      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-05-00190-CV



           Appellants, John Reed Kleas and Lelah Mae Broussard Kleas d/b/a
   Allegra Management; Allegra Development, L.P.; and Allegra Management, L.L.C. //
    Cross-Appellant, BMC West Corporation d/b/a Stripling-Blake Lumber Company

                                                  v.

     Appellees, BMC West Corporation d/b/a Stripling-Blake Lumber Company and
   Edward Mancias// Cross-Appellees, John Reed Kleas and Lelah Mae Broussard Kleas
                 d/b/a Allegra Management; Allegra Development, L.P.;
                            and Allegra Management L.L.C.


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
        NO. GN202575, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING



                             MEMORANDUM OPINION


               The parties appeal a judgment rendered after a jury trial in a suit on a sworn account.

Appellee/cross-appellant BMC West Corporation d/b/a Stripling-Blake Lumber Company

(“Stripling-Blake”), a supplier of building products, sued appellants/cross-appellees John Reed Kleas

and Lelah Mae Broussard Kleas d/b/a Allegra Management; Allegra Development, L.P.; and Allegra

Management, L.L.C. (“Allegra”),1 to recover $15,320.32 for goods bought on account. Allegra filed

a counterclaim, asserting an offset based on the alleged defective nature of the goods purchased,


       1
          We refer to Allegra Development L.P., a development company, Allegra Management,
L.L.C., and the individual appellants collectively as “Allegra,” except when necessary to refer to the
companies’ principals, appellants John Reed Kleas (“Kleas”) and Lelah Mae Broussard Kleas
(“Lelah Kleas”).
additional DTPA damages, and attorney’s fees. Stripling-Blake then asserted a contribution and

indemnity claim against its supplier, Alexander Moulding Company, and against Edward Mancias,

the project’s self-employed painter. Allegra filed a cross-claim against Alexander Moulding and also

filed direct claims against two employees of Stripling-Blake, James Agnew and Victor Mendoza.

                At trial, the jury found that Allegra failed to comply with its account agreement with

Stripling-Blake and owed the amount on account, plus attorney’s fees, but that Stripling-Blake failed

to comply with an implied warranty of merchantability, crediting $3,500 to Allegra by way of offset

against the $15,320.32 awarded to Stripling-Blake. The trial court entered judgment on the verdict.

                On appeal, in four points of error, Allegra urges that (i) the trial court abused its

discretion in awarding Stripling-Blake $66,087.73 in attorney’s fees because there was insufficient

evidence, the award was excessive, and the fees should have been segregated, (ii) the trial court

abused its discretion in allowing a trial amendment based upon trial by consent as to the jury’s award

of damages and attorney’s fees to Mancias, and (iii) the trial court abused its discretion in failing to

award attorney’s fees to Allegra on its warranty claim. In its cross appeal, Stripling-Blake urges that

the trial court erred in rendering judgment for Allegra on the warranty claim. For the reasons that

follow, we affirm the judgment.2


                                          BACKGROUND

                The uncontroverted evidence presented at trial showed that on October 25, 2000,

Allegra opened a credit account with Stripling-Blake by executing a written account agreement


        2
         We grant Allegra’s motion to file a supplemental brief, and we grant Stripling-Blake’s
motion for leave to file a reply. We also grant Allegra’s motion to substitute counsel.

                                                   2
through its principals John Kleas and his mother, Lelah Kleas. The account agreement allowed

Allegra to purchase on credit various construction materials from Stripling-Blake for the construction

of a 5,000 square foot house located in south Austin. Under the terms of the contract, Stripling-

Blake would provide construction materials, and Allegra would pay for such products in a timely

manner. Lelah Kleas also signed a personal guaranty of the Allegra account. Under the guaranty

agreement, Lelah Kleas agreed that should Allegra fail to pay under the account agreement,

she would be responsible for such payments under the guaranty agreement. The evidence at trial

showed that she reviewed the account agreement and discussed its terms with her son John Kleas,

with whom she jointly managed Allegra’s subdivision development business. The agreements,

account statement, invoices, lien notices, and lien claim affidavits were admitted into evidence

without objection.

               At trial, Allegra did not challenge Stripling-Blake’s claim that Allegra failed to make

payment for certain materials, including baseboard trim, that were provided by Stripling-Blake

pursuant to the agreement. Although they admitted that they had failed to pay $15,320.32 that

Stripling-Blake claimed was owed, the Allegra principals claimed an offset for repair costs by virtue

of Allegra’s contention that a certain trim baseboard product, item “B695,” was defective.

