Affirmed and Opinion Filed October 14, 2014




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-12-00941-CV

                           CLASSIC SUPEROOF LLC, Appellant
                                         V.
                               DONNA K. BEAN, Appellee

                       On Appeal from the County Court at Law No. 3
                                   Collin County, Texas
                            Trial Court Cause No. 3-1546-2010

                             MEMORANDUM OPINION
                        Before Justices Bridges, Francis, and Lang-Miers
                                   Opinion by Justice Bridges
       This is an appeal from a bench trial in which the trial court found in favor of appellee

Donna K. Bean on her contract and DTPA claims against appellant Classic Superoof LLC.

Classic raises seven issues on appeal: (1) the evidence is legally and factually insufficient to

support the trial court’s findings of fact and conclusions of law to support liability under Bean’s

contract and DTPA causes of action; (2) the trial court abused its discretion by admitting a report

over Classic’s hearsay objection because the report was made in anticipation of litigation; (3) if

the trial court’s finding of liability hinged on incomplete flashing work, then the evidence is

legally and factually insufficient to support damages; (4) the trial court erred by awarding

$29,000 in damages because Bean failed to show the cost to repair the roof was reasonable and

necessary; (5) the trial court erred by excluding the testimony of Classic’s expert; (6) the trial
court erred by awarding Bean $100,000 in attorneys’ fees because she failed to establish

damages; and (7) the trial court erred in awarding attorneys’ fees because Bean failed to present

sufficient evidence to support the award. We affirm the trial court’s judgment.

                                         Background

       During the process of building her home, Bean searched the internet for information

about metal roofs. Metal Roof Alliance’s website provided her with the ability to reach out to

metal roof contractors in her area. Stanley Keith Lyles, the president of Classic, received an

email with Bean’s information and responded via email to her request. He provided basic

information about Classic’s metal roof services. She also visited Classic’s website, at Lyles’s

suggestion, and looked at previous roofs installed by Classic. She thought the work “was

beautiful.” Based on language from the website that Classic’s products “are more durable, more

energy efficient, longer lasting, and more beautiful,” she thought “[Classic] would do a very

good job.”

       After Lyles contacted Bean, they talked several times on the phone before setting up a

meeting. When he came to her home, they discussed several roofing material options and color

choices. She asked about a white roof, and Lyles told her a white roof would show dirt sooner

than other types of colors. Lyle also explained a painted finish would cost more than an

unpainted finish.

       Lyles brought material samples to show Bean. He described galvalume, which is a

coating that protects steel from the elements, and she was impressed with its sturdiness. She

liked the stainless look but was concerned it might look like barn metal after a period of time,




                                              –2–
“and that’s why I chose the galvalume plus.”1 She believed that based on their conversation,

Lyles understood the look of the roof was important to her.

          The parties entered into a $40,000 contract on December 21, 2009 for the installation of a

galvalume plus roof. Bean wrote a check for $9,000. She later wrote another check for $20,000.

          Roof installation began in early January. Luis Hevert and a crew of six to eight people

installed the roof. The roof installation took longer than anticipated because of rain. The rain

also caused mud accumulation around the home and despite the crew’s best efforts, some mud

prints were left on the roof.

          After installation, Bean immediately noticed a problem with the roof’s appearance. Lyles

said it was the nature of a metal roof and “it,” which he thought was mud, would wash off.

Hevert came out twice in February and March to try and clean the mud, but to no avail.

          Lyles later referred to the markings as handling tracks left by handprints or footprints

during installation. The appearance of the markings varied depending on lighting conditions.

Lyles told Bean these “stains” would become less visible over time, but he also testified, “There

is probably a few more” scuff marks than he would normally expect on this type of roof.

          Bean did not sign the certificate of completion after installation of the roof and objected

immediately to the roof as “unacceptable.” Lyles admitted he did not ask her to sign the

certificate of completion because he knew there was a problem with the roof. Bean said Lyles

offered to replace her roof in March. He repeatedly admitted something was wrong with the roof

and said he had seen thousands of roofs but never seen one “do this.”

