Affirmed and Opinion filed August 29, 2019.




                                             In The

                           Fourteenth Court of Appeals

                                     NO. 14-17-01010-CV

                   SCHEAR HAMPTON DRYWALL, LLC, Appellant
                                               V.
                       FOUNDERS COMMERCIAL, LTD, Appellee

                           On Appeal from the 61st District Court
                                   Harris County, Texas
                             Trial Court Cause No. 2015-22140

                                           OPINION

          This dispute involves the foreclosure of a mechanic’s lien.1 Schear Hampton
Drywall, LLC sued to foreclose on its lien against Founders Commercial Ltd. and
challenges in three issues the trial court’s reduction of the amount of Schear
Hampton’s lien and failure to award attorney’s fees to Schear Hampton. We
affirm.

          1
              See Tex. Prop. Code §§ 53.001–.287 (“Mechanic’s, Contractor’s, or Materialman’s
Lien”).
                                   Background

      Founders entered into a general contract with Construction Supervisors, Inc.,
for the construction of a senior living residential project in Houston, Texas known
as “The Abbey.” Construction Supervisors entered a subcontract with Target
Masonry to complete brick and stucco work on The Abbey. Target Masonry
subsequently walked off the job. Construction Supervisors then hired Schear
Hampton to complete the stucco work. The subcontract between Construction
Supervisors and Schear Hampton called for Schear Hampton to “[f]urnish and
install [s]tucco in compliance with plans and specifications for a complete turnkey
job” for the sum of $235,000. According to Schear Hampton, the contract price
was increased by $155,967 pursuant to change orders approved by Construction
Supervisors.

      Midway into construction on The Abbey, Construction Supervisors notified
Founders that it could not comply with the general contract because of financial
problems. Founders agreed to pay the subcontractors directly and let Construction
Supervisors manage the project.

      Schear Hampton served Founders with a “Notice to Owner and Prime
Contractor of Unpaid Claim for Materials and/or Labor Furnished.” In the notice,
Schear Hampton claimed that under its subcontract with Construction Supervisors,
there was an unpaid balance of $152,173.60 for “materials and/or labor during the
months of . . . October [and] September 2014.” Schear Hampton described its
services as “[s]tucco-labor and material.” Schear Hampton later filed an “Amended
Affidavit for Mechanic’s and Materialman’s Lien” in the amount of $152,173.60
and then filed this lawsuit against Founders and Construction Supervisors, seeking
foreclosure of the lien.

      Founders answered and asserted that Schear Hampton’s lien claim should be
                                         2
offset by “damages caused by Schear [Hampton’s] breach of its subcontract with
Construction Supervisors,” “the cost to correct errors and omissions by Schear
[Hampton] in the performance of its subcontract,” and “the amount necessary to
complete the work Schear [Hampton] agreed to perform in its subcontract.”
Founders filed a counterclaim for negligence and breach of contract in connection
with Schear Hampton’s performance under the subcontract. Founders also sought a
declaration that Schear Hampton “has been paid the full amount to which it is
entitled for its services rendered and materials supplied.”

      After a bench trial, the trial court rendered judgment that Schear Hampton’s
lien was partially valid “in the amount of $36,678.32” and that Founders was
entitled to an offset for $15,000 in damages on its counterclaim. The trial court
awarded Schear Hampton damages of $21,678.32 against Founders and awarded
Founders that amount in a default judgment against Construction Supervisors.2 The
trial court declared that the lien is “null and void and of no force and effect . . . to
the extent it exceeds the amount of $21,678.32.” The trial court also ordered that if
the judgment for Schear Hampton was not “paid when final,” then Schear
Hampton could “conduct a foreclosure sale in compliance with the provisions of
the Texas Property Code, with respect to the real property identified” in the lien.

                                         Discussion

      Schear Hampton challenges the judgment in three issues, contending (1) the
trial court’s reduction of the lien and offset for Founders’ damages are not


      2
          See Tex. Prop. Code § 53.153(b):
      If the suit results in judgment on the lien against the owner or the owner’s
      property, the owner is entitled to deduct the amount of the judgment and costs
      from any amount due the original contractor. If the owner has settled with the
      original contractor in full, the owner is entitled to recover from the original
      contractor any amount paid for which the original contractor was originally liable.