               The account agreement specified the terms of payments and disclaimed warranties

as follows:


       BMC WEST EXPRESSLY DISCLAIMS ALL WARRANTIES, EITHER
       EXPRESSED OR IMPLIED, CONCERNING THE FITNESS FOR ANY
       PARTICULAR PURPOSE OF THE MATERIALS DELIVERED. Purchaser
       assumes all risk and liability for the results of the use of any merchandise sold by
       BMC West to Purchaser. Any items not manufactured by BMC West are warranted

                                                  3
       only as warranted by the manufacturer or distributor of such items; otherwise, all
       such items are sold on an “AS IS” basis. Wood products have naturally occurring
       latent defects that are not ascertainable by inspection, including insects and similar
       natural conditions. In the event of the discovery of any defect in materials within one
       (1) year of delivery, BMC West’s liability, whether in contract, in tort, under any
       warranty, in negligence, or otherwise, is limited to replacement of such defective
       materials. BMC WEST ASSUMES NO LIABILITY FOR ANY SPECIAL,
       INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. Any
       recommendation given or advice offered by a BMC West representative is strictly for
       purposes of assisting the Purchaser in making a decision and in no way constitutes
       a representation or warranty.


The agreement also provided for Stripling-Blake to retain an attorney to collect amounts due under

the contract and provided for the payment of reasonable attorney’s fees incurred by Stripling-Blake

to be paid by the purchaser “whether or not suit is brought, to collect any money due hereunder,

including post-judgment costs and attorney fees.” In addition, the guaranty agreement provided for

the payment of attorney’s fees:


       Guarantor shall pay upon demand all of BMC West’s costs and expenses incurred in
       connection with the enforcement of this Guaranty, including without limitation
       reasonable attorney fees, whether or not litigation is commenced, and at trial and on
       appeal.


               After a three-day trial, the jury found that Allegra failed to comply with its account

agreement with Stripling-Blake (Question No. 1); Lelah Kleas failed to comply with the guaranty

agreement (Question No. 2); Stripling-Blake did not fail to comply with its agreement with Allegra

(Question No. 5); Stripling-Blake did not make a negligent misrepresentation (Question No. 7) or

engage in false, misleading, or deceptive acts (Question No. 9); Stripling-Blake failed to comply with

implied warranties of merchantability or fitness (Question No. 8); and the baseboard manufacturer



                                                  4
Alexander Moulding did not fail to comply with implied warranties of merchantability or fitness

(Question No. 11). In its verdict, the jury credited $3,500 to Allegra by way of offset against the

$15,320.32 awarded to Stripling-Blake and awarded attorney’s fees to Stripling-Blake and Mancias,

but declined to award any fees to Allegra.

               Stripling-Blake moved the trial court to disregard the jury’s affirmative answers to

Question No. 8 and its award of $3,500 in response to Question No. 12 on the basis of the implied

warranty disclaimer in the account agreement, but the trial court denied the motion.

               Allegra and Stripling-Blake appealed.


                                         DISCUSSION

Standard of review

               Allegra’s complaints on appeal include challenges to the trial court’s award

of attorney’s fees and Mancias’s trial amendment. A trial court’s award of attorney’s fees and

complaint of improper trial amendment are reviewed under an abuse of discretion standard. Bocquet

v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). A trial court abuses its discretion when it acts without

reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d

238, 241-42 (Tex. 1985).

               Stripling-Blake challenges the evidence supporting the trial court’s award of damages

to Allegra on Allegra’s breach of warranty claim. In assessing the sufficiency of the evidence as

to the award of damages to Allegra under its warranty claim, we view the evidence in the light

most favorable to the verdict and indulge any reasonable inference in its favor. See City of Keller

v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).

                                                 5
Did the trial court err in awarding attorney’s fees to Stripling-Blake and in declining to award
attorney’s fees to Allegra?

       Award of attorney’s fees to Stripling-Blake

               In their first point of error, Allegra contends that the trial court erred in awarding

$66,087.73 as necessary and reasonable attorney’s fees for a suit on a sworn account of $15,320.32

because the evidence was conclusory, the amount was excessive, and Stripling-Blake failed to

segregate the attorney’s fees it incurred to defend the warranty claim.

               A determination of reasonable attorney’s fees is a question for the trier of fact.

