The Beaver Consulting Corp. d/b/a Municipal Development Group v. Sandwater L.P.--Appeal from 295th District Court of Harris County

Opinion filed June 18, 2008

In The

Eleventh Court of Appeals

__________

 No. 11-06-00171-CV

_________

THE BEAVER CONSULTING CORP. D/B/A MUNICIPAL DEVELOPMENT GROUP, Appellant

V.

SANDWATER L.P., Appellee

On Appeal from the 295th District Court

Harris County, Texas

Trial Court Cause No. 2003-58482

M E M O R A N D U M O P I N I O N

Sandwater L.P. filed suit against the Beaver Consulting Corp. d/b/a Municipal Development Group (MDG) for breach of contract, unjust enrichment, deceptive trade practices, and breach of common-law warranties. MDG filed counterclaims for breach of contract, suit on a sworn account, and quantum meruit. The trial court found in favor of Sandwater and awarded Sandwater $37,320 in damages and $33,518.81 in attorney=s fees. MDG appeals from the trial court=s judgment. We affirm.

In July 2002, Sandwater and MDG entered into a contract for MDG to provide engineering services to Sandwater for the development of a subdivision. The contract stated that MDG would provide Athe necessary planning, surveying and engineering services necessary to accomplish the development of this subdivision, for a professional services fee not to exceed $42,000.@ The contract further stated that MDG would provide the planning, surveying, and engineering services in compliance with the applicable published regulations of the City of Jersey Village and Harris County. The contract provided that any Agovernmental or regulatory agency required redesign or controversy or redesign due to client desired changes@ would be billed by the hour as additional items.

Frank Edward Brooks, who is under contract as the City Engineer for the City of Jersey Village, testified at trial that the plans developed by MDG were not acceptable to the City of Jersey Village. Brooks testified to several problems with the plans submitted by MDG, but the main issue creating controversy between the parties involved the inclusion of a lift station. The plans developed by MDG included a lift station, and the City of Jersey Village did not want a lift station on that piece of property. The City of Jersey Village Development Code provided that the developer Ashall not design or construct lift stations or separate treatment facilities unless such lift stations or separate facilities are more beneficial to the city than constructing an adequate outfall or approach sewer from the existing system.@ Brooks testified that MDG needed to show some engineering reason why a lift station was necessary and that MDG never attempted to show the necessity for a lift station. MDG did not submit a set of plans to the City of Jersey Village that did not include a lift station, and the City of Jersey Village did not approve the plans submitted by MDG. MDG informed Sandwater that the removal of the lift station from the plans would cost additional money. MDG and Sandwater began to dispute the engineering fees charged by MDG. Sandwater agreed to hire a consultant to help MDG complete the plans without a lift station to gain approval by the City of Jersey Village. MDG refused to work with another engineer unless paid additional money. Sandwater terminated the contract with MDG and hired a new engineer to develop the subdivision. In the first issue on appeal, MDG argues that the trial court erred in granting judgment for Sandwater on its breach of contract claim after granting a directed verdict in favor of MDG on the same claim. In the second issue on appeal, MDG contends that the trial court erred in granting judgment for Sandwater on its breach of contract claim. After Sandwater rested its case, MDG moved for a directed verdict. The trial court granted MDG=s motion for directed verdict on the breach of contract claim that MDG=s plans did not comply with the applicable, published regulations of the City of Jersey Village and Harris County. The trial court denied MDG=s motion for directed verdict on the breach of contract claim that MDG refused to perform the engineering services for the contracted amount. MDG then presented its case for its counterclaims against Sandwater. At the close of evidence, the trial court granted judgment in favor of Sandwater.

Rather than a motion for directed verdict, the proper motion to make after the plaintiff rests in a bench trial is a motion for judgment. Qantel Bus. Sys. Inc. v. Custom Controls Co., 761 S.W.2d 302, 303 (Tex. 1988); Matheus v. Sasser, 164 S.W.3d 453, 457 (Tex. App.CFort Worth 2005, no pet.). On appeal from the trial court=s judgment in a bench trial, the legal and factual sufficiency of the evidence to support the judgment may be challenged as in any other case. Ashcreek Homeowner=s Ass=n, Inc. v. Smith, 902 S.W.2d 586, 587 (Tex. App.CHouston [1st Dist.] 1995, no writ). When we review legal sufficiency, we review the evidence in a light that tends to support the finding of the disputed facts and disregard all evidence and inferences to the contrary. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). We must credit the favorable evidence if a reasonable factfinder could and disregard the contrary evidence unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). When reviewing a finding for factual sufficiency, we consider all of the evidence and will set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

