AAA Plumbing of Texas, Inc. v. Joseph E. Alexander--Appeal from County Court at Law No 3 of Collin County

IN THE

TENTH COURT OF APPEALS

No. 10-00-080-CV

AAA PLUMBING OF TEXAS, INC.,

Appellant

v.

JOSEPH E. ALEXANDER,

Appellee

From the County Court at Law No. 3

Collin County, Texas

Trial Court # 3-278-97

O P I N I O N

This is an appeal from an award of damages and attorney s fees in a breach of contract case. Appellant AAA Plumbing of Texas, Inc. ( AAA Plumbing ) sued Appellee Joseph Alexander ( Alexander ) contending that Alexander breached a written contract for home repairs between AAA Plumbing and Alexander s wife, Rhonda Alexander. Alexander counterclaimed, alleging that he suffered property damages when AAA Plumbing breached the contract. //

Following a trial to the bench, the court found in favor of Alexander and awarded him $21,179.33 in actual damages and attorney s fees in the amount of $13,500. AAA Plumbing appeals the judgment and presents four issues: (1) whether, as a matter of law, AAA Plumbing was in breach of contract; (2) whether there was any evidence of the reasonableness or necessity of the repair work Alexander contended resulted from AAA Plumbing s breach; (3) whether there was any evidence Alexander owned the house damaged by the alleged breach; and (4) whether there was any evidence supporting the trial judge s award of attorney s fees. We will affirm.

We begin with a review of the contract. On November 18, 1996, AAA Plumbing submitted to Rhonda Alexander a written estimate for repairs to a sanitary sewer line located under the floor of the Alexanders residence. The document, which was prepared by an AAA Plumbing employee, contained a material list and estimated labor cost totaling $1,600 and was signed by Rhonda Alexander. In part, AAA Plumbing agreed in the document to demo bath floor, excavate sanitary sewer, make repairs, backfill, pour concrete and re tile. Both parties agree that the estimate constituted a contract. In pertinent part, the contract provided for a required deposit of $500 with the balance due upon completion of the work. Both parties also agree Rhonda Alexander paid the $500 deposit and that AAA Plumbing began demolishing floor areas of the residence to gain access to the plumbing lines underneath. They agree on little else.

AAA Plumbing contended in its written pleadings that Alexander breached the contract by refusing to pay the balance of $6,349.75, for materials and labor costs incurred in completing the job. In support of its claim, AAA Plumbing presented evidence that the original $1,600 estimate set forth in the contract ultimately proved to be on the low side and that the actual repair required more extensive labor and materials than originally believed. At trial, AAA Plumbing asked for an award of $5,577 in actual damages. Alexander, in turn, alleged AAA Plumbing breached the contract when its workers walked off the job with no explanation and never returned to complete the work (including items detailed in the contract), leaving him with a house of greatly diminished value due to the presence of shoddy workmanship and incomplete work including: gaping floor holes in several areas, an unmounted toilet, and leaking methane gas. Tim Blankenship, a field supervisor for AAA Plumbing, admitted the work detailed in the written estimate was never completed, but alleged that the deplorable condition the testimony showed the house had been left in resulted from the Alexander s refusal to permit AAA Plumbing to return to the property to complete the job. Blankenship testified that he learned of the Alexander s refusal to permit AAA Plumbing to return to the job from an unidentified person in the office who had learned of the banning from a phone call with the Alexanders. The Alexanders, in turn, testified that they never banned AAA Plumbing from the job, that they were surprised when no one ever returned to finish the work, and that their many repeated phone calls and messages to Blankenship and AAA Plumbing over the three weeks following the demolition of their floors went unanswered. According to Alexander, when Blankenship finally did return their calls, Blankenship said he said he didn t want anything to do with the job, demanded that Alexander give me my goddamned money, and terminated the conversation with a threat paraphrased by Alexander at trial as we ll be over there and you ll never know when we re coming.

In its first issue, AAA Plumbing contends there was no evidence it breached the contract because the $1,600 referenced in the contract was clearly only an estimate, subject to revision. It then posits the question in its brief, so where was the alleged breach of contract ? Alexander responds that the evidence showed AAA Plumbing breached the contract by failing to complete the work it agreed to perform in the contract.

In determining a "no-evidence" issue we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001); Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). Anything more than a scintilla of evidence is legally sufficient to support the finding. Cazarez, 937 S.W.2d at 450; Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996).