Stewart Title Guaranty Co. v. Sterling, 822 S.W.2d 1, 12 (Tex. 1991). The amount of a fee award

rests in the sound discretion of the trial court, and its judgment will not be reversed on appeal absent

a clear abuse of discretion. Cordova v. Southwestern Bell Yellow Pages, Inc., 148 S.W.3d 441, 446-

47 (Tex. App.—El Paso 2004, no pet.). Even though the appropriate standard of review is abuse of

discretion, we may nevertheless review a fee award for sufficiency of the evidence. Stewart Title

Guaranty Co., 822 S.W.2d at 11.

               Attorney’s fees are not recoverable unless authorized by statute or contract. Medical

City Dallas, Ltd. v. Carlisle Corp., 251 S.W.3d 55, 58 (Tex. 2008); Tony Gullo Motors I, L.P.

v. Chapa, 212 S.W.3d 299, 310-11 (Tex. 2006); Strayhorn v. Raytheon E-Systems, Inc., 101 S.W.3d

558, 571 (Tex. App.—Austin 2003, pet. denied). It is uncontroverted that the parties had an

agreement that provided for attorney’s fees. In addition, in its pleadings, Stripling-Blake sought

attorney’s fees under both its agreements and pursuant to chapter 38 of the civil practice and

remedies code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 38.001-.006 (West 2008). Although

Allegra asserted that the fees were excessive and were required to be segregated, they do not dispute


                                                   6
that both agreements provided for the payment of attorney’s fees nor do they contest the breadth of

the language in the agreements.

                Under the terms of the agreements, Allegra agreed to pay all collection costs and

expenses, including attorney’s fees, incurred in connection with the enforcement of the agreements.

By the terms of the agreements, Allegra was bound to pay attorney’s fees incurred by Stripling-Blake

in its successful collection effort. The trial court submitted a jury issue inquiring as to “a reasonable

fee for the necessary services of Stripling-Blake’s attorneys in this case, stated in dollars and cents.”

Based on the jury’s answers to the questions posed in the court’s charge, the trial court awarded

$66,087.73 to Stripling-Blake as reasonable and necessary fees for preparation for trial and trial,

$15,000 for an appeal to the court of appeals, $5,000 for preparation of a petition for review in the

event of an appeal to the supreme court, and $3,500 for preparation of a brief to the supreme court

in the event review is granted.

                Stripling-Blake provided billing records as exhibits and testimony to support the

award of attorney’s fees incurred at the trial court level. The evidence pertaining to Stripling-Blake’s

attorney’s fees came from three sources: (1) testimony of Stripling-Blake’s attorney Travis Phillips,

(2) testimony from attorney George Slade, and (3) extensive billing statements admitted into

evidence as Plaintiff’s Exhibit 8. Phillips testified that the matter was referred to his office in

January 2002 and he and another lawyer in his office worked on the case from its inception.

Although Phillips believed the case was essentially a collections case, its difficulty was compounded

by Allegra’s “broadly plead” claims that the product was defective and its claims against Stripling-

Blake’s employees. Phillips testified:



                                                   7
              It was even further compounded by a decision that they made to sue two of
       our employees individually, Mr. Mendoza and Mr. Agnew. Mr. Agnew has [ ] been
       dismissed from the case on a take-nothing judgment on summary judgment. Mr.
       Mendoza remains a defendant in the case. And my client has been required to
       vigorously defend its employees since if the employee’s liable, of course the
       company would be liable under a theory of agency. . . .

              This case has been very hotly contested. It’s been a great complex litigation
       matter, although the dollars involved are somewhat insignificant, quite frankly,
       compared to the attorney’s fees that both sides have incurred.


Phillips acknowledged the requirement of allocation of fees between claims for which the fees are

allowed and claims for which they are not and testified that given the claims against the company’s

employees and the complexity of the case, the work done was “inextricably intertwined,” so that the

fees could not be allocated. What would have been a simple case had become substantially more

difficult due to Allegra’s counterclaims. Phillips believed the respective claims of the parties were

interrelated and that he needed to defend the counterclaims in order for Stripling-Blake to recover.

He then testified to the hours worked and that the fees were reasonable, necessary, fair, and standard

in Travis County. He further estimated the amount of fees on appeal. On cross-examination,

Allegra’s attorney did not question Phillips concerning the nature or extent of the work done or

whether segregation was required or appropriate. He queried only whether Phillips’s four-day trial

length estimation was accurate and whether Allegra’s course of action in asserting its counterclaim

was “reasonable.”