                                              3
supported by legally and factually sufficient evidence; (2) the trial court erred in
denying Schear Hampton’s request for attorney’s fees; and (3) the trial court failed
to order a foreclosure in compliance with the Property Code.

      I.     Is the judgment supported by legally and factually sufficient
             evidence?
      Schear Hampton in its second issue challenges the sufficiency of the
evidence in support of the trial court’s findings that Schear Hampton was owed
less than the amount alleged in its lien and that the lien amount should be offset by
the damages awarded to Founders.

      We review the trial court’s decision for legal and factual sufficiency of the
evidence using the same standards applied in reviewing the evidence supporting a
jury’s finding. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). We review
the evidence in the light most favorable to the challenged finding and indulge
every reasonable inference that would support it. City of Keller v. Wilson, 168
S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a reasonable
factfinder could and disregard contrary evidence unless a reasonable factfinder
could not. Id. at 827.

      We sustain a legal sufficiency or “no evidence” challenge only when (1) the
record discloses 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 mere scintilla; or (4) the evidence establishes conclusively the
opposite of the vital fact. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.
2003); Vast Constr., LLC v. CTC Contractors, LLC, 526 S.W.3d 709, 719 (Tex.
App.—Houston [14th Dist.] 2017, no pet.). A party attacking the legal sufficiency
of an adverse finding on an issue on which it had the burden of proof must show

                                         4
that the evidence conclusively establishes all vital facts in support of the issue.
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). When a party
challenges the legal sufficiency of the evidence on a finding on which it did not
bear the burden of proof, the party must show that no evidence supports the
finding. Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 215 (Tex.
2011); Sloane v. Goldberg B’Nai B’Rith Towers, No. 14-17-00557-CV, 2019 WL
2000484, at *9 (Tex. App.—Houston [14th Dist.] May 7, 2019, no pet. h.).

      In reviewing factual sufficiency, we examine the entire record, considering
both the evidence in favor of and contrary to the challenged findings. Mar.
Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998); 2900 Smith, Ltd. v.
Constellation NewEnergy, Inc., 301 S.W.3d 741, 746 (Tex. App.—Houston [14th
Dist.] 2009, no pet.). When a party attacks the factual sufficiency of an adverse
finding on which it bore the burden of proof, it must establish that the finding is
against the great weight and preponderance of the evidence. Dow Chem. Co., 46
S.W.3d at 242; Burton v. Prince, 577 S.W.3d 280, 285 (Tex. App.—Houston [14th
Dist.] 2019, no pet.). When a party challenges the factual sufficiency of the
evidence supporting a finding on which it did not have the burden of proof, we
may set aside the finding only if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. Mar. Overseas Corp. v. Ellis, 971
S.W.2d 402, 407 (Tex. 1998); Safeco Ins. Co. of Am. v. Clear Vision Windshield
Repair, LLC, 564 S.W.3d 913, 919 (Tex. App.—Houston [14th Dist.] 2018, no
pet.). If we determine the evidence is factually insufficient, we must detail the
evidence relevant to the issue and state in what regard the contrary evidence
greatly outweighs the evidence supporting the trial court’s judgment; we need not
do so when affirming the judgment. Gonzalez v. McAllen Med. Ctr., Inc., 195
S.W.3d 680, 681 (Tex. 2006); 2900 Smith, 301 S.W.3d at 746.


                                         5
      We apply these standards mindful that the factfinder is the sole judge of the
credibility of the witnesses and the weight to be given to their testimony, and we
indulge every reasonable inference in support of the factfinder’s findings. See City
of Keller, 168 S.W.3d at 819, 822; 2900 Smith, 301 S.W.3d at 745. When, as here,
there is a complete reporter’s record of the trial, the trial court’s findings of fact
will not be disturbed on appeal if there is any evidence of probative force to
support them. See Barrientos v. Nava, 94 S.W.3d 270, 288 (Tex. App.—Houston
[14th Dist.] 2002, no pet.). Likewise, incorrect conclusions of law will not require
reversal if the controlling facts support a correct legal theory. BMC Software
Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).

             A. Evidence of Amount Owed to Schear Hampton
      Schear Hampton challenges the trial court’s finding that “[t]he balance owed
to [Schear Hampton] for work on The Abbey performed by [Schear Hampton] is
$36,678.32.” Schear Hampton argues that it presented the following evidence:
(1) it was owed $390,967 under the subcontract and change orders for completed
work; (2) it was paid $238,793.40; and (3) it was owed a remaining balance of
$152,173.60.

