       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-09-00059-CV



                                Courey International, Appellant

                                                 v.

                            Designer Floors of Texas, Inc., Appellee


               FROM COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY,
        NO. C-1-CV-04-276274, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Courey International (“Courey”) sued appellee Designer Floors of Texas,

Inc. (“Designer Floors”) for failure to pay half of the amount owed on a container of laminate.

Designer Floors counterclaimed that Courey had provided defective vinyl and composition tile in

two other shipments, for which Designer Floors had paid in full. At the bench trial, the parties

stipulated that Designer Floors owed Courey for the amount due on the laminate and tried the

counterclaim to the trial court. The trial court found for Designer Floors on the counterclaim,

awarded damages, and ordered Courey to retrieve the remaining tile from the warehouse of

Designer Floors. In eleven points of error on appeal, Courey argues that the evidence was legally

and factually insufficient to show that the tile was defective and properly rejected by Designer

Floors, that the court exceeded its authority in ordering Courey to retrieve the tile, and that Courey

is owed the amount due for the laminate and attorney’s fees. We affirm the judgment of the

trial court.
                                         BACKGROUND

               Designer Floors ordered two containers of vinyl and composition tile from Courey.

According to the testimony of Donna Dixon,1 a partner at Designer Floors who oversees the

administrative side of the business, the first container of tile was ordered in November 2002 and

arrived on April 30, 2003. The second container of tile was ordered in January 2003 and arrived

before the first container, on April 11, 2003. Designer Floors also ordered a container of laminate,

which arrived on May 12, 2003. Designer Floors paid Courey for the two containers of tile and made

a payment for half of the amount due on the container of laminate.

               In May 2003, Designer Floors began providing the Courey tile to subcontractors for

installation. Donna Dixon testified that, within 30 days of the initial installations, Designer Floors

began receiving warranty complaints from its customers indicating that the tile was “popping up”

and “cupping” due to a failure to adhere to the surface beneath it.2 Designer Floors handled the first

inquiries without contacting Courey, instead sending its subcontractors to correct the work.

However, additional customer complaints regarding installations of Courey tile arrived, coupled with

assertions from the subcontractors that they had done nothing wrong during the initial installations.

Designer Floors alerted Steve Poska, a Courey representative, about a possible defect in the tile

roughly two months after the initial installations. Designer Floors also contacted Erik Nordstrom



       1
          As the only two witnesses in this case, Donna Dixon and Michael Dixon, have the same
last name, they will be referred to by their full names throughout this opinion. The facts recited
herein are from their testimony and the exhibits admitted at trial.
       2
          In addition to the adhesion problems, Michael Dixon testified that each of the pieces of
Courey tile exhibited a small imprint in the same shape as a cutout found on the boxes used to ship
and store the tile.

                                                  2
of Quickstyle, a Courey distributor based in San Antonio, who along with Poska had met with

Designer Floors during initial negotiations regarding purchase of Courey tile.

               Courey representatives recommended that Designer Floors use a different kind of

adhesive when installing Courey tile. Michael Dixon, the president and co-owner of Designer

Floors, testified that he felt that the type of adhesive recommended by Courey was improper. To test

this advice, Designer Floors arranged with Courey to perform a special installation at Colony Square,

a location requiring a tile reinstallation due to problems with Courey tile. At Colony Square,

Designer Floors reinstalled Courey tile in two units, using standard adhesive in one unit and adhesive

recommended by Courey in the other. Although Designer Floors had planned for Courey to attend

the installation, no representatives from Courey showed up on the agreed-upon day of the

reinstallation. The reinstalled Courey tile failed to adhere in either unit, “popping up” and “cupping”

regardless of the adhesive used. Four days later, Designer Floors replaced the tile in the Colony

Square units with tile from another manufacturer, receiving no complaints about the new tile.

               In addition to consulting with Courey directly, Designer Floors also met with

Nordstrom to discuss the problems with the Courey tile. Nordstrom inspected installations where

the Courey tile was “popping up” and “cupping,” and Designer Floors performed a test at its office

for Nordstrom illustrating the adherence problems with the Courey tile.