               Likewise, Stripling-Blake’s expert on attorney fees, George Slade, testified that

Stripling-Blake’s attorney fees were reasonable, necessary, and incurred as a result of prosecuting

and defending inextricably intertwined claims and counterclaims. He stated that he was familiar



                                                  8
with fees customarily charged in Travis County, having been a trial lawyer in the county for twenty-

one years. He testified that an expected range of fees for a four-day jury trial in Travis County,

preparing and taking five or six depositions, and having various motions heard would be between

$65,000 and $75,000. Based upon his review of the files and the billing statements, he testified that

the fees charged and fees estimated were reasonable, if not actually lower than the customary charge

and rate for an attorney of Phillips’s experience. In a brief cross-examination, Allegra’s attorney

inquired only when Stripling-Blake designated its experts and how many documents Slade examined

in reviewing the file.

               In determining whether the award is excessive, we are entitled to look at the entire

record and to view the matter in light of the testimony, the amount in controversy, the nature of the

case, and our own common knowledge and experience as lawyers and judges. McFadden v. Bresler

Malls, Inc., 548 S.W.2d 789, 790 (Tex. Civ. App.—Austin 1977, no writ). Among the factors most

frequently considered by courts in determining whether attorney’s fees are reasonable are: (1) the

time and labor involved, the novelty and difficulty of the questions involved, and the skill required

to perform the legal services properly; (2) the likelihood that the acceptance of the particular

employment will preclude other employment by the lawyer; (3) the fee customarily charged in the

locality for similar legal services; (4) the amount involved and the results obtained; (5) the nature

and length of the professional relationship with the client; and (6) the experience, reputation, and

ability of the lawyer or lawyers performing the services. Arthur Andersen & Co. v. Perry Equip.

Corp., 945 S.W.2d 812, 818 (Tex. 1997).




                                                 9
                 Fees attributable to the defense of a counterclaim are recoverable if the facts

necessary for the plaintiff to recover also serve to defeat the counterclaim. RepublicBank Dallas,

N.A. v. Shook, 653 S.W.2d 278, 282 (Tex. 1983). In his opening statement, Allegra’s counsel

stated that the baseboard was indeed defective and, because of the cost resulting from its repair,

that amount should offset the amount of Stripling-Blake’s claim. Because Allegra pleaded its

counterclaim as an affirmative defense and urged it as an offset, Stripling-Blake had to overcome

the warranty claim in order to prevail on its debt collection. See RepublicBank, 653 S.W.2d at 282.

Based on the record before us, we conclude the amount of attorney’s fees was reasonable

and necessary.

                 Having concluded that the trial court did not abuse its discretion in awarding

attorney’s fees pursuant to the agreements, we turn to the issue of segregation of attorney’s fees.

Stripling-Blake first contends that Allegra waived any complaint and did not preserve the issue of

segregation for our review because they did not object on that basis when Stripling-Blake presented

its evidence of attorney’s fees. See, e.g., Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997)

(“if no one objects to the fact that the attorney’s fees are not segregated as to specific claims, then

the objection is waived”); McCalla v. Ski River Dev., Inc., 239 S.W.3d 374, 383 (Tex. App.—Waco

2007, no pet.) (to preserve complaint that the opposing party failed to segregate its attorney’s fees,

“[g]enerally, such an issue is preserved by objection during testimony offered in support of attorney’s

fees or an objection to the jury question on attorney’s fees”); Hong Kong Dev., Inc. v. Nguyen,

229 S.W.3d 415, 454 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (failure to object waives

opposing party’s failure to segregate).



                                                  10
               On cross-examination by Alexander Moulding’s attorney, Stripling-Blake’s attorney

testified that his firm had not segregated fees according to the defense of the two employees or the

prosecution or defense of the case because “the work is so inextricably intertwined you can’t

differentiate” it. Allegra’s attorney, also declining to segregate fees, similarly testified that he

was seeking all of Allegra’s attorney’s fees. Both Allegra and Stripling-Blake sought their incurred

attorney’s fees, their attorneys testified in support of their requests, and neither side attempted to

segregate their attorney’s fees. Allegra did not object on the grounds of failure to segregate prior to

the award of attorney’s fees to Stripling-Blake.3 Because Allegra failed to object to the evidence,

including testimony and billing records, on the ground that the fees should be segregated and also

did not object to the charge as submitted on the issue of attorney fees, the trial court did not have an

opportunity to correct any error and, thus, any error was waived. See Tex. R. App. P. 33.1(a)(1) (to

preserve complaint for appellate review, the complaint must be made to the trial court by “a timely

request”). We overrule Allegra’s first point of error.