      To prevail on its claim, Schear Hampton had to prove it performed the labor
or furnished the materials and the debt is valid. See Crawford Servs., Inc. v.
Skillman Int’l. Firm, L.L.C., 444 S.W.3d 265, 268 (Tex. App.—Dallas 2014, pet.
dism’d). Schear Hampton thus has the burden of proof on appeal to conclusively
establish these elements or that the trial court’s finding as to the amount owed is
against the great weight and preponderance of the evidence. See Dow Chem. Co.,
46 S.W.3d at 241–42; Burton, 577 S.W.3d at 285.

      Founders presented a pay application at trial that was preadmitted by
agreement and reflected a balance due to Schear Hampton of $36,678.32. The pay

                                          6
application was for the period ending April 20, 2015, and referenced the original
contract amount of $235,000, “‘Approved’ Changes To The Contract” of
$131,783.24, and “Previous Payments” of $330,104.92. After the previous
payments were applied, the pay application reflects the “CURRENT PAYMENT
DUE” of $36,678.32. The document is stamped “ENTERED 15 APR 2015.”

      Schear Hampton challenges the pay application on the following grounds:
(1) it was dated after Schear Hampton filed its lien and “clearly created for the
litigation by Founders”; (2) Founders made a judicial admission in its third party
petition that Schear Hampton had an unpaid balance of $152,173.60 and did not
complain that the lien claim was excessive or invalid; and (3) the pay application is
not signed and was not authenticated. Founders counters that (1) there is no
evidence the document was created for litigation; (2) Founders’ pleading
referencing the amount of Schear Hampton’s lien claim is not a judicial admission;
(3) none of the pay applications admitted at trial were signed; and (4) Shear
Hampton did not object to the authenticity of the document.

      As to Schear Hampton’s first argument, the pay application was presented at
trial through John Black, the president of Construction Supervisors. He testified
that the pay application was dated April 20, 2015, after all the work was done on
The Abbey project. According to him, the pay application was sent from Schear
Hampton to Construction Supervisors, and it was initialed by an accountant from
Construction Supervisors. According to Founders, the pay application was served
in discovery by Construction Supervisors, and the Bates stamp on the document
admitted at trial reflects that to be correct. Whether the pay application was created
for litigation relates to the weight of the evidence, and we defer to the trial court, as
the factfinder and sole judge of the credibility of the evidence, on this issue. See
City of Keller, 168 S.W.3d at 819.

                                           7
       We agree with Founders that the recitation in Founders’ petition of the
amount of Schear Hampton’s lien claim is of no moment and is not a judicial
admission that Founders owed Schear Hampton the amount of its lien claim.
Similarly, Schear Hampton has not established how the lack of a signature
indicates the pay application is no evidence of the amount owed. At most, it raises
a fact question about whether the payments referenced in the document were
made.3 We also must defer to the factfinder on this question.

       Black testified that the pay application showed an amount due in April 2015
of $36,678. We agree with Founders that this is some evidence of the amount owed
to Schear Hampton after completion of the work. Schear Hampton argues that the
pay application reflects a payment of $92,000 that is not supported by evidence of
“when, how, or by whom” that payment was made. However, the pay application
itself is evidence of the balance owed to Schear Hampton and reflects payments
totaling $330,104.92, leaving a balance of $36,678.32.

       Schear Hampton also contends that no foundation was laid for the pay
application or for Black’s personal knowledge of the information in the pay
application. But the pay application was preadmitted by agreement, and thus
Schear Hampton failed to object to a lack of foundation or personal knowledge and
has not preserved these complaints for our review. See Ortega v. Cach, LLC, 396
S.W.3d 622, 628 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (“Although a
complaint regarding the legal or factual insufficiency of the evidence may be made
for the first time on appeal, an objection to insufficient foundation is one of form
rather than substance and must be preserved.”); cf. Washington DC Party Shuttle,

       3
         There is a sworn signature line to be signed by a Schear Hampton officer or owner on
the pay application attesting, among other things, that “the work performed and the materials
stored on the site represents the actual value under the terms of [the] Subcontract (including
authorized Change Orders thereto).”

