidence supporting
a jury’s answer. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). The trial court must
make findings of fact only on controlling issues, not on matters of evidence. State Farm
Life Ins. Co. v. Martinez, 174 S.W.3d 772, 788 (Tex. App.—Waco 2005), rev’d on other
grounds, 216 S.W.3d 799 (Tex. 2007). Findings that are evidentiary issues or recitations,
rather than controlling issues, are immaterial and thus harmless; they are not binding on
appeal. Cooke County Tax Appraisal Dist. v. Teel, 129 S.W.3d 724, 731-32 (Tex. App.—Fort
Worth 2004, no pet.).
On appeal, appellants challenge Findings of Fact 2, 3, and 4, which provided as
follows:
2. Defendant Gary Spivey asked for final payment before the services
were completed.
3. Defendant Gary Spivey took excessive time to complete the job.
4. Defendant Gary Spivey agreed to fix the flat roof for no charge.
Specifically, with respect to Finding of Fact 2, the record shows that, although Goodwin
was dissatisfied with appellants’ work, all of the work performed under the contract was
completed by the time appellant sought final payment under the contract on June 10,
2015. Nowhere in the contract does it state that appellants were required to repair the
flat roofs on Goodwin’s residence. The subsequent work done by appellants on the flat
roof was an attempt to satisfy Goodwin. Indeed, Goodwin testified that Spivey told her
Spivey v. Goodwin Page 6
that he would come and repair leaks on the flat roofs, though she did not point to
anything in the contract that required appellants to do so. Later, Spivey noted that the
patching of the flat roofs was not included in the contract and that “we tried to work
things out with her so we did do a coating over the flat roof.” Based on this evidence, we
cannot say that Finding of Fact 2 is supported by legally and factually sufficient evidence.
See Catalina, 881 S.W.2d at 297.
With respect to Finding of Fact 4, we note that the agreement to put a coating on
the flat roof could not have extended or altered the contract, because the contract
contained an entireties clause, which precluded oral modification of the contract.
Accordingly, Goodwin cannot show a breach of contract based on a situation that was
not made a part of the contract.
And finally, regarding Finding of Fact 3, the testimony revealed that the contracted
roofing job was completed in four days. This testimony does not support the finding that
appellants “took excessive time to complete the job.” In fact, Goodwin relies on
appellants’ repair, or lack thereof, of the flat roofs to show that the job took an excessive
amount of time. However, as we noted earlier, the repair of the flat roofs was not part of
the contract and, thus, cannot be used to show a breach of contract. We therefore cannot
say that Finding of Fact 3 is supported by legally and factually sufficient evidence. See
Catalina, 881 S.W.2d at 297.
Spivey v. Goodwin Page 7
Neither the findings of fact nor the record support a conclusion that appellants
breached the contract with Goodwin. What the record does show is that appellants
provided labor and materials for the job and that Goodwin failed to pay the remaining
$2,900 balance owed under the contract. As such, we conclude that the evidence
demonstrates that Goodwin breached the contract by not paying the remaining $2,900
owed. See Esty, 298 S.W.3d at 299.
However, despite the foregoing, the trial court determined, in Finding of Fact 5,
that Spivey impliedly warranted that the roof would not leak. Based on this finding, the
trial court reduced the $2,900 owed by $1,300—the amount paid by Goodwin to Lopez
Construction. The Texas Supreme Court has recognized an implied warranty that
services will be performed in a good and workmanlike manner. See Melody Home Mfg.
Co. v. Barnes, 741 S.W.2d 349, 354 (Tex. 1987) (defining good and workmanlike as “that
quality of work performed by one who has the knowledge, training, or experience
necessary for the successful practice of a trade or occupation and performed in a manner
generally considered proficient by those capable of judging such work”). However, in
the trial court, Goodwin never argued that appellants breached an implied warranty.
Because Goodwin did not plead a cause of action for breach of an implied warranty, and
because the mere presentation of evidence that could support an unpled theory is
insufficient, we conclude that there is no pleading to support the trial court’s Finding of
Fact 5, which is the basis for the offset granted to Goodwin. See TEX. R. CIV. P. 301
Spivey v. Goodwin Page 8
(providing that the judgment must comport with the pleadings); Ingram v. Deere, 288
S.W.3d 886, 893 (Tex. 2009) (“We reiterated the long-standing rule that an issue is ‘not
tried merely by the hearing of testimony thereon.”); Degroot v. Degroot, 369 S.W.3d 918,
925 (Tex. App.—Dallas 2012, no pet.) (“A party may not be granted relief in the absence
of pleadings to support that relief.”); see also Arthur v. Wilson, No. C14-90-00210-CV, 1991
Tex. App. LEXIS 642, at *18 (Tex. App.—Houston [14th Dist.] 1991, writ denied)
(“Generally, a trial court may not grant relief that is not supported by pleadings. Absent
trial by consent, a favorable judgment based on an unpled cause of action cannot be
sustained.” (citing Westchester Fire Ins. Co. v. Nuckols, 666 S.W.2d 372, 375 (Tex. App.—
Eastland 1984, writ ref’d n.r.e.))). Accordingly, we conclude that there is no pleading to
support the trial court’s $1,300 offset of the $2,900 damages award. As such, we sustain
appellants’ first two issues.
In their third issue, appellants argue that the trial court erred in failing to award
interest at a rate established in the contract. Here, the record reflects the existence of a
valid, written contract. Furthermore, the contract provides that any unpaid balance
would accrue interest at a rate of 1.5% per month or 18% per annum. Goodwin did not
challenge this evidence in the trial court. We therefore conclude that the trial court erred
in failing to award interest at the rate established in the contract. See TEX. FIN. CODE ANN.