       Failure to award attorney’s fees to Allegra

               In their fourth point of error, Allegra argues that the trial court abused its discretion

in not awarding attorney’s fees to Allegra for the successful prosecution of its implied warranty

claim. But Allegra did not submit a question to the jury conditioned on the issue of its implied


       3
           Prior to the district court’s entry of the final judgment in February 2005, Allegra filed a
motion for judgment notwithstanding the verdict or, in the alternative, a motion for new trial
asserting for the first time that Stripling-Blake was required to segregate their attorney’s fees. In
Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313-14 (Tex. 2006), the supreme court
clarified the exception for segregation of fees, but the complaining party in that case objected to the
failure to segregate fees “during and after trial.” Id. at 310.

                                                  11
warranty claim. Question 5 asked whether Stripling-Blake failed to comply with its agreement

with Allegra:


       Did Stripling-Blake fail to comply with its agreement with Allegra Management?
       Failure to comply by Stripling-Blake is excused if compliance is waived by Allegra
       Management.


The jury answered “No.” Only Question 13 related to attorney’s fees to be recovered by Allegra.

It asked:


       If you answered “yes” to Question 5, then answer the following question. Otherwise,
       do not answer the following question.

       What is a reasonable fee for the necessary services of Allegra Management’s
       attorneys in this case, stated in dollars and cents?


Following the court’s instructions, having answered “No” to Question 5, the jury left Question 13

unanswered.

                Allegra did not request an attorney’s fee question conditioned on the issue of implied

warranty in Questions 8 and 12 for which the jury found damages and awarded $3,500. Nor did

Allegra object to the submission of Questions 5, 8, 12, or 13. If a party does not object to an

erroneous conditional submission, the party waives the error. Wilgus v. Bond, 730 S.W.2d 670, 672

(Tex. 1987); Matthews v. Candlewood Builders, 685 S.W.2d 649, 650 (Tex. 1985).

                The jury simply followed its instructions. Because it did not answer “Yes” to

Question 5, the breach of contract question, it left Question 13 relating to attorney’s fees for breach

of contract blank. Question 12 addressed Allegra’s various theories of damages and was conditioned



                                                  12
to a “Yes” answer to Questions 5, 6, 7, 8, 9, 10, or 11. Recognizing that only Question 5 related to

contract damages for which it could recover attorney’s fees, at the charge conference, Allegra’s

counsel objected that Question 12 failed to condition an award on Question 5. He stated:


       Your Honor, I simply object to Question 12 because it leaves out Question 5 as a
       predicate and I believe we need to have contract damages as well as attorney fees for
       Question 5. Question 5 is the contract claim.


Question 13 was conditioned only on a “Yes” answer to Question 5. The trial court then asked

Allegra’s counsel if he had any other objections, to which he responded that he did not.

               Having failed (i) to request an attorney’s fee question predicated on breach of implied

warranty, and (ii) to object to the charge submitted, Allegra has waived any error. We overrule

Allegra’s fourth point of error.


Did the trial court abuse its discretion by allowing Mancias’s trial amendment as to damages and
attorney’s fees against Allegra?

               In its second and third points of error, Allegra urges that the trial court abused its

discretion in allowing Mancias’s oral trial amendment with regard to damages and attorney’s fees

as against Allegra and that the evidence is insufficient to support an award of attorney’s fees.

Allegra asserts that the trial court erred in granting Mancias’s oral trial amendment for a breach

of contract claim and for attorney’s fees against Allegra.

               A party’s unpleaded issue may be deemed tried by consent when evidence on the

issue is developed under circumstances indicating that both parties understood the issue was in

the case, and the other party fails to make an appropriate complaint. Tex. R. Civ. P. 67; Johnson



                                                 13
v. Structured Asset Servs., LLC, 148 S.W.3d 711, 719 (Tex. App.—Dallas 2004, no pet.); Frazier

v. Havens, 102 S.W.3d 406, 411 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Rule 67 of the

Texas Rules of Civil Procedure provides that when issues not raised by the pleadings are tried

by implied consent, they must be treated in all respects as if they had been raised in the pleadings.

