Teresa Von Illyes v. Cary Rolfing, Laura Rolfing, and Kenneth Rolfing ( 2023 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-22-00129-CV
TERESA VON ILLYES, APPELLANT
V.
CARY ROLFING, LAURA ROLFING, AND KENNETH ROLFING, APPELLEES
On Appeal from the 17th District Court
Tarrant County, Texas1
Trial Court No. 017-311724-19, Honorable Melody Wilkinson, Presiding
March 28, 2023
MEMORANDUM OPINION
Before PARKER and DOSS and YARBROUGH, JJ.
Appellant Teresa Von Illyes appeals from the jury verdict and judgment in favor of
the Rolfings on claims arising from the remodel of the Rolfings’ home. We affirm in part
and reverse and render in part.
1 Pursuant to the Texas Supreme Court’s docket equalization efforts, this case was transferred to
this Court from the Second Court of Appeals. See TEX. GOV’T CODE ANN. § 73.001. Should a conflict exist
between precedent of the Second Court of Appeals and this Court on any relevant issue, this appeal will
be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3.
BACKGROUND
In June of 2019, Cary and Laura Rolfing, brother and sister, sought bids from
contractors to renovate and remodel a home owned by their father, Kenneth Rolfing.2
The home was rundown and in poor condition. The Rolfings received a bid from Teresa
Von Illyes and John Barton, d/b/a Clearfork General Construction. The Rolfings entered
into a contract with Clearfork. The contract price was $67,150 and called for a six-week
time frame for completion. The contract required payments by the Rolfings of “one third
of the total project costs up front with the second payment at time of one[-]third completion
and the final payment at time of completion of project.” The contract provided, among
other things, that Clearfork would replace interior and exterior doors and windows
including trim work; replace wood flooring; remove and install new sheetrock; repair wall
cracks; paint walls and ceilings throughout; remove/replace kitchen cabinets and
countertops; remove/replace appliances (oven, refrigerator, dishwasher); install new light
switches, covers, and plugs throughout; and install thermostats and smoke detectors.
Although the contract generally describes the work to be done, the contract does not
itemize the cost of any work to be performed. Von Illyes hired her father, Floyd Stober,
to oversee the project.
The Rolfings made the first payment on the contract before work began. Cary
testified that there were problems within the first two weeks because “there was no one
there to do the work.” He expected the project to be completed by “mid to late July at the
2 Because the appellees share the same last name, when referring to them individually, we will
refer to them by their first names.
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latest.” Soon after construction began, changes were made outside the contract for roof
repair ($7,000) and ductwork ($1,950). As of mid-July, the renovation was one-third
complete, and the Rolfings had paid Von Illyes and Clearfork a total of $44,200 on the
contract, plus an additional $8,950 for the roof and ductwork.
Through text messages and emails to Von Illyes, Cary expressed his frustration
that construction was behind schedule and displeasure with the workmanship of the
project as a whole. In early August, Cary made a “punch list” of items that he and Laura
had identified as requiring completion or correction to finish the project. Cary also put
blue tape on those areas that needed to be repaired or repainted.
Separately, both Von Illyes and Barton sought final payment for the project from
Cary. Cary refused to make the final payment because of his complaints that the work
was neither complete nor satisfactory. Von Illyes filed a mechanic’s lien against the
property on August 26. On August 28, Barton texted Cary a picture of a mechanic’s lien
that Barton had filed. After learning that liens had been filed, Cary told the workers at the
house to take their tools and leave. Cary emailed Von Illyes to “cease work” until the
matter was resolved.
The Rolfings sued Von Illyes, Barton, and Clearfork seeking release of liens,
damages for breach of contract and deceptive trade practices, and attorney’s fees. Von
Illyes and Barton each filed a counterclaim alleging breach of contract by the Rolfings for
nonpayment. Von Illyes also sought recovery in quantum meruit.
Cary testified to a host of problems with the workmanship and quality of the work
performed. More than 130 photographs were admitted into evidence depicting the poor
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workmanship and substandard quality of the remodel job performed by Clearfork. Cary
testified that the project was not completed by August 26, 2016, and less than ten percent
of the items on the punch list had been completed when the workers left.
Von Illyes testified that electrical, plumbing, and structural issues, among other
things, caused delays with the project. She acknowledged that the Rolfings paid $44,200
plus the amount agreed upon for the roof and duct work, but still owed approximately
$23,000 on the contract. She admitted that they are entitled to an offset of $2,000 for
some things that were not finished. However, she testified that the project was complete
as of August 26. Von Illyes disputed that Cary formally gave her a punch list. She claimed
that Clearfork prepared its own punch list, but Cary kicked the workers off the property
before the work on the list could be completed. Von Illyes testified that Cary did not show
up for the final walkthrough. She also noted that, “fixing or repairing blue-tape items after
a final walkthrough is not part of the completion of a project.”