          When cleaning did not remove the stains, Lyles told Bean perhaps something was wrong

with the acrylic coating. Lyles suspected it might be a manufacturing defect so he contacted

     1
       Galvalume was described as “very oily” and extremely sensitive to stains when touched or walked on. Acrylume, a plastic coating, was
developed to serve as a coating for galvalume to help cut down on some of the abrasions and staining that could occur. Galvalume with an
acrylume coating is referred to as galvalume plus.



                                                                  –3–
Sheffield Metal International, the supplier that provided Classic with the material. Sheffield

Metal, in turn, contacted U.S. Steel Corporation, the manufacturer of the galvalume plus coating

from which the roofing panels were made.

       In May of 2010, approximately four months after installation, David Head, a

metallurgical engineer with U.S. Steel, went to Bean’s home to inspect the roof. Mike Blake

from Sheffield Metals was also present. Head took pictures, inspected the roof from a ladder,

and requested samples from areas that were “representative of the concern that we observed.”

       During Head’s visual inspection, he observed what appeared to be scuffs or scratches in

random locations across the roof, specifically near seam edges and the “roof cap.” The scuffs

and scratches became more apparent as lighting conditions changed. His initial impression of

the roof was that it did not look the way it should and further evaluation through sampling was

necessary. He estimated that seventy-five percent of the roof’s panels were effected. Head

testified handprints and footprints are different from scuffs on a roof’s surface. A handprint or

footprint on bare galvalume that has been “oiled” results in a stain on the roof’s surface, whereas

a scuff is a mechanical deformation of the surface.

       After testing the samples, U.S. Steel produced a report stating the galvalume coating was

mechanically deformed and damaged in the scuff mark areas. However, the testing revealed the

damage had not penetrated through the galvalume to the steel substrate, which would result in

almost immediate rusting. Despite the absence of rust, Head did not believe the damage was

purely cosmetic. Rather, he believed “there is a possibility that the long-term service life of this

galvalume was minimized or potentially minimized by the damage that had occurred.” Simply

because rust had not occurred yet, did not mean the roof was not damaged.

       Head admitted his primary purpose of evaluating the roof was to determine whether a

problem existed with U.S. Steel’s product (he concluded there was no manufacturing defect), but

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that was not his only purpose. His goal was to determine the problem, if any, and find a solution.

His ultimate opinion was that the galvalume coating on the roof was damaged during installation,

the damage was beyond cosmetic, and if rust appeared in the damaged areas, US Steel would

void its warranty.

       Bean sent Classic a demand letter on May 21, 2010. She gave Classic until May 31, 2010

to respond. After receiving Bean’s demand letter, Lyles offered to remove and replace those

portions of the roof that Bean thought were stained. He also offered to pay her $1,000 for

attorneys’ fees and expenses. Bean rejected the offer. He then offered to walk away and forgive

the $11,000 she owed under the contract, but she also rejected this offer. She sued on June 11,

2010 for breach of contract and various DTPA violations.

       During trial, Bean testified Classic maintained the problematic appearance of the roof

was a manufacturing defect “quite a long time . . . up until the time that they decided to say there

is just nothing wrong with the roof at all, no damage.” She did not feel the contract was honored

because Classic did not deliver what they promised. While she acknowledged Classic provided a

“good sturdy roof,” she argued “it’s not more beautiful” or what the parties agreed to in the

contract.

       At the conclusion of the bench trial, the trial court awarded $29,000 in damages for

breach of contract and DTPA violations and $100,000 in attorneys’ fees. The trial court entered

findings of facts and conclusions of law. Classic timely appealed the final judgment.