               After discovering the issues with the Courey tile, Designer Floors performed

numerous tile reinstallations with a different brand of tile. These installations occurred between July

and October of 2003. The reinstallations were done with the same adhesive that had originally been

used with the Courey tile, and in some cases the work was performed by the same subcontractor who



                                                  3
had originally installed the Courey tile. Designer Floors received no complaints about the

reinstallations.

                   On October 23, 2003, Designer Floors sent a fax to Nordstrom which stated that “a

decision was made to discontinue selling the [Courey] Capri tile. We have had problems with

installation of this material and we have also had feedback about installation from people doing their

own.” After indicating the amount of Courey tile still in stock, the fax stated, “We would like to

have the inventory picked up and be reimbursed for what we have and the warranty issues.” Donna

Dixon also sent an email to Nordstrom on December 3, 2003, again detailing the inventory of Courey

tile and stating, “We will accept a credit up to the amount that we owe Courey [for the laminate] but

will need a check on the remainder of the balance due us. We are still getting calls regarding this

tile and I expect that we will continue to get them.” Donna Dixon testified that Courey offered to

give Designer Floors a credit for the tile remaining in the warehouse, but that no credit has

been forthcoming.

                   Courey filed a suit on a sworn account to recover the unpaid balance on the container

of laminate. Designer Floors counterclaimed for breach of contract due to delivery of defective tile.

At trial, Courey and Designer Floors stipulated that Designer Floors had not paid Courey for half of

the container of laminate. In presenting its counterclaim, Designer Floors offered the testimony of

Donna and Michael Dixon, along with documents reflecting the locations, dates, and cost of the

reinstallations and copies of the fax and email sent to Nordstrom. Courey offered no witnesses or

evidence in defending itself against the counterclaim. The trial court found for Designer Floors on

the counterclaim and entered judgment ordering Courey to pay Designer Floors $27,246.64, a total

equaling the amount paid for the remaining Courey tile that Designer Floors had in its inventory, the

                                                     4
cost of making warranty replacements for Courey tile that had already been installed, interest, and

attorney’s fees, minus the amount owed to Courey for the laminate. The court also ordered Courey

to retrieve the remaining tile from the warehouse of Designer Floors. This appeal followed.3


                                     STANDARD OF REVIEW

                When reviewing a finding for legal sufficiency, we must credit evidence favorable

to the judgment if a reasonable fact-finder could, disregard contrary evidence unless a reasonable

fact-finder could not, and reverse the fact-finder’s determination only if the evidence presented in

the trial court would not enable a reasonable and fair-minded fact-finder to reach the judgment under

review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We will sustain the appellants’

legal-sufficiency challenges if the record reveals: (1) the complete absence of evidence of a vital

fact; (2) that the court is barred by rules of law or evidence from giving weight to the only evidence

offered to prove a vital fact; (3) that the evidence offered to prove a vital fact is no more than a mere

scintilla; or (4) that the evidence conclusively establishes the opposite of a vital fact. See id. at 810.

More than a scintilla of evidence exists if the evidence rises to a level that would enable reasonable




        3
           As a preliminary matter, we address the joint motion of Courey and Designer Floors to
correct the clerk’s record by stipulation. According to the parties’ joint motion, the trial court’s
findings of fact and conclusions of law contain certain unintended inaccuracies that are inconsistent
with the court’s judgment. Specifically, conclusions of law numbers two and three incorrectly state
that appellant Courey, and not appellee Designer Floors, is entitled to attorney’s fees. In addition,
although the trial court’s sixth finding of fact states that Courey owes Designer Floors interest, there
is no corresponding conclusion of law regarding interest. The parties agree that conclusions of law
numbers two and three should be deemed to award attorney’s fees to appellee Designer Floors and
that finding of fact number six should be deemed to conclude as a matter of law that interest is
awarded as found. We grant the joint motion of the parties and order that the record be amended to
reflect the parties’ stipulations.

                                                    5
and fair-minded people to differ in their conclusions. Ford Motor Co. v. Ridgway, 135 S.W.3d 598,

601 (Tex. 2004).