The case was tried to a jury which found that Clearfork breached the contract and
failed to comply with the implied warranty of good and workmanlike performance. The
jury awarded the Rolfings damages in the amount of $27,1503 and $6,000 in legal fees.
Von Illyes filed a motion for judgment notwithstanding the verdict. The trial court entered
3 The Rolfings brought claims for breach of contract and violations of the Texas Deceptive Trade
Practices Act. The jury awarded the Rolfings identical damages of $25,150 for loss of benefit of the bargain
and $2,000 for cost of repair in response to Question 2 (damages for breach of contract) and Question 7
(damages for violation of the D.T.P.A.). The Rolfings failed to obtain the necessary jury findings in their
favor as to the alleged violations of the Texas Deceptive Trade Practices Act. The trial court’s judgment
awarded the Rolfings total damages of $27,150 plus attorney’s fees and costs. Von Illyes has raised no
challenge to the jury’s findings related to liability for breach of contract.
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judgment on the jury’s verdict. After her motion for new trial was overruled by operation
of law, Von Illyes brought this appeal. Barton did not appeal the trial court’s judgment.
In her first two issues, Von Illyes challenges the legal and factual sufficiency of the
evidence to support the award of damages in favor of the Rolfings. In her third issue, she
contends that the jury’s determination that she failed to complete compensable work for
which she was not compensated is against the great weight of the evidence.
STANDARD OF REVIEW
Under a legal sufficiency standard, we consider all of the evidence in the light most
favorable to the prevailing party, make every reasonable inference in that party’s favor,
and disregard contrary evidence unless a reasonable factfinder could not disregard that
evidence. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). A legal sufficiency
challenge may only be sustained when the record discloses (a) a complete absence of
evidence of a vital fact, (b) the court is barred by rules of law or evidence from giving
weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove
a vital fact is no more than a mere scintilla of evidence, or (d) the evidence conclusively
establishes the opposite of the vital fact in question. Id. at 810. Evidence does not exceed
a scintilla if it is so weak as to do no more than to create a mere surmise or suspicion that
the fact exists. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).
In a factual sufficiency review, the appellate court considers all of the evidence in
the record in a neutral light and sets aside the jury’s verdict only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain,
709 S.W.2d 175, 176 (Tex. 1986) (per curiam). When an appellant challenges an adverse
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finding on an issue on which it did not have the burden of proof at trial, we set aside the
verdict only if the evidence supporting the finding is so weak as to make the verdict clearly
wrong and manifestly unjust. Reliant Energy Servs., Inc. v. Cotton Valley Compression,
LLC, 336 S.W.3d 764, 782 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
ANALYSIS
Issue One: Benefit of the Bargain Damages
In her first issue, Von Illyes challenges the jury’s answer to Question No. 2, which
asked jurors to determine the sum of money, if any, that would fairly and reasonably
compensate the Rolfings for their actual damages. In subpart (a) of Question No. 2, the
court instructed the jury to consider as an element of damages, the loss of the benefit of
the bargain, defined as
the difference, if any, between the value of the renovation and remodel job
agreed to by the parties and the value of the renovation and remodel job
performed by [Clearfork]. The difference in value, if any, shall be
determined at the time and place the renovation and remodel job was
performed.
This measure of damages is known as the “benefit of the bargain” measure. Leyendecker
& Assocs. v. Wechter, 683 S.W.2d 369, 373 (Tex. 1984) (op. on reh’g). The jury’s answer
was “$25,150” and Von Illyes’s first issue contends that there is no evidence to support
this amount.