                                       Breach of Contract

       In its first issue, Classic argues the evidence is legally and factually insufficient to

support the trial court’s conclusion that it breached its contract with Bean based on the aesthetic

appearance of the roof or because the roof was damaged. Bean argues the aesthetic appearance




                                                –5–
of the roof was an implied material term of the contract and even if it was not, the evidence

supports the trial court’s conclusion the roof was damaged.

       Findings of fact in a nonjury trial have the same force and dignity as a jury’s verdict and

may be reviewed for legal and factual sufficiency under the same standards. Ortiz v. Jones, 917

S.W.2d 770, 772 (Tex. 1996). In evaluating the legal sufficiency of the evidence to support an

adverse finding on an issue the challenging party did not have the burden of proof, we must

credit favorable evidence if reasonable jurors could and disregard contrary evidence unless

reasonable jurors could not. Shaw v. Cnty. of Dallas, 251 S.W.3d 165, 169 (Tex. App.—Dallas

2008, pet. denied). A legal sufficiency challenge will be sustained when (1) there is a complete

absence of evidence of a vital fact, (2) the court is barred by rules of law or of 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 scintilla, or (4) the evidence conclusively establishes the opposite of

the vital fact. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Anything

more than a scintilla of evidence is legally sufficient to support a challenged finding. Shaw, 251

S.W.3d at 169

       When a party is attacking the factual sufficiency of an adverse finding on an issue for

which it did not have the burden of proof, the attacking party must demonstrate that there is

insufficient evidence to support the adverse finding. Dallas Cnty. v. Holmes, 62 S.W.3d 326,

329 (Tex. App.—Dallas 2001, no pet.). In reviewing a factual sufficiency issue, we consider all

the evidence supporting and contradicting the finding. Id. We will set aside a finding for lack of

factual sufficiency only if it is so contrary to the overwhelming weight of the evidence to be

clearly wrong and unjust. Shaw, 251 S.W.3d at 169. We review a trial court’s legal conclusions

de novo. Id. We evaluate those conclusions independently to determine whether the trial court

correctly drew the conclusion from the fact. Id.

                                                 –6–
       Additionally, in a nonjury trial, the trial court is the sole judge of the credibility of the

witnesses and the testimony’s weight. Id. The trial court may believe one witness and disbelieve

others and may resolve inconsistencies in a witness’s testimony. McGalliard v. Kuhlmann, 722

S.W.2d 694, 697 (Tex. 1986).

       The elements of a contract are an offer, an acceptance, a meeting of the minds, each

party’s consent to the terms, and an execution and delivery of the contract with the intent it be

mutual and binding. Plotkin v. Joekel, 304 S.W.3d 455, 476 (Tex. App.—Houston [1st Dist.]

2009, pet. denied). Classic argues if Bean’s breach of contract claim was based upon the

installation of a defective roofing system, then Bean failed to produce more than a scintilla of

evidence because any future roof damage was nothing more than a “theoretical possibility.”

Classic focuses primarily on testimony from Head, the metallurgical engineer with U.S. Steel.

       When Head visually examined the roof, he estimated seventy-five percent of the panels

were effected by markings, and he considered this “significant damage in most of the roof area.”

The tested roof samples revealed that the scuff marks were caused by mechanical abrasions

“possibly introduced during the roll forming or the installation process.” Nothing in the report

stated that the mechanical abrasions would not affect the performance of the roof panels. He

further stated cross sections of a sample showed the galvalume coating was mechanically

deformed and damaged in the scuff mark area. In his expert opinion, the damage to Bean’s roof

was not purely cosmetic.

       While Classic argues any damage to the roof is speculative because the evidence shows

the roof had not started to rust, Head specifically testified the absence of rust did not mean the

roof was not damaged. Further, he explained the propensity for the damaged areas to wear down

quicker was greater than those areas undamaged. There was a significant difference between the

galvalume coating in the normal area and the galvalume coating in the scuffed area. He could

                                               –7–
not preclude the possibility that the damage to the galvalume coating could extend to the steel

substrate and cause rust. If rust occurred in those areas, the warranty provided by U.S. Steel

would be voided.