                                              8
LLC v. IGuide Tours, 406 S.W.3d 723, 736 (Tex. App.—Houston [14th Dist.]
2013, pet. denied) (“[A] litigant must object and obtain a ruling from the trial court
to preserve a complaint that an affidavit fails to reveal the basis for the affiant’s
personal knowledge of the facts stated therein.”).

       Founders points to several inconsistencies in the evidence. First, as
discussed, none of the pay applications were signed by anyone at Schear Hampton,
and only one pay application reflects that it was approved by Construction
Supervisors.4 Second, several pay applications have conflicting information about
the dollar amount of approved change orders as well as the total value of work
completed. Much of the work described in the pay orders was performed before the
time allowed for Schear Hampton’s lien claim.5 Third, some of the work
purportedly should have been in the scope of work of the subcontract and not in a
change order.6 Finally, Schear Hampton admittedly did not complete all the


       4
         Many of the pay applications have “Jim Smith – Partner” from Schear Hampton printed
on them on the signature line, but they are not signed or notarized. A pay application from
October 2014 appears to be electronically initialed by a Construction Supervisors accountant.
The April 2015 pay application referenced above also has the same accountant’s initials, so there
are two pay applications that appear to have been approved by Construction Supervisors.
       5
          Before filing suit, a lien claimant must give written notice of the unpaid balance to the
original contractor “not later than the 15th day of the second month following each month in
which all or part of the claimant’s labor was performed or material delivered.” Tex. Prop. Code
§ 53.056(b). The same notice must be given to the owner “not later than the 15th day of the third
month following each month in which all or part of the claimant’s labor was performed or
material or specially fabricated material was delivered.” Id. Schear Hampton gave its first notice
to Founders on December 15, 2014 for work purportedly performed, as required under the
statute, in September and October 2014. But the pay orders also cover work performed before
September 1, 2014.
       6
          The parties disputed at trial what was meant by the language “a complete turnkey job”
in the subcontract. Schear Hampton presented evidence that it did not include repairing some of
the stucco work done by Target Masonry, but Founders presented evidence that the stucco repair
was in the scope of the subcontract and should not have been submitted as change orders. The
trial court did not expressly hold the phrase “complete turnkey job” was ambiguous, but admitted
parole evidence without objection regarding the scope of work in the subcontract. The trial court
may conclude a contract is ambiguous and consider parole evidence when the issue is tried by
                                                9
required punch list items to complete the work.

       To support its claimed lien amount, Schear Hampton had to establish what
work was performed after August 31, 2014 and the reasonable value of its work.
See Crawford Servs., 444 S.W.3d at 268. There were fact questions about when the
work was done, what work was done, and what work was within the scope of the
subcontract or should have been included in change orders. Because Founders
presented evidence that the value of Schear Hampton’s lien claim was only
$36,678.32 and given the inconsistencies in the evidence presented by Schear
Hampton, we conclude that Schear Hampton has not conclusively established the
amount of its lien claim. Similarly, Schear Hampton has not established that the
trial court’s finding as to the amount owed is against the great weight and
preponderance of the evidence.

              B. Offset for Founders’ Claims
       Schear Hampton also challenges the trial court’s offset of the lien by
damages awarded to Founders. Schear Hampton contends (1) Founders’ breach of
contract and negligence claims are legally barred; (2) there is no legal basis for
reducing the lien by the amount of damages; and (3) alternatively, there is legally
and factually insufficient evidence to support the amount of the damages finding.

       Breach of Contract. According to Schear Hampton, Founders is not a third-
party beneficiary of the subcontract and thus could not bring a breach of contract
claim.7 Schear Hampton asserts that because Founders is not a third-party

consent of the parties. Kennedy Ship & Repair, L.P. v. Pham, 210 S.W.3d 11, 21–22 (Tex.
App.—Houston [14th Dist.] 2006, no pet.).
       7
          Schear Hampton also contends Founders’ negligence claim is barred by the economic
loss rule. Because we conclude below that Founders is a third-party beneficiary and there is
sufficient evidence of a breach of contract, we need not address Schear Hampton’s argument
about the negligence claim. See BMC Software Belgium, 83 S.W.3d at 794 (noting reversal not
required when “the trial court rendered the proper judgment”).