A "no-evidence" issue may only be sustained when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or 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 of evidence; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998) (citing Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEX. L. REV. 361, 362-63 (1960)), cert. denied, 526 U.S. 1040 (1999). There is some evidence when the proof supplies a reasonable basis on which reasonable minds may reach different conclusions about the existence of the vital fact. Orozco v. Sander, 824 S.W.2d 555, 556 (Tex. 1992).

Alexander specifically pled in counterclaim that AAA Plumbing breached the contract by failing to complete the work agreed. Both parties ultimately agreed that AAA Plumbing s employees did not return to Alexander s residence to complete the work stipulated in the contract, although the evidence was hotly disputed as to why they did not return. The contract specified that payment of the balance above the $500 deposit was due upon completion. The testimony established that AAA plumbing breached the contract when it failed to perform the work it agreed to provide in the contract. We conclude there is more than a scintilla of evidence supporting the trial court s finding of fact and conclusion of law that AAA Plumbing breached the contract. // Issue one is overruled.

In issues two and three, AAA Plumbing challenges the sufficiency of the evidence supporting the trial court s award of $21,179.33 for actual damages to Alexander s property. // Issue two involves AAA Plumbing s allegation that there was no evidence showing the repair work undertaken by Alexander was reasonable and necessary. In issue three, AAA Plumbing similarly complains of the lack of evidence relating to the diminished value of the residence following the breach, and questions whether the evidence proved even that Alexander owned the residence.

As a general rule, monetary damages for injured property are determined by either the reasonable cost of repair or the property s market value. See City of Tyler v. Likes, 962 S.W.2d 489, 497 (Tex. 1997). In the instant case, Alexander sought to prove actual damages under both measures. On appeal, Alexander argues that there was sufficient evidence before the trial court establishing that at least $1,351.75 of the cost of repairs following AAA Plumbing s breach was reasonable and necessary, and that the testimony relating to his ownership and the diminution in the value of the property was independently sufficient to support the damage award.

Alexander testified that because of the breach there had been in a decreased in the value of the property on the order of $20,000 or $30,000. AAA Plumbing s only objection to this testimony was that Alexander was not qualified as an expert on valuation. Rhonda Alexander testified she learned that their residence had decreased by approximately $19,000 in value when they attempted to refinance the residence. Rhonda Alexander testified that the approximate $19,000 decline was caused by the damage AAA Plumbing had done to the residence.

An owner may testify to the diminished value of the damaged property as long as the testimony refers to market value, rather than intrinsic or some other value of the property. See Porras v. Craig, 675 S.W.2d 503, 504-05 (Tex. 1984). This is true even if the owner is not qualified to testify to the value of like property belonging to someone else. Id. at 504. It is clear from the context of their answers that both Alexanders testimony concerning the value of their house referred to its market value. AAA s Plumbing s assertion that there was no evidence the Alexander s owned the residence is without merit. Although there was evidence that at the time of the breach the Alexanders were making payments on the house under lease/purchase agreement. We hold the Alexander s testimony concerning the diminished value of the property due to AAA Plumbing s breach was sufficient to support the trial court s damage award. Because the evidence was sufficient to support the diminution of value measure of damages, we need not address the damage award under the alternative reasonable cost of repair measure. Issues two and three are overruled.

In issue four, AAA Plumbing contends there was no evidence supporting the trial court s award of $13,500 in attorney s fees to Alexander. Alexander s trial counsel, Hon. Michael Suffness, testified that he has been a licensed attorney since 1972 and that his practice is limited primarily to litigation. He further testified he was hired by Alexander to represent him in the instant case and that his legal bills submitted to Alexander totaled $18,560.93, of which $16,345.75 had been paid. Mr. Suffness testified the fees incurred were customary and reasonable in light of the particular circumstances of the case. The only questions directed to Mr. Suffness by AAA Plumbing s trial counsel concerned whether Alexander s request for attorney s fees had been contained in the pleadings. Alexander s pleadings did, in fact, contain that request. We find Mr. Suffness s testimony amounts to more than a mere scintilla of evidence supporting the trial court s award of attorney s fees. Issue four is overruled.

The trial court s judgment is affirmed.

DAVID L. RICHARDS

Justice

Before Justice Vance,

Justice Gray, and

Justice Richards (Sitting by Assignment)

Affirmed

Opinion delivered and filed October 2, 2002

Do not publish

[CV06]