Tex. R. Civ. P. 67; Johnson, 148 S.W.3d at 719; Gutierrez v. Gutierrez, 86 S.W.3d 721, 729

(Tex. App.—El Paso 2002, no pet.). To determine whether an issue was tried by consent, the

reviewing court must examine the record, not for evidence of the issue, but rather for evidence

of trial of the issue. Johnson, 148 S.W.3d at 719; Hoggett v. Brown, 971 S.W.2d 472, 496 n.4

(Tex. App.—Houston [14th Dist.] 1997, pet. denied).

               After Allegra filed its affirmative defense asserting an offset against Stripling-Blake

and its two employees, Stripling-Blake filed a third-party petition against Mancias. At the time of

trial, Mancias had asserted a contribution claim against Stripling-Blake for any damages for which

he “is judged liable in connection with the claims made by Allegra.” He asserted:


       [I]n the event that Mancias is determined to be liable to Allegra, then Mancias seeks
       contribution from [Stripling-Blake] with respect to all damages allegedly sustained
       by Allegra. Mancias therefore asserts a claim against Allegra seeking contribution
       for any damages for which Mancias is judged liable in connection with this action.


He also sought recovery of reasonable and necessary attorney’s fees from Stripling-Blake. Mancias

also filed a cross-claim against Allegra asserting that he “would show that it was the actions of

Allegra that resulted in such damages” and seeking damages from Allegra for any claims against

him by any party to the litigation. Mancias also sought contribution from Allegra with respect to any

damages sustained by Mancias and for which he is judged liable “in connection with this action.”

                                                 14
                In his opening statement, Allegra’s attorney told the jury that Mancias was the

person who painted the defective baseboard. Kleas testified that Mancias determined when the trim

would be installed and was responsible for the trim being stored in the garage:


                 The trim was ready to be installed in the second floor of the house. Mr.
        Mancias insisted that none of the trim be placed in the house, as a matter of fact, after
        he painted and primed - - primed and painted it, that he put it back into the garage
        because he wanted Ronnie [Stark] to finish the whole interior of the house. . . . So it
        was not only Mr. Mancias’ decision with Ron Stark to go over when this trim would
        be put in, but it certainly was put in by mid June. It was completed - - it takes about
        - - well, we had to sand it about four or five times to make it decent looking, but the
        trim was ultimately not proven to be decent looking. But we completed it sometime
        in the latter part of July.


Kleas testified that he instructed Mancias to continue installing the trim even though it was defective.

Although Kleas testified that he paid Mancias in full, he disputed that Mancias had completed the

work upon which they had agreed and complained that Mancias only applied single coats of primer

and paint. On cross-examination, Kleas acknowledged that a representative from the paint company

conducted an on-site inspection of Mancias’s work and advised Kleas that the paint had been applied

according to the company’s specifications. Kleas testified that his problems with Mancias remained

unresolved: “I have a house with one coat of paint on it about three-quarters of it. And I gave up

arguing over it.”

                At the close of Stripling-Blake’s case, Mancias’s attorney moved for a directed

verdict on the claim by Stripling-Blake against Mancias, which the trial court granted. After

Stripling-Blake, Allegra, and Alexander Moulding had rested, Mancias’s attorney called Mancias

to testify.



                                                   15
               Mancias testified how he came to work for Allegra and Kleas and that they agreed

upon the work to be done and its price, which was reflected in a written agreement. Mancias

testified that Kleas continued to pay him until Allegra ran out of money. At that point, there were

various delays in the project, and Mancias would drive by the site to see if there was work he

should do. Mancias testified that on one occasion, after the baseboard had been sanded and he

had applied “a good coat finish,” he returned to find the work had been sanded off. Mancias also

disputed Kleas’s testimony that the baseboard trim was protected in the garage by plastic and duct

tape sealing. He testified that Kleas’s testimony was incorrect: “They were exposed. They were

never duct taped. The only tape that Mr. Kleas probably saw was when I was priming and putting

a coat of paint was when I put in the garage.” When Kleas asked Mancias to repaint some walls,

Mancias declined because Allegra had failed to pay him for work done. Mancias agreed to return

to work “when you can afford me to come back.” Mancias testified that Allegra owed him a balance

of $3,740 for work done. Allegra’s attorney did not object to Mancias’s testimony regarding

moneys owned to him by Allegra and, on cross-examination, asked whether he had filed a lien on

the property or had sent a demand letter. Mancias testified that he had not.