§ 304.001 (West 2016) (“A money judgment of a court in this state must specify the
postjudgment interest rate applicable to that judgment.”); Degroot, 369 S.W.3d at 926-27
Spivey v. Goodwin Page 9
(“Post-judgment interest is recoverable even if it is not specifically awarded in the
judgment.”); San Antonio Villa Del Sole Homeowners Ass’n v. Miller, 761 S.W.2d 460, 462
(Tex. App.—San Antonio 1988, no writ) (stating that “prejudgment interest is recoverable
as a matter of right when an ascertainable sum of money is determined to have been due
and payable” and “[t]he trial court does not have discretion to increase or reduce
prejudgment interest.”). We sustain appellants’ third issue.
In their fourth issue, appellants assert that the trial court abused its discretion in
denying an award of attorney’s fees. A prevailing party cannot recover attorney’s fees
unless permitted by statute or contract. See Tony Gullo Motors I, L.P., Chapa, 212 S.W.3d
299, 310 (Tex. 2006). Generally, we review the trial court’s decision whether to award
attorney’s fee for abuse of discretion. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).
A trial court abuses its discretion when it acts in an unreasonable and arbitrary manner,
or when it fails to correctly analyze or apply the law. Walker v. Packer, 827 S.W.2d 833,
839-40 (Tex. 1992).
Here, the contract at issue provided that Goodwin agreed to pay costs of a
collection action, including filing fees, attorney’s fees, and costs and expenses. See New
Amsterdam Cas. Co. v. Tex. Indus., Inc., 414 S.W.2d 914, 915 (Tex. 1967) (providing that
when the parties validly contract for recovery of attorney’s fees, courts must enforce the
plain language of the contract). Furthermore, in their counterclaims, appellants alleged
a breach-of-contract action against Goodwin, and despite the offset afforded Goodwin,
Spivey v. Goodwin Page 10
the trial court clearly ruled that Goodwin breached the contract by not paying the final
$2,900 owed. Under section 38.001 of the Texas Civil Practice and Remedies Code,
appellants were entitled to recovery of attorney’s fees in a claim for rendered services,
performed labor, furnished materials, and a written contract. See TEX. CIV. PRAC. & REM.
CODE ANN. § 38.001(1)-(3), (8) (West 2015); see also Hassell Constr. Co., Inc. v. Stature
Commercial Co., Inc., 162 S.W.3d 664, 668 (Tex. App.—Houston [14th Dist.] 2005, no pet.)
(“[The award of fees to a plaintiff recovering on a valid contract claim is mandatory under
[s]ection 38.001 if there is proof of the reasonableness of attorney’s fees.”).
Ordinarily, the reasonableness of the amount of attorney’s fees is left to the
factfinder, and a reviewing court may not substitute its judgment for the jury’s. See Smith
v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547 (Tex. 2009) (citing Ragsdale v. Progressive
Voters League, 801 S.W.2d 880, 881 (Tex. 1990) (per curiam)); see also Bocquet, 972 S.W.2d at
21 (noting that reasonableness and necessity of attorney’s fees are “question[s] for the
jury’s determination”). However, when counsel’s evidence regarding his fees is
uncontroverted, clear, direct and positive, and not contradicted by any other witness or
attendant circumstances, and there is nothing to indicate otherwise, an appellate court
may exercise its discretion and render judgment for attorney’s fees in the interest of
judicial economy. See Ragsdale, 801 S.W.2d at 882; see also World Help v. Leisure Lifestyles,
Inc., 977 S.W.2d 662, 684, 686 (Tex. App.—Fort Worth 1998, pet. denied) (citing Ragsdale
and rendering judgment for attorney’s fees in a breach-of-contract case).
Spivey v. Goodwin Page 11
At the trial, counsel for appellants testified that appellants incurred attorney’s fees
in the amount of $3,453.50. In Defendant’s Exhibit 15, appellants included invoices
submitted by counsel, which indicated $2,491 in attorney’s fees incurred for work up to
the date of the final invoice—December 8, 2015. The invoices also documented the nature
of the work completed and the amount of time involved. However, counsel noted that
he incurred an additional $962.50 in attorney’s fees preparing for the trial and for the trial
itself. None of this evidence was contradicted or controverted by Goodwin in any way.
Because counsel’s evidence regarding his fees is uncontroverted, clear, direct and
positive, and not contradicted by any other witness or attendant circumstances, and there
is nothing to indicate otherwise, we reform the trial court’s judgment to include an award
of $3,453.50 in attorney’s fees. See, e.g., Goudeau v. Marquez, 830 S.W.2d 681, 683-84 (Tex.
App.—Houston [1st Dist.] 1992, no writ) (reforming the trial court’s judgment to include
an award of $790 in attorney’s fees and affirming the judgment as modified). We sustain
appellants’ fourth issue.
III. CONCLUSION
Having sustained all of appellants’ issues on appeal, we modify the trial court’s
judgment to delete the offset for Goodwin’s unpled and unsupported theory and to
include an award of interest at the rate provided in the contract and $3,453.50 in
attorney’s fees. In sum, the modified judgment shall reflect $2,900 in damages awarded
Spivey v. Goodwin Page 12
to appellants, interest at the rate provided in the contract, and $3,453.50 in attorney’s fees.
We affirm the judgment as modified.2
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed as modified
Opinion delivered and filed June 7, 2017
[CV06]
2 In light of our disposition, we dismiss all pending motions as moot.
Spivey v. Goodwin Page 13