                                            10
beneficiary, it did not prove the existence of an agreement between Schear
Hampton and Founders. See Mays v. Pierce, 203 S.W.3d 564, 575 (Tex. App.—
Houston [14th Dist.] 2006, pet. denied) (listing elements of breach of contract
including “the existence of a valid contract”).

      Founders counters that Schear Hampton waived this issue by failing to
answer Founders’ counterclaim on the basis that Founders was not a third-party
beneficiary. We disagree. Schear Hampton did not have to answer the counterclaim
because it was defending itself against an element of Founders’ claim. See Greater
Fort Worth & Tarrant Cty. Cmty. Action Agency v. Mims, 627 S.W.2d 149, 152
(Tex. 1982) (“If the plaintiff contesting the counterclaim does not intend to urge
any defensive theory which must be verified or any affirmative defense under Rule
94, he is not required to answer the defendant’s counterclaim.”).

      In the construction context, a property owner is ordinarily not a third-party
beneficiary of a contract between the general contractor and a subcontractor absent
clear evidence that the parties intended to benefit the property owner. Thomson v.
Espey Huston & Assocs., Inc., 899 S.W.2d 415, 419–20 (Tex. App.—Austin 1995,
no writ); see also Rivera v. S. Green Ltd. P’ship, 208 S.W.3d 12, 22 (Tex. App.—
Houston [14th Dist.] 2006, pet. denied) (“A party is presumed to contract only for
its own benefit and any intent to benefit a third party must be clearly apparent and
will not be presumed.”). Any doubt over intent should be resolved against the
property owner. Rivera, 208 S.W.3d at 22; Raymond v. Rahme, 78 S.W.3d 552,
561 (Tex. App.—Austin 2002, no pet.). For a property owner to recover as
beneficiary of a subcontract, it must also show that the contracting parties entered
into the contract directly and primarily for the property owner’s benefit. Rivera,
208 S.W.3d at 22; Raymond, 78 S.W.3d at 561.

      To determine whether Construction Supervisors and Schear Hampton

                                          11
expressed a clear intent to directly benefit Founders, we must interpret the
subcontract. See Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011). The
construction of an unambiguous contract is a question of law for the court, which
we consider de novo. Id. If the contract is subject to two or more reasonable
interpretations after applying the pertinent rules of construction, the contract is
ambiguous, creating a fact issue on the parties’ intent. J.M. Davidson, Inc. v.
Webster, 128 S.W.3d 223, 229 (Tex. 2003). When discerning the contracting
parties’ intent, we examine the entire agreement and give effect to each provision
so that none is rendered meaningless. Tawes, 340 S.W.3d at 425.

      Founders points to these provisions of the subcontract as evidence that
Founders was a third-party beneficiary:

          The subcontract incorporated the general contract by reference—

                   Contractor has entered into a contract . . . with Owner . . .
                   for the erection, construction and completion of the
                   Project in accordance with the plans, specifications,
                   addenda, all applicable safety rules and regulations and
                   any general, special and supplementary conditions of the
                   Contract, all of which are made part of said Contract and
                   all of which are now made part of this Subcontract.

            (Emphasis added.)

          Schear Hampton was obligated under the subcontract to

               o Provide stucco “labor and material” in compliance with the
                 general contract and “subject to the entire satisfaction and
                 approval” of Founders and others;
               o Be bound to the terms of the general contract and to assume “all
                 of the obligations and responsibilities which [Construction
                 Supervisors] . . . assumes toward [Founders]”;
               o Indemnify Founders against expenses in connection with
                 Schear Hampton’s work; and
                                          12
                   o “[C]omplete to [Founders’] satisfaction all punchlist work
                     within thirty . . . days of Substantial Completion or” the time
                     required by the general contract.

      These provisions of the subcontract refer to Founders as the owner of the
subject property. The above express language reveals that the parties to the
subcontract intended to provide a direct benefit to Founders. See Derr Const. Co. v.
City of Houston, 846 S.W.2d 854, 861 (Tex. App.—Houston [14th Dist.] 1992, no
writ) (holding subcontract mentioning third party contained express language
creating a third-party beneficiary); see also Grayson v. Grayson Armature Large
Motor Div., Inc., No. 14-09-00748-CV, 2010 WL 2361432, at *4 (Tex. App.—
Houston [14th Dist.] June 15, 2010, pet. denied) (mem. op.) (“The inclusion of
[third party] in the release of claims clause clearly indicates the contracting parties’
intent that [third party] receive a direct benefit from the settlement agreement.”).