               Mancias’s attorney then testified to preparing for trial and defense of the case against

his client and that reasonable and necessary attorney’s fees were $9,000. On cross-examination, he

explained further the amount of work he had done. The only objection to his testimony occurred

when he testified that he had approached attorneys in the case that morning to say that “I do not

believe there had been sufficient evidence presented by any party that created a fact issue as to

whether or not Ed Mancias was the producing cause of damages.”



                                                 16
                At the charge conference, Allegra’s attorney did not object to the submission of the

following questions:4


       Question 14
       Did Allegra Management fail to comply with its agreement with Edward Mancias?
       Answer “Yes” or “No.”5

       Question 15
       What sum of money, if any, if paid now in cash, would fairly and reasonably
       compensate Edward Mancias for his damages, if any, that resulted from such failure
       to comply?
       Answer in dollars and cents, if any.6

       Question 16
       What is a reasonable fee for the necessary services of Edward Mancias’ attorney in
       this case, stated in dollars and cents?
       a. For preparation and trial.
       b. For an appeal to the Court of Appeals
       c. For an appeal to the Supreme Court of Texas.7


Mancias’s attorney then moved for a trial amendment to “clarify” Mancias’s claim for the value of

goods and services rendered for which he had not been paid and for attorney’s fees to recover that

amount. The trial court granted the trial amendment over Allegra’s objection.

                A claim is tried by consent when there is an understanding by the parties that the issue

is in the lawsuit, and evidence is introduced at trial and not objected to by the other party. Frazier,



       4
          These were among the written jury questions submitted by Mancias to the trial court for
inclusion in the court’s charge.
       5
           The jury answered “Yes.”
       6
           The jury answered “$3,740.”
       7
           The jury answered: a. “$9,000”; b. “$7,500”; c. “$4,000.”

                                                  17
102 S.W.3d at 411. Mancias testified at length concerning the dispute between Kleas and himself

concerning work done and Allegra’s failure to pay for services rendered. Mancias’s attorney

likewise testified without objection regarding the attorney’s fees incurred to recover on Mancias’s

claim. Based on the record before us, we find ample evidence of trial of these issues. See Johnson,

148 S.W.3d at 719; Hoggett, 971 S.W.2d at 496 n.4. Because the subject of the trial amendment was

raised as an issue at trial, the record demonstrates the issues were tried by consent, and there was

sufficient evidence to support the claims, we overrule Allegra’s second and third issues.


Did the trial court err in rendering judgment in favor of Allegra on its warranty claim?

               In its only issue on appeal, Stripling-Blake argues that the trial court erred in

rendering judgment for Allegra in the amount of $3,500 because, as a matter of law, Stripling-Blake

disclaimed any implied warranty for merchantability and fitness for a particular purpose and the

questions relating to that issue were, therefore, immaterial. We construe Stripling-Blake’s argument

to be that the evidence is legally insufficient to support the jury’s finding that Allegra sustained

$3,500 in damages because such damages were barred by the disclaimer.

               A reviewing court must view the evidence in the light most favorable to the verdict,

indulging every reasonable inference that supports it, but the court may not disregard evidence that

allows only one inference. City of Keller, 168 S.W.3d at 822. “The final test for legal sufficiency

must always be whether the evidence at trial would enable reasonable and fair-minded people

to reach the verdict under review.” Id. at 827. We must credit favorable evidence if reasonable

jurors could, and disregard contrary evidence unless reasonable jurors could not. Id. A no-evidence

point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court


                                                  18
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 scintilla, or (d) the evidence

conclusively establishes the opposite of the vital fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d

742, 751 (Tex. 2003) (citation omitted).

                In its fourth amended counterclaim, Allegra alleged that Stripling-Blake breached

it warranties to Allegra, “including the implied warranties of merchantability and fitness for a

particular purpose,” that Stripling-Blake breached its warranty to replace and repair defective

products, and has “refused to pay the costs of removing the defective product, and then replacing and

installing replacement baseboard materials.” Citing its disclaimer of warranties in the account

agreement, Stripling-Blake urged that all warranties were disclaimed. Allegra responded that the

agreement failed to address the warranty of merchantability and only addressed fitness for a

particular purpose, that the disclaimer was not sufficiently conspicuous, and that, in any event,

Stripling-Blake agreed to replace any defective product and that they failed to do so.