                When considering a factual-sufficiency challenge, we consider all the evidence and

set aside the judgment only if it is so contrary to the overwhelming weight of the evidence that it is

clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Under either standard

of review, we must be mindful that the trial court as finder of fact is the sole judge of the credibility

of the witnesses and the weight to be given their testimony. McGalliard v. Kuhlmann, 722 S.W.2d

694, 696 (Tex. 1986); Raymond v. Rahme, 78 S.W.3d 552, 556 (Tex. App.—Austin 2002, no pet.).

The trial court may choose to believe one witness and disbelieve another, and we must not impose

our own opinion to the contrary. City of Keller, 168 S.W.3d at 819.

                We review the trial court’s conclusions of law de novo. BMC Software Belgium, N.V.

v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). Although appellants may not challenge a trial court’s

conclusions of law for factual sufficiency, we may review the trial court’s legal conclusions drawn

from the facts to determine whether the conclusions are correct. Id.


                                            DISCUSSION

Applicability of UCC

                Courey appeals from the trial court’s finding in favor of Designer Floors on its

counterclaim that Courey breached its contract by supplying defective tile. Here, the underlying

transaction involves the sale of goods, an area which is governed by the Uniform Commercial Code

(UCC). See Tex. Bus. & Com. Code Ann. § 2.102 (West 2009); SelecTouch Corp. v. Perfect Starch,

Inc., 111 S.W.3d 830, 834 (Tex. App.—Dallas 2003, no pet.) (“Contracts relating to the sale of


                                                   6
goods are governed by article two of the Uniform Commercial Code (UCC), adopted in Texas as

chapter two of the business and commerce code.”). Texas courts have consistently recognized that,

“[w]here the UCC applies, common-law rules of law regarding breach of contract do not apply.”

Aquila Southwest Pipeline, Inc. v. Harmony Exploration, Inc., 48 S.W.3d 225, 236 (Tex.

App.—San Antonio 2001, pet. denied); see also id. (explaining that UCC applies to contract for sale

of goods even when parties “treat[] th[e] case as a common law breach of contract and breach of

warranty case”). Accordingly, we will apply the UCC when analyzing the trial court’s rulings on

the counterclaim of Designer Floors.


Defective Tile

                 In points of error one and two, Courey argues that there is legally and factually

insufficient evidence that the tile was defective. Under the UCC, a good is “defective” for purposes

of rejection or revocation when it fails to conform to the contract between the parties. See

SelecTouch, 111 S.W.3d at 834; see also Leggett & Platt, Inc. v. Yankee Candle Co.,

No. 4:06-CV-366-Y, 2008 U.S. Dist. LEXIS 21499, at *17 (N.D. Tex. Mar. 17, 2008) (“A buyer

who rightfully rejects the goods or justifiably revokes his acceptance may recover breach-of-contract

remedies for delivery of nonconforming or defective goods under section 2.711 of the UCC.”)

(internal citations and punctuation marks omitted). In determining whether the goods fail to conform

to the contract between the parties, we examine the terms of the contract. Printing Ctr. of Texas, Inc.

v. Supermind Publ’g Co., 669 S.W.2d 779, 784 (Tex. App.—Houston [14th Dist.] 1984, no writ.).

Under the UCC, “a warranty that the goods shall be merchantable is implied in a contract for their




                                                  7
sale if their seller is a merchant with respect to goods of that kind.”4 Tex. Bus. & Com. Code

Ann. § 2.314(a) (West 2009); see also Printing Ctr., 669 S.W.2d at 784-85 (treating implied

warranty of merchantability as contractual term in breach of contract case). Merchantable goods are

those that “are fit for the ordinary purpose for which such goods are used.” Tex. Bus. & Com. Code

Ann. § 2.314(b)(3).