       While we agree with Classic that uncertainty as to the fact of damages is fatal to recovery

in a breach of contract claim, as detailed above, we do not agree the evidence presented at trial is

uncertain or purely conjectural. See, e.g., McKnight v. Hill & Hill Exterminators, Inc., 689

S.W.2d 206, 207 (Tex. 1985) (noting uncertainty as to the fact of legal damages is fatal to

recovery in a breach of contract claim). Classic focuses only on the fact the roof had not started

to rust. However, just because the roof had not yet become damaged enough to void U.S. Steel’s

warranty does not negate the fact Head testified, based on the report produced after testing the

roof panels, that Bean’s roof was in fact damaged. Further, Head made it clear it was more

likely the damaged areas would wear down quicker, causing more damage. As Bean argued,

“The fact that the roof has not yet rusted does not alter the fact that the Plaintiff did not receive

the roof the Defendant contracted to provide.”

       Accordingly, we conclude more than a scintilla of evidence exists to support the trial

court’s finding the roof was damaged and to support its conclusion that the “roof as installed did

not comply with what the Plaintiff contracted to receive and the roof as installed by Classic

Superoof was in breach of the contract between itself and Ms. Bean.” We further conclude the

evidence supporting the trial court’s findings and conclusions are not so contrary to the

overwhelming weight of the evidence to be clearly wrong and unjust. Having concluded the

evidence supports the breach of contract claim because the roof was damaged, we need not

address Classic’s argument that the trial court erred by concluding it breached an implied

aesthetics clause that was not a part of the contract. Classic’s first issue is overruled.




                                                 –8–
       Having determined the trial court’s finding of liability was based on Classic’s breach of

contract, we need not consider Classic’s third issue in which it alternatively argues the evidence

is legally and factually insufficient to support a finding of liability based on incomplete flashing

work. TEX. R. APP. P. 47.1. Moreover, the trial court did not make any findings or conclusions

regarding flashing work. Thus, Classic’s third issue is overruled.

                                 Admission of U.S. Steel Report

       In its second issue, Classic argues the trial court abused its discretion by admitting U.S.

Steel’s report because it was made in anticipation of litigation. Bean responds Classic failed to

object; therefore, the issue is waived. Alternatively, Bean contends the report was not made in

anticipation of litigation, but rather falls within the exception to the hearsay rule involving

records of regularly conducted business activity.

       Bean’s assertion that the record is “void of any objection” is incorrect. While Classic did

not specifically use the phrase “created in anticipation of litigation” when objecting to the

admission of the report, it did argue the report was based on bias and lacked trustworthiness,

which violated Texas Rule of Evidence 803(6). See TEX. R. EVID. 803(6) (hearsay exception for

records conducted in regular course of business).         Classic further argued the U.S. Steel

employees who conducted the tests on the roof samples and wrote the report “had every reason

to conduct their tests in such a way as to exonerate U.S. Steel Corporation and implicate another.

. . .” Thus, Classic’s argument was specific enough to enable the trial court to understand the

precise nature of the error alleged and was presented at such a time as to enable the trial court the

opportunity to cure the alleged error. TEX. R. APP. P. 33.1; Lake v. Premier Transp., 246 S.W.3d

167, 174 (Tex. App.—Tyler 2007, no pet.). As such, Classic preserved its complaint for review.

We shall now address the merits of Classic’s argument to determine if the trial court abused its

discretion by admitting the report. See Dallas Area Rapid Transit v. Morris, 434 S.W.3d 752,


                                                –9–
763 (Tex. App.—Dallas 2014, pet. filed) (admission of evidence reviewed under an abuse of

discretion standard).