      Schear Hampton argues, however, that an addendum to the subcontract
“expressly prohibits any claim by a non-party to the” subcontract. The addendum
states: “No 3rd party contingencies or contracts.” Founders argues this clause is
ambiguous and does not establish an intent to disclaim the language in the
subcontract conferring a direct benefit to Founders. If the meaning of a contract is
uncertain and doubtful, or reasonably susceptible to more than one meaning, the
contract is ambiguous, and its meaning must be resolved by the factfinder.
Williams v. Williams, 246 S.W.3d 207, 211 (Tex. App.—Houston [14th Dist.]
2007, no pet.). Founders contends that a reasonable interpretation of the clause
would be that Schear Hampton agreed not to employ third-party contractors or
create third-party contingencies.8 We agree that the meaning of the clause is
uncertain, susceptible to two or more meanings, and thus ambiguous. So we must
defer to the trial court as the factfinder to determine the parties’ intent. See id.
      8
          Founders does not offer an interpretation of “third-party contingencies.”

                                                13
      Schear Hampton’s owner testified at trial that he intended for the clause to
exclude third-party beneficiaries from the subcontract. Even so, a representative
from Construction Supervisors testified, “Honestly I don’t know what it means.”
The trial court did not make an express finding about the meaning of the clause.
But in finding that Schear Hampton breached the subcontract and in awarding
Founders’ damages, the trial court implicitly determined Founders to be a third-
party beneficiary. We defer to the trial court’s implied finding because it is
supported by evidence that Founders was intended to be a third-party beneficiary
of the subcontract. See Hendricks v. Barker, 523 S.W.3d 152, 160–61 (Tex.
App.—Houston [14th Dist.] 2016, no pet.) (“Under our standard of review, we
must defer to the trial court’s implied finding . . . because that finding is supported
by the evidence.”).

      Basis for Offsetting Damages. Schear Hampton also argues the trial court
could not offset the amount of the lien by the amount of Founders’ damages.
According to Schear Hampton, the Property Code does not expressly allow a
deduction of a materialman’s lien for damages. By the same token, the Property
Code does not forbid such an offset.

      Generally, once a construction project has been substantially completed, a
party is entitled to damages for errors or defects in construction. Ashford Partners,
Ltd. v. ECO Res., Inc., 401 S.W.3d 35, 39 (Tex. 2012). This doctrine of substantial
completion has been described as the legal equivalent of full compliance less any
offsets for remediable defects. Id. The damages available for such defects are the
cost of completing the job or of remedying the defects when they are remediable
without impairing the building as a whole. Id.

      As discussed, Founders established that it was a third-party beneficiary of
the subcontract. It brought counterclaims against Schear Hampton based on faulty

                                          14
workmanship and sought a lien offset by the cost to remedy those defects. Schear
Hampton has cited no authority for the proposition that a third-party beneficiary is
barred from seeking an offset for remediable defects under the substantial
completion doctrine when a subcontractor files a materialman’s lien claim under
the Property Code. And we have found no such authority. We turn to the statute for
guidance.

      Under the rules of statutory construction, we must presume that every word
of a statute was used for a purpose. City of Richardson v. Oncor Elec. Delivery
Co., 539 S.W.3d 252, 260 (Tex. 2018). Likewise, we presume every word
excluded from a statute was excluded for a purpose. Id. We ascertain the
legislature’s intent “from what it enacted.” See Wasson Interests, Ltd. v. City of
Jacksonville, 489 S.W.3d 427, 438 (Tex. 2016); Houston Cmty. Coll. Sys. v. HV
BTW, LP, No. 14-18-00467-CV, 2019 WL 2895219, at *9 (Tex. App.—Houston
[14th Dist.] July 2, 2019, no pet. h.).