The trial court has plenary power to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed. Tex. R. Civ. P. 329b(d). During this period, the trial court=s power to modify its judgment is virtually absolute. Stallworth v. Stallworth, 201 S.W.3d 338, 348-49 (Tex. App.CDallas 2006, no pet.). The trial court orally granted a partial motion for judgment in favor of MDG. The trial court=s written judgment does not reference the earlier oral announcement of judgment in favor of MDG. The written judgment controls over the trial court=s oral pronouncements. Nine Greenway Ltd. v. Heard, Goggan, Blair & Williams, 875 S.W.2d 784, 787 (Tex. App.CHouston [1st Dist.] 1994, writ den=d). Therefore, the written judgment impliedly reversed the earlier oral motion for judgment in favor of MDG. The trial court retained plenary power to vacate its ruling in favor of MDG. Rule 329b(d).

MDG argues that the evidence does not support the trial court=s judgment in favor of Sandwater on its breach of contract claim. The contract stated that MDG would provide Athe necessary planning, surveying and engineering services necessary to accomplish the development of this subdivision, for a professional services fee not to exceed $42,000.@ The contracted services were to be provided in compliance with the applicable published regulations of the City of Jersey Village and Harris County. The published development code for the City of Jersey Village does not allow a developer to design or construct lift stations unless the lift stations are more beneficial to the city.

Despite the published regulations of the City of Jersey Village, the original plans prepared by MDG contained a lift station. MDG did not show an engineering reason as to why the lift station was necessary. These plans were not approved by the City of Jersey Village. MDG produced revised plans; however, there was testimony that MDG never provided Sandwater with plans that did not include a lift station. MDG did not submit any plans to the City of Jersey Village that did not include a lift station, and the city did not approve any plans prepared by MDG. MDG would not provide Sandwater with any further revisions unless Sandwater paid additional fees. The record shows that Sandwater had paid MDG fees in excess of the $42,000 stated in the contract. The evidence supports the trial court=s judgment in favor of Sandwater on its claim for breach of contract. MDG has not shown that Sandwater repudiated the contract or that it was excused from performance. MDG=s first and second issues on appeal are overruled.

In the third issue, MDG argues that the evidence is factually insufficient to support the trial court=s findings of fact and conclusions of law. Findings of fact in a case tried to the court have the same force and dignity as a jury=s verdict upon jury questions. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). The trial court=s findings of fact are reviewable for legal and factual sufficiency of the evidence using the same standards that are applied in reviewing the sufficiency of the evidence underlying jury findings. Id.

A party may not challenge conclusions of law for factual sufficiency, but we may review conclusions of law to determine their correctness based upon the facts. Rischon Dev. Corp. v. City of Keller, 242 S.W.3d 161, 167 (Tex. App.CFort Worth 2007, pet. den=d); Citizens Nat=l Bank v. City of Rhome, 201 S.W.3d 254, 256 (Tex. App.CFort Worth 2006, no pet.); Dominey v. Unknown Heirs & Legal Representatives of Lokomski, 172 S.W.3d 67, 71 (Tex. App.CFort Worth 2005, no pet.). We will uphold a conclusion of law if the judgment can be supported on any legal theory supported by the evidence. Rischon Dev. Corp., 242 S.W.3d at 167; Tex. Dep=t of Public Safety v. Stockton, 53 S.W.3d 421, 423 (Tex. App.CSan Antonio 2001, pet. den=d). We review conclusions of law de novo, and we will not reverse unless they are clearly erroneous as a matter of law. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Rischon Dev. Corp., 242 S.W.3d at 167.

As previously discussed, the record supports the trial court=s findings that MDG did not provide Sandwater with development plans that complied with the published regulations of the City of Jersey Village and Harris County. The City of Jersey Village did not allow the inclusion of a lift station unless shown to be beneficial to the city, and MDG did not provide Sandwater plans without a lift station. The record also shows that MDG did not complete the surveying of the development as provided for in the contract. MDG refused Sandwater=s offer to hire a consultant to assist MDG in revising the plans. MDG would not release any plans to Sandwater unless Sandwater paid additional money. Sandwater paid MDG more than $42,000 provided for in the contract. MDG argues that additional fees were authorized because the contract provided that any Agovernmental or regulatory agency required redesign or controversy or redesign due to client desired changes@ would be billed by the hour as additional items. However, the revisions were required because the plans did not comply with the published regulations of the City of Jersey Village. The trial court=s findings are not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. The conclusions of law are supported by the facts. MDG=s third issue on appeal is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

June 18, 2008

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.