       Rule 803(6) permits admission of hearsay that is a record of a regularly conducted

business activity. TEX. R. EVID. 803(6). A proper predicate for admission under this rule

requires “a showing that the document was made in the regular course of business, at or near the

time of the acts or conditions sought to be shown, by employees or agents customarily making

such records or customarily transmitting information to be placed in the records and who had

personal knowledge of the acts or conditions recorded.” Thirteen Thousand Six Hundred Five

Dollars in U.S. Currency v. State, No. 05-98-00072-CV, 2000 WL 567053, at *4 (Tex. App.—

Dallas May 4, 2000, no pet.) (not designated for publication). The rule, however, does not apply

if a record was prepared in anticipation of litigation. See Ortega v. Cach, LLC, 396 S.W.3d 622,

630–31 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

       Classic argues U.S. Steel removed panels from Bean’s roof for testing only after it knew

Bean was unhappy and after Classic had contacted Sheffield Metals and inquired whether

Classic might have to make a claim against U.S. Steel’s insurance company. Based on the

events leading up to the creation of the report, Classic asserts U.S. Steel knew or should have

known the controversy “might blow up into a lawsuit.”

       The record is clear Bean did not request or hire anyone from U.S. Steel to take samples

from her roof, test them, and then create a report. According to Head, someone from Sheffield

Metals contacted him. Head described his job responsibilities as providing technical service to

customers in the field in the use and manufacture of the steel they purchase, calling on customers

in various markets for building applications, and helping customers investigate any problems

with the material or with the process in utilizing the purchased material.




                                               –10–
         He explained that when he visits a site, he tries not to prejudge but rather gathers

information, makes observations, and makes determinations independently on case conditions.

His objective is to determine if a problem exists with the steel that was supplied and what steps

may be taken to resolve a complaint. When asked if it was his goal to exonerate any party, he

answered, “No, it was not. It was to investigate the cause of the concern.” His objective was to

be straight forward and honest in his investigation to serve the customers, the installers, and U.S.

Steel.

         While Classic surmises that U.S. Steel was a stakeholder in the litigation and

“incentivized to make self-serving statements in the report,” at the time Head visited Bean’s

home in May of 2010, there was no lawsuit on file. All Head knew was that Bean was upset

with the installation of her roof, and he testified that his goal was to determine the cause and find

a solution.

         Based on the record before us, we conclude the trial court did not abuse its discretion by

admitting the report into evidence as an exception to the hearsay rule because it was not made in

anticipation of litigation. Accordingly, we overrule Classic’s second issue.

                                             Damages

         In its fourth issue, Classic argues the trial court erred by awarding $29,000 in remedial

damages because Bean failed to show the cost to repair the roof was reasonable and necessary.

Bean responds the trial court properly awarded her actual damages under the contract. We agree

with Bean.

         The universal rule for measuring damages for a breach of a contract is just compensation

for the loss or damage actually sustained. Qaddura v. Indo-Eurpoean Foods, Inc., 141 S.W.3d

882, 888 (Tex. App.—Dallas 2004, pet. denied). Thus, the goal is to restore the non-breaching




                                               –11–
party to the same economic position in which it would have been had the contract not been

breached. Id.

           We first note Classic’s contention that Bean recovered damages on a theory different than

that prayed for in her last live pleading is without merit. While we agree Bean’s last live

pleading requested “the cost of replacing Plaintiff’s roof,” she also requested “actual damages for

breach of contract in the amount of $29,000.”

           Next, Classic challenges the damage award under the theory of what a party must prove

to recover remedial damages under a construction contract.2 It argues Bean failed to present any

evidence showing the reasonable and necessary cost to repair or replace her roof. We agree that

in order to recover remedial damages for a breach of contract, a party must present evidence to

support the reasonableness of the remedial damages. See McGinty v. Hennen, 372 S.W.3d 625,

627 (Tex. 2012). We likewise agree Bean did not present any such evidence. Accordingly, we

conclude the trial court did not base its award on remedial damages; therefore, we must

determine if the evidence is sufficient to support the trial court’s actual damages award.