      The Property Code sets forth specific requirements involving a mechanic’s
lien, including, among other things, the persons entitled to the lien, the property
subject to the lien, limitations on the lien, and the necessary procedures to perfect
the lien. See Tex. Prop. Code §§ 53.021–.058. The legislature did not expressly
preclude offsets to the amount of the lien for defects in construction under the
common law substantial completion doctrine. If the legislature had intended to
prevent a party from obtaining such an offset, the legislature could have said so in
the statute. We decline to impose such a restriction. See Wasson Interests, 489
S.W.3d at 438 (“[T]his Court presumes the Legislature deliberately and
purposefully selects words and phrases it enacts, as well as deliberately and
purposefully omits words and phrases it does not enact.”); see also Houston Cmty.
Coll. Sys., 2019 WL 2895219, at *9 (“If the legislature had intended to eliminate

                                          15
specific performance as an available remedy for service contracts, it could have
done so.”). In this connection, we conclude that Founders was entitled to an offset
of the amount of Schear Hampton’s lien by the number of remediable defects
found by the trial court if such findings are supported by legally and factually
sufficient evidence.

       Evidence of Damages. Schear Hampton argues no evidence supports the
trial court’s award of $15,000 to Founders. Founders presented bids at trial
reflecting costs to repair color variations in the stucco from $129,612.50 to
$176,748. Founders also presented evidence that it had spent $6,000 to $7,000 to
clean up stucco left on balconies and $32,000 to remove stucco applied over
electrical boxes. The factfinder has broad discretion to award damages within the
range of evidence presented at trial, which the trial court did here. See Critical
Path Res., Inc. v. Cuevas, 561 S.W.3d 523, 561–62 (Tex. App.—Houston [14th
Dist.] 2018, pet. filed).

       Schear Hampton also asserts there is no evidence that it caused any of
Founders’ damages, pointing to evidence that it completed its scope of work and
all punch list items. But conflicting evidence was presented at trial on these issues.

       Founders’ architect testified that the amenities building was never
completed, was discolored, and there was “sloppy work on the bottom part of the
stucco.” Schear Hampton argued at trial that correcting the issues with the
amenities building was not within the scope of work envisioned in the subcontract,
but Founders presented evidence that Schear Hampton had to finish the work
started by Target Masonry to Founders’ satisfaction in accordance with the
subcontract’s requirement “for a complete turnkey job.” Thus, Founders presented
evidence that Schear Hampton breached the subcontract when it failed to correct
these issues with the amenities building. Similarly, the architect testified that there

                                          16
were inconsistent stucco colors on the residential section of The Abbey that are
undisputedly included within the scope of the subcontract and, according to the
architect, were never corrected by Schear Hampton.

       A consultant hired by Founders, Dave Sherman, also testified that Schear
Hampton did not match patched areas of stucco with the original stucco and there
were other areas of discolored stucco not corrected by Schear Hampton.9 Sherman
also testified that Schear Hampton left “irregular lines between the stucco and
adjacent brick wall,” which was a deviation from general industry standards and “a
workmanship issue.” Construction Supervisor’s owner testified to the contrary that
Schear Hampton’s performance was “up to industry standard.”

       Sherman also testified that Schear Hampton left stucco on “over a hundred”
balconies that had to be cleaned up or topped with a concrete coating, although
Sherman later admitted he did not know how the stucco got on the patios. A
representative from Construction Supervisors testified that tile masons were
mixing mortar on the balconies and Schear Hampton did not come back and clean
up the debris because that was outside the scope of the subcontract.

       Sherman further testified that Schear Hampton covered 30 to 35 electrical
boxes with stucco. Schear Hampton presented evidence that it did not cover the
electrical boxes. Electricians had to uncover the boxes, and the plaster had to be
patched. Sherman finally testified that Schear Hampton did not finish the job, and
some work had to be done to finish Schear Hampton’s work after it left the job.

       We defer to the factfinder’s responsibility to fairly resolve conflicts in the
evidence. Considering the conflicting evidence presented at trial, we conclude that

       9
         Schear Hampton argues that the consultant admitted that damages associated with the
amenities building were caused by Target Masonry. But, as discussed, Founders presented
evidence at trial that Schear Hampton had to make those corrections as part of the subcontract.

                                              17
Schear Hampton has not established a lack of evidence supporting the trial court’s
finding that Schear Hampton caused damages to Founders of at least $15,000, an
amount far less than the amount sought by Founders, or that the finding is so
contrary to the overwhelming weight of the evidence as to be clearly wrong and
unjust.