               At trial, Designer Floors presented evidence that the Courey tile was nonconforming

due to its lack of suitability for its ordinary purpose. Designer Floors offered the testimony of Donna

and Michael Dixon, who discussed two specific defects in the tile: its failure to adhere to the surface

below it, resulting in its “popping up” and “cupping,” and the presence of an imprint on each piece

of tile in the same shape as a cutout in the shipping boxes. Donna Dixon recounted the complaints

that she received regarding installations of Courey tile and the lack of similar complaints when

another brand of tile was used (even when other elements such as the adhesive and subcontractor

performing the installation were the same). She also discussed the test installation Designer Floors

arranged to determine whether the adhesive was the cause of the “popping up” and “cupping” of the

Courey tile. In addition, Michael Dixon, who has 30 years’ experience in flooring, testified

regarding the procedures used to choose and install the adhesives employed by Designer Floors, and

detailed the small imprint conforming to a cutout on the shipping materials found on each piece of



       4
         We address the implied warranty of merchantability only as a term of the contract. We note
that breach of warranty and breach of contract are distinct causes of action with separate remedies.
Southwestern Bell Tel. Co. v. FDP Corp., 811 S.W.2d 572, 576 (Tex. 1991). However, while
“warranty is a distinct claim, it is nonetheless a part of the basis of a bargain and is contractual in
nature.” Medical City Dallas, Ltd. v. Carlisle Corp., 251 S.W.3d 55, 61 (Tex. 2008). Consequently,
we look to the implied warranty to determine the terms of the agreement underlying the breach of
contract claim in this case.

                                                  8
tile.5 Michael Dixon explained that he had taken samples from 270 of the more than 2,300 boxes

of remaining tile, and that almost each piece of tile in the selected boxes demonstrated the imprint.

               The evidence presented by Designer Floors is sufficient to support a finding that the

goods were defective and thereby failed to conform to the contract between the parties. Absent

evidence that the implied warranty of merchantability was excluded or modified, see id. § 2.314(a),

we read the term into the sale agreement. In this case, there is evidence that the tile was not

suitable for its ordinary purpose, violating the implied warranty of merchantability. See id.

§ 2.314(b)(3). Consequently, the trial court did not err in finding that the tile was “defective” for

purposes of the UCC.

               Courey, however, argues that the evidence presented by Designer Floors was

nonetheless insufficient to show a defect in the tile. First, Courey argues that the evidence was

insufficient because Designer Floors failed to provide evidence of a specific defect in the tile.

However, the trial testimony of Donna and Michael Dixon clearly points out specific defects in the

tile, including its failure to adhere and the presence of an imprint on almost every piece of tile.

               Next, Courey argues that the evidence of defect was insufficient because Designer

Floors failed to offer evidence of the condition of the tile when delivered or the manner in which it

was stored. In a case involving the implied warranty of merchantability, “an affirmative showing

by the seller that the loss resulted from some action or event following his own delivery of the goods

can operate as a defense.” Tex. Bus. & Com. Code Ann. § 2.314 cmt. 13. However, Courey has



       5
           During his testimony, Michael Dixon described the imperfection: “When you look at this
tile, you can shadow it. You can see that there’s an imprint in the middle of the tile. It’s the same
one that’s the imprint in the top of that box there, that piece of cardboard that’s cut out.”

                                                  9
offered no such evidence here. The testimony at trial establishes that the tile was kept in the

warehouse of Designer Floors, and there is no evidence in the record that the storage conditions

caused or could have caused the particular defects in the tile. In addition, the record offers no

indication that Designer Floors mishandled the tile during installation.           Indeed, the record

demonstrates that Designer Floors made a substantial effort to compensate for the defects in the tile

by switching adhesives, only to find that the problems remained.

               Finally, Courey argues that the evidence was insufficient because Designer Floors did

not offer expert testimony regarding the defects. However, expert testimony was not required to

prove the defects at issue in this case.6 Texas courts have recognized that, in an action for breach

of contract under the UCC, lay testimony may be used to show a product’s defect or nonconformity.