           The record is clear the parties entered into a contract in which Bean agreed to pay

$40,000 to Classic for the installation of a roof. Bean paid $29,000 towards the roof; however,

she refused to pay the remaining amount because she was unhappy with the appearance of the

roof and the roof was damaged. Having previously concluded Classic breached the contract,

Bean was entitled to her actual damages in the amount of $29,000, which was the amount that

would return her to the same economic position in which she would have been had Classic not

breached the contract. See Qaddura v, 141 S.W.3d at 888 (discussing compensation for the loss




     2
        In its reply brief, it raises new arguments regarding reliance damages; however, we will not consider arguments raised for the first time in
a reply brief. Brown, 326 S.W.3d at 654 n.2.



                                                                      –12–
actually sustained, which includes restoring the non-breaching party to the same economic

position in which it would have been had the contract not been breached).

           In reaching this conclusion, we are mindful of the two measures of damages generally

used for recovery in breach of construction contract cases: remedial damages and difference-in-

value damages. See McGinty, 372 S.W.3d at 627. Nevertheless, the proper measure of damages

must also be determined by the facts of each individual case.                                              See, e.g., Westminster

Falcon/Trinity L.L.P. v. Shin, No. 07-11-0033-CV, 2012 WL 5231851, at *2 n.3 (Tex. App.—

Amarillo Oct. 23, 2012, no pet.) (mem. op.) (concluding remedial and difference-in-value

damage theories did not apply in construction law case when party tried case under a benefit of

the bargain damage theory). Bean “was willing to accept returning to the economic position she

was in prior to the Defendant’s conduct, which was realized with an award of the sums she paid

for the roof.” Thus, under the facts of this case, we conclude the evidence is sufficient to support

the trial court’s actual damage award of $29,000. Classic’s fourth issue is overruled.3

                                               Exclusion of Expert Testimony

           In its fifth issue, Classic asserts the trial court abused its discretion by excluding Bill

Williams, an expert on residential real estate sales. Bean responds the trial court properly

excluded Williams because his testimony was irrelevant. We agree with Bean.

           “If scientific, technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education may testify thereto in the form of an opinion

or otherwise.” TEX. R. EVID. 702. We review the trial court’s decision to admit or exclude

expert testimony for an abuse of discretion. Wyndham Int’l, Inc. v. Ace Am. Ins. Co., 186


     3
        Having concluded Bean established her breach of contract claim under issue one and her contract claim was supported by sufficient
evidence of damages under issue four, we need not address Classic’s arguments regarding whether the evidence is sufficient to support the trial
court’s findings and conclusions regarding DTPA violations. TEX. R. APP. P. 47.1.



                                                                   –13–
S.W.3d 682, 685 (Tex. App.—Dallas 2006, no pet.). A trial court abuses its discretion when its

decision is arbitrary or unreasonable, or it acts without reference to any guiding rules or

principles. Id.

       Here, Classic argued the testimony of Williams was relevant because he could provide

evidence regarding the diminution in value of Bean’s home resulting from the alleged defective

roof. However, as Bean correctly argued, diminution in value of her home was not a proper

measure of calculating damages under these facts. Bean’s damages arose from the failure of

Classic to install the roof agreed upon; not any devaluation of her property based on the roof.

Thus, any testimony he might have provided would not have assisted the trier of fact to

understand or determine any appropriate measure of damages. Because Williams’s testimony

was not relevant, the trial court did not abuse its discretion by excluding him as an expert. See

Fleming v. Kinney, 395 S.W.3d 917, 926 (Tex. App.—Houston [14th Dist.] 2013, no pet.)

(stating an expert’s opinions must be relevant to the issues in the case and based upon a reliable

foundation to be admissible under rule 702). We overrule Classic’s fifth issue.