      Finally, Schear Hampton contends that Founders is not entitled to damages
because the subcontract requires a change order for “back charges.” Back charges
in the construction context are generally deductions made by the general contractor
to amounts due the subcontractor for costs incurred by the general contractor for
faulty workmanship. See, e.g., Viron Int’l Corp. v. CECO Envtl. Corp., No. W-13-
CA-352, 2015 WL 11571002, at *3 (W.D. Tex. Feb. 27, 2015); Hebert
Acquisitions, LLC v. Tremur Consulting Contractors, Inc., No. 03-09-00385-CV,
2011 WL 350466, at *7 (Tex. App.—Austin Feb. 4, 2011, no pet.) (mem. op.).
Whether the subcontract required change orders to authorize upfront payment
deductions for costs incurred for faulty workmanship has no bearing on whether
Founders could bring a claim for breach of contract for construction defects against
Schear Hampton. We conclude this argument lacks support.

      We overrule Schear Hampton’s second issue challenging the legal and
factual sufficiency of the evidence in support of the trial court’s findings reducing
the amount of Schear Hampton’s lien and offsetting the amount of the lien by the
amount of Founders’ damages.

      II.    Did Schear Hampton establish its entitlement to attorney’s fees?
      In its third issue, Schear Hampton contends the trial court erred in failing to
award attorney’s fees to Schear Hampton because the lien statute states that the
trial court “shall award costs and reasonable attorney’s fees as are equitable and
just.” Tex. Prop. Code § 53.156.

                                         18
      Founders argues Schear Hampton waived this issue by failing to request
additional or amended findings of fact and conclusions of law or to file a motion
for new trial. The parties agreed to submit evidence about attorney’s fees by
affidavit, so the issue was before the trial court. Founders has cited no authority for
the proposition that this submission of evidence was insufficient to preserve error
on this issue, and we have found none.

      Presuming without deciding that Schear Hampton preserved error, under the
lien statute, the trial court did not have to award attorney’s fees “[w]ith respect to a
lien or claim arising out of a residential construction contract.” Id. (“With respect
to a lien or claim arising out of a residential construction contract, the court is not
required to order the property owner to pay costs and attorney’s fees under this
section.”). The Abbey is a senior living residential project. But even if this
language does not apply to a residential construction subcontract, the statute states
that a trial court “shall” award costs and fees in an action to foreclose a lien “as are
equitable and just.” Id.

      Awarding fees in an equitable and just manner falls into the trial court’s
discretion. See Acme Energy Servs., Inc. v. Staley, 569 S.W.3d 841, 851 (Tex.
App.—El Paso 2019, no pet.) (citing Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.
1998)). A trial court abuses its discretion when it acts arbitrarily, unreasonably, or
without regard to guiding legal principles. Bocquet, 972 S.W.2d at 21. Here, given
that the trial court reduced the amount of Schear Hampton’s lien and awarded
damages to Founders, the court could have concluded it would not have been
equitable or just to award attorney’s fees to Schear Hampton. See Acme Energy
Servs., 569 S.W.3d at 851. We thus conclude the trial court did not abuse its
discretion in refusing to award attorney’s fees to Schear Hampton. We overrule
Schear Hampton’s third issue.

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      III.   Did the trial court render a judgment of foreclosure and order a
             sale of the property in compliance with the statute?
      In its opening brief, Schear Hampton argues in its first issue that the trial
court did not foreclose the lien in its judgment, without explanation about how the
trial court failed to do so. Schear Hampton elaborates in its reply brief that the
form of the judgment is wrong because “Schear Hampton would be allowed to
foreclose on the property in the future (if Founders failed to pay Schear
Hampton).”

      Founders argues that Schear Hampton did not preserve error on this issue
because it did not request “additional or amended findings of fact and conclusions
of law” or bring “any such error to the court’s attention by way of a motion for
new trial.” We agree.

      To preserve a complaint for appellate review, a party must first present the
issue to the trial court. Tex. R. App. P. 33.1(a). Motions for new trial and to modify
judgment are appropriate methods for preserving error about an alleged defect in
the form of the judgment. Ortiz v. Collins, 203 S.W.3d 414, 427 (Tex. App.—
Houston [14th Dist.] 2006, no pet.). The record does not reflect that Schear
Hampton filed such a motion or otherwise brought this alleged error to the
attention of the trial court. See id. Thus, it has waived this issue on appeal.

                                      Conclusion

      We affirm the judgment of the trial court.


                                         /s/    Frances Bourliot
                                                Justice



Panel consists of Justices Christopher, Bourliot, and Spain.
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