The jury was presented with evidence that the value of the services to be provided
by Clearfork, according to the contract, was $67,150. The Rolfings were to submit three
payments, representing “one third of the total project costs up front with the second
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payment at time of one[-]third completion and the final payment at time of completion of
project.” The Rolfings made the first payment before the work began. The second
payment was made mid-July. The final payment of $22,950 was not due until the
completion of the project. Cary testified that he made payments to Von Illyes for work
performed under the contract totaling $44,200, but that he did not make the final payment
because the project was not completed. After the Rolfings made the payment in July,
Clearfork continued to work on the property. There is evidence that the Rolfings received
materials, labor, and appliances as dictated by the contract, but there was no testimony
presented as to the nature of the work completed, when the work was completed, the
value of that work, or the cost of materials provided by Clearfork at any stage of the
contract.4
The typical statement of the benefit-of-the-bargain measure is that it represents
the difference between the value expected from the contract and the value received by
the nonbreaching party. Walker & Assocs. Surveying, Inc. v. Austin, 301 S.W.3d 909,
919 (Tex. App.—Texarkana, 2009, no pet.). When, as here, the parties contract for a
specific project to be completed for a specified price, the value expected is a completed
project for the stated price. The Rolfings contracted with Clearfork for a stated price of
$67,150, although they only paid $44,200 of that amount. The jury was required to
determine its award also based, in part, on the value of the renovation and remodel
performed by Clearfork. However, there is no evidence to support that critical part of the
4 Cary testified that he was asking the jury to award $44,200—the amount the Rolfings paid to
Clearfork. However, this is not a proper amount of damages because the Rolfings did not plead for
rescission of the contract.
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benefit-of-the-bargain equation—the value of the renovation and remodel work that
Clearfork performed. Because no evidence was admitted regarding the value of the work
that was performed by Clearfork, the jury could not calculate the benefit-of-the-bargain
damages suffered by the Rolfings.
Because the jury could not calculate the amount of damages according to the
method prescribed in the jury question, we hold that the evidence is legally insufficient to
support $25,150 in loss of the benefit of the bargain. Because we so hold, we need not
address Von Illyes’s factual sufficiency complaint. See TEX. R. APP. P. 47.1.
Issue 2: Cost to Repair
In her second issue, Von Illyes contends that there is a complete absence of
evidence that the Rolfings were damaged in the amount of $2,000 for the reasonable cost
to repair the property.
The court’s charge defined “cost to repair” to include “reasonable and necessary
costs to finish or repair items on the ‘punch list’ or items noted for repair by blue tape.” At
the charge conference, Von Illyes objected to this element of damage because there was
no evidence of “any blue tape repairs,” and further objected on the basis that “[the
Rolfings] hasn’t paid for that cost for which the evidence was given.”
Because the Rolfings sought to recover remedial damages, they were required to
prove the cost to complete or repair the work agreed to, less the unpaid balance on the
contract price. McGinty v. Hennen, 372 S.W.3d 625, 627 (Tex. 2012) (per curiam)
(explaining that 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
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contract price . . . .”). In addition, the Rolfings were required to prove that the damages
sought were reasonable and necessary. Id. (citing Mustang Pipeline Co. v. Driver
Pipeline Co., 134 S.W.3d 195, 200 (Tex. 2004) (per curiam)).5 To do so, the plaintiff must
show more than the nature of the injuries, the character of and need for the services
rendered, and the amounts charged therefore. Id. (citing Dallas Ry. & Terminal Co. v.
Gossett, 294 S.W.2d 377, 383 (Tex. 1956)).
The Rolfings presented testimony that the remodeling work performed by Clearfork
was deficient. Cary testified that the exterior doors and windows were defectively
installed; the windows were not properly caulked and sealed; the floor in the garden room
was buckled; the tile backsplash was unlevel; the cabinets were not flush with the wall;
the sink fell and damaged the marble countertop; painted doors were chipped and
peeling; and fifty percent of the wall cracks were not repaired. After Clearfork left the
property, Laura put in new flooring in the kitchen that was damaged when the appliances
were installed, and the dining room floor remodel was completed by installing new
subflooring and flooring. The Rolfings submitted photographic evidence that supported
an injury caused by Clearfork. However, the Rolfings did not testify to any out-of-pocket
expenses incurred to repair the deficient work or submit any evidence of what it would
cost to repair the deficiencies. Cary testified that he made a “punch list” of items that he
and Laura had identified as requiring completion or correction to finish the project. Cary
5 Although there was evidence of an unpaid balance on the contract, the jury charge failed to
properly instruct the jury to deduct any unpaid balance on the contract price and no party objected to the
omission. See, e.g., Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (absent preserved meritorious
complaint of charge error, challenges to sufficiency of evidence supporting jury findings are evaluated in
light of charge as submitted).
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also put blue tape on the items that needed to be repaired or repainted. However, there
was no testimony that the Rolfings paid any amount for reasonable and necessary repair
costs. Moreover, there was no evidence presented of what items were on the punch list
or marked by blue tape, nor did the Rolfings provide a repair estimate for those items.