                The questions relating to the warranty claim were Questions Nos. 8 and 12:


       Question 8
       Was the failure, if any, of Stripling-Blake to comply with a warranty a producing
       cause of damages to Allegra Management?
       “Failure to comply with a warranty” means either of the following:
       1. furnishing goods that, because of a lack of something necessary for adequacy,
       were not fit for the ordinary purposes for which such goods are used; or
       2. furnishing or selecting goods that were not suitable for a particular purpose if
       Stripling-Blake had reason to know the purpose and also had reason to know that
       Allegra Management was relying on Stripling-Blake’s skill and judgment to furnish
       or select suitable goods.8


       8
           The jury answered the question affirmatively.

                                                 19
Question No. 12 was conditioned an answer on a “yes” answer to Questions 5, 6, 7, 8, 9, 10, or 11.9

It asked:


       What sum of money, if any, if paid now in cash, would fairly and reasonably
       compensate Allegra Management for its damages, if any, that resulted from such
       conduct?


Only question 8 was answered affirmatively. See note 9 supra. The jury then answered $3,500 in

response to Question No. 12.

               Although Allegra sought an offset of $15,000, the only testimony related to this claim

concerned Allegra’s efforts to replace the defective product and that the cost of correcting it with

additional sanding cost between $3,000 and $4,000 “give or take.” Kleas testified that he discussed

the problem with the two employees of Stripling-Blake and tried to resolve the problem multiple

times. Stripling-Blake inspected the wood and attributed any problem to the manner of storage

and the delay in the product’s installation. The cause of the problem with moisture in the wood

was disputed, with Kleas blaming Stripling-Blake on the quality of the wood and Stripling-Blake

blaming Kleas for failure to properly store the wood before it was installed. The record reflects




       9
         Question 5 asked whether Stripling-Blake failed to comply with its agreement with Allegra.
The jury answered, “No.” Question 6 was conditioned on an affirmative answer to Question 5
and asked: “Was Stripling-Blake’s failure to comply with the agreement a producing cause of
damages to Allegra Managment?” The jury left this question unanswered. Question 7 asked
whether Stripling-Blake made a negligent misrepresentation on which Allegra justifiably relied. The
jury answered, “No.” Question 9 asked whether Stripling-Blake engaged in any false, misleading,
or deceptive act or practice on which Allegra relied to its detriment that was a producing cause of
damages to Allegra. The jury answered, “No.” Questions 10 and 11 asked whether Victor Mendoza,
Stripling-Blake’s employee, or Alexander Moulding engaged in acts that caused damage to Allegra.
The jury answered “No” to both questions.

                                                20
Allegra continued to install the product but withheld payment to Stripling-Blake until the dispute

could be resolved.

                An implied warranty is a representation or promise by the seller as to the quality or

suitability of the item sold that is legally inferred or presumed and imported into a contract in view

of all facts and circumstances attending the transaction, including the nature of the property, the

terms of the agreement, and trade usages. LaBella v. Charlie Thomas, Inc., 942 S.W.2d 127, 131

(Tex. App.—Amarillo 1997, pet. denied). Section 2.314 of the business and commerce code, which

provides for an implied warranty of merchantability, specifies that a warranty that goods shall be

merchantable is implied in a contract for the sale of goods if the seller is a merchant with respect to

goods of that kind. Tex. Bus. & Com. Code Ann. § 2.314 (West 1994). To exclude or modify the

implied warranty of merchantability or any part of it in the sale of goods, the language must mention

merchantability. Id. § 2.316 (West 1994). The account agreement did not mention merchantability,

but did provide for replacement of defective goods. Viewed in the light most favorable to the

verdict, the evidence showed that Allegra incurred damages in its attempt to repair and/or replace

some of the goods. The testimony was disputed as to the amount and extent of damages, and it was

for the jury to resolve the credibility of the witnesses.

                The jury found that Stripling-Blake failed to comply with “a warranty” and awarded

damages in the amount of $3,500, which was within the range of the testimony regarding the amount

of damages incurred. Bowen v. Robinson, 227 S.W.3d 86, 98 (Tex. App.—Houston [1st Dist.] 2006,

pet. denied). On this record, we conclude the trial court did not err in entering judgment for $3,500

on Allegra’s breach of warranty claim. We overrule Stripling-Blake’s issue on appeal.



                                                  21
                                      CONCLUSION

               Having overruled both parties’ issues on appeal, we affirm the judgment of the

trial court.




                                           __________________________________________

                                           W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Affirmed

Filed: December 19, 2008




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