                                        Attorneys’ Fees

       In issues six and seven, Classic challenges the trial court’s award of $100,000 in

attorneys’ fees because Bean failed to establish her damages and failed to present sufficient

evidence to support the award. Bean responds she proved contract damages, which entitled her

to recovery of her attorneys’ fees, and the award was supported by sufficient evidence.

       A trial court’s decision to award attorneys’ fees is reviewed for an abuse of discretion,

and the amount awarded is reviewed under a legal sufficiency standard. Aaron Rents, Inc. v.

Travis Cent. Appraisal Dist., 212 S.W.3d 665, 671 (Tex. App.—Austin 2006, no pet.).

       To recover attorneys’ fees under section 38.001 of the Texas Civil Practice and Remedies

Code, a plaintiff must (1) prevail on a cause of action for which attorneys’ fees are recoverable


                                              –14–
and (2) recover damages. Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d

821, 846 (Tex. App.—Dallas 2014, no pet.). Section 38.001(8) allows recovery of attorneys’

fees from an individual or corporation if the plaintiff prevails on a claim for breach of contract.

TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8) (West 2008); Woodhaven Partners, Ltd., 422

S.W.3d at 846.

         We have previously determined the evidence supports Bean’s breach of contact claim

against Classic and the trial court’s damage award. Accordingly, the trial court did not err in

awarding attorneys’ fees. Classic’s sixth issue is overruled.

         We now consider whether Bean presented sufficient evidence to support the $100,000

award.     Texas law does not require detailed billing or other documentary evidence as a

prerequisite to awarding attorneys’ fees. Woodhaven Partners, Ltd., 422 S.W.3d at 846. “It has

consistently been held that an attorney’s testimony about his experience, the total amount of fees,

and the reasonableness of the fees charged is sufficient to support an award.” In re A.B.P., 291

S.W.3d 91, 99 (Tex. App.—Dallas 2009, pet. denied).

         Bean’s attorney testified to his experience, the number of hours he spent on the case, and

his $300 an hour fee. He explained his fee was reasonable based on his years of experience, and

his rate was reasonable compared to other attorneys in Collin County.          This testimony was

sufficient to support the attorneys’ fee award. Thus, the trial court did not abuse its discretion by

awarding $100,000 in attorneys’ fees.

         In reaching this conclusion, we are unpersuaded by Classic’s argument that Bean was

required to segregate the amount of fees incurred in prosecuting her claims against Classic and

those incurred in defending against Classic’s claims. A recognized exception to the duty to

segregate arises when the causes of action involved in the suit are dependent upon the same set




                                               –15–
of facts or circumstances and are intertwined to the point of being inseparable. Tony Gullo

Motors I, L.P. v. Chapa, 212 S.W.3d 299, 312 (Tex. 2006).

       During cross-examination, Bean’s counsel testified the defense of the case “melded into

the prosecution of it.” Moreover, when Classic’s attorney testified in support of recovering his

own fees for defending against Bean’s case and prosecuting Classic’s counterclaims, he stated,

“Those two matters are inextricably intertwined, and that any service that might have been

provided in connection with one also related to the other.” Thus, both parties acknowledged that

prosecuting and defending their claims involved the same facts and were intertwined. Classic’s

seventh issue is overruled.

                                          Conclusion

       Having overruled all of Classic’s arguments, we affirm the trial court’s judgment.



       120941F.P05

                                                  /David L. Bridges/
                                                  DAVID L. BRIDGES
                                                  JUSTICE




                                             –16–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

CLASSIC SUPEROOF LLC, Appellant                      On Appeal from the County Court at Law
                                                     No. 3, Collin County, Texas
No. 05-12-00941-CV         V.                        Trial Court Cause No. 3-1546-2010.
                                                     Opinion delivered by Justice Bridges.
DONNA K. BEAN, Appellee                              Justices Francis and Lang-Miers
                                                     participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee Donna K. Bean recover her costs of this appeal from
appellant CLASSIC SUPEROOF LLC .


Judgment entered October 14, 2014




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