Stober acknowledged that all of the items on the punch list were not complete
when Cary stopped the work. Von Illyes agreed with Stober’s testimony that the items
remaining to be completed under the contract could be done for $2,000. Von Illyes
testified that the Rolfings were due an offset of “at most, $2,000” for items that Stober
was unable to complete before he was asked to leave the property. This amount does
not include the kitchen sink repair and damaged marble countertop. However, no
evidence was presented regarding the cost of these repairs. According to Von Illyes,
“fixing or repairing blue-tape items after a final walkthrough is not part of the completion
of a project.”
The evidence supports a cost of $2,000 to finish the contract based on Clearfork
purchasing and installing a ceiling fan, light fixture, and smoke detectors, and repainting
and caulking around the windows. However, this amount does not equate to an element
of damage recoverable by the Rolfings for “cost to repair.” If anything, this amount would
be credited against the total contract price owed by the Rolfings. Further, there was no
evidence of what items were noted on the punch list or the amount of any “blue tape”
repairs. A party seeking recovery for the cost of repairs must prove their reasonable
value. Ebby Halliday Real Estate, Inc. v. Murnan, 916 S.W.2d 585, 589 (Tex. App.—Fort
Worth 1996, writ denied). Consequently, the evidence is insufficient to support an award
of $2,000 for cost to repair.
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Take-Nothing Judgment/Attorney’s Fees
In a subissue, Von Illyes also challenges the jury’s answer awarding attorney’s
fees to the Rolfings. She argues that a take-nothing judgment is appropriate with regard
to damages under both the benefit-of-the-bargain and cost-of-repair theories. As set forth
in our analysis of the first two issues, we agree with Von Illyes. Because the evidence
does not support an award of actual damages, the Rolfings cannot recover the $6,000 in
attorney’s fees awarded to them. See Green Int’l Inc. v. Solis, 951 S.W.2d 384, 390 (Tex.
1997); Nabours v. Longview Sav. & Loan Ass’n, 700 S.W.2d 901, 905 (Tex. 1985).
Issue 3: Claim for Quantum Meruit
Von Illyes’s third issue is premised on her equitable claim for quantum meruit. She
contends that the jury’s determination that she failed to complete compensable work for
which she was not compensated is against the great weight of the evidence.
Von Illyes bore the burden to prove all elements of her claim for quantum meruit.
To recover under a theory of quantum meruit, Von Illyes had to prove that: (1) Clearfork
rendered valuable services or furnished valuable materials to the Rolfings; (2) the
Rolfings accepted, used, and benefitted from the services or materials; and (3) the
Rolfings were reasonably notified that Clearfork expected to be compensated for the
services or materials. See Vortt Expl. Co., v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944
(Tex. 1990). The right to recover under a theory of quantum meruit is independent of any
contract. Id. The claimant is required to produce evidence of the correct measure of
damages in order to recover on a quantum meruit claim. LTS Grp., Inc. v. Woodcrest
Capital, L.L.C., 222 S.W.3d 918, 920-21 (Tex. App.—Dallas 2007, no pet.). The measure
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of damages for recovery on a quantum meruit claim is the reasonable value of the work
performed and the materials furnished. Hill v. Shamoun & Norman, LLP, 544 S.W.3d
724, 733 (Tex. 2018). A party generally cannot recover under a quantum meruit claim
when there is a valid contract covering the services or materials furnished. Id.In support of her claim for quantum meruit, Von Illyes points to a host of services
she provided that were not subject to complaint by the Rolfings including the installation
of new appliances and blinds and the removal of carpet, a toilet, appliances, cabinets,
and windows. Yet, these services were included in the scope of work outlined in the
contract. Further, Von Illyes did not present evidence of the value of these or any other
services or materials provided outside the contract or the value of compensable work for
which she was not compensated. There was no showing by Von Illyes that the value of
the work she provided was greater than the amount the Rolfings paid. See Knight
Renovations, LLC, v. Thomas, 525 S.W.3d 446, 455 (Tex. App.—Tyler 2017, no pet.).
The work for which Von Illyes sought recovery was included in the scope of work
contemplated within the parties’ agreement. As such, Von Illyes was not entitled to
recover an award of quantum meruit damages for this work. See Lott v. Brown, No. 12-
17-00093-CV, 2018 Tex. App. LEXIS 9676, at *18 (Tex. App.—Tyler Nov. 28, 2018, no
pet.) (mem. op.). Accordingly, we overrule issue three.
CONCLUSION
We sustain Von Illyes’s first two issues. We reverse the trial court’s judgment in
favor of the Rolfings and render a take-nothing judgment on the Rolfings’ damage awards.
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We overrule issue three and affirm the jury’s decision on Von Illyes’s quantum meruit
claim.
Judy C. Parker
Justice
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