See, e.g., SelecTouch, 111 S.W.3d at 837-38. In SelecTouch, the trial court properly considered the

lay testimony of a company president who “had worked with electronics most of his adult life” in

determining whether electronic switch panels were improperly manufactured. See id. (holding that




        6
          Courey relies on products liability jurisprudence for the proposition that expert testimony
is required to show a defect in the tile. While expert testimony may sometimes be required in
products liability cases, a “defect” in goods for the purposes of the UCC “is not the same as the
defect in a strict products liability case.” See Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 444
(Tex. 1989) (explaining that products liability “defect” requires showing of dangerousness, unlike
UCC); see also Dell, Inc. v. Muniz, 163 S.W.3d 177, 182 n.6 (Tex. App.—San Antonio 2005, no
pet.) (indicating that in context of UCC “a ‘defect’ has been construed as a condition of the goods
that renders them unfit for the ordinary purpose for which they are used because of a lack of
something necessary for adequacy”) (citations and quotation marks omitted)). Further, even in the
products liability field, expert testimony is not always required to prove a defect: “On a subject
matter in which the fact finder would not be required to be guided solely by the opinion testimony
of experts, lay testimony may be permitted” in a products liability case. Sipes v. General Motors
Corp., 946 S.W.2d 143, 155 (Tex. App.—Texarkana 1997, pet. denied).

                                                  10
court had discretion not only to consider lay testimony but to favor lay testimony over expert testimony).

                The evidence presented by Designer Floors would allow a reasonable and fair-minded

person to conclude that the tile was defective, and the evidence is not so weak that the finding is

clearly wrong and unjust. Accordingly, the evidence that the tile was defective is legally and

factually sufficient. Courey’s first and second points of error are overruled.


Rejection of Tile

                In points of error three and four, Courey argues that there is legally and factually

insufficient evidence to support the trial court’s finding that Designer Floors provided adequate

notice of rejection of the defective floor tile in a timely manner. Under the business and commerce

code, a buyer accepts goods if he agrees to accept them despite their nonconformity, fails to make

an effective rejection, or does any act inconsistent with the seller’s ownership. Tex. Bus. & Com.

Code Ann. § 2.606 (West 2009). “Rejection of goods must be within a reasonable time after their

delivery,” and the buyer must seasonably notify the seller of the rejection. Id. § 2.602(a). Where a

buyer accepts goods without knowledge of a non-conformity, the buyer may revoke its acceptance

if acceptance was reasonably induced either by the difficulty of discovery before acceptance or by

the seller’s assurances. Id. § 2.608(a)(2). Revocation of goods produces the same rights and duties

with regard to the goods as rejection. Id. § 2.608(c).

                Whether rejection or revocation of acceptance “occurred within a reasonable time

depends on the facts of a particular case.” Id. § 1.205(a); see also Toshiba Mach. Co. v. SPM Flow

Control, Inc., 180 S.W.3d 761, 772 (Tex. App.—Fort Worth 2005, pet. granted, judgm’t vacated

w.r.m.). As the inquiry is highly fact-specific, results vary widely from case to case. Compare


                                                   11
EPN-Delaval, S.A. v. Inter-Equip, Inc., 542 F. Supp. 238, 248 (S.D. Tex. 1982) (explaining that,

under Texas law, 65 days may not constitute “reasonable time” when nonconformity is “total and

blatant”), with Toshiba, 180 S.W.3d at 772 (explaining that buyer has not necessarily accepted goods

as matter of law even after 17,000 hours of use over four years). Notice of rejection must be clear

and unambiguous, and “mere notice that goods are nonconforming is not sufficient notice of

rejection or revocation of acceptance.” Emerson Elec. Co. v. American Permanent Ware Co.,

201 S.W.3d 301, 311 (Tex. App.—Dallas 2006, no pet.)

               In this case, the tile was delivered in April 2003. Designer Floors began sending the

Courey tile out for installation in May 2003, receiving the first customer complaints about the tile

within 30 days of the first installations. Designer Floors corrected some of the problems before

contacting Courey about the issues. Courey responded by advising Designer Floors to change the

kind of adhesive used with the Courey tile, but did not attend the special installation that had been

arranged to test the alternate adhesive. According to the testimony of Donna Dixon, after Designer

Floors notified Courey of mounting customer complaints regarding the Courey tile, Courey “told us

just to fix things and they would take care of it.” Designer Floors performed reinstallations with a

different brand of tile between July and October of 2003, and sent a fax requesting a refund on the

remaining Courey tile to Nordstrom on October 23, 2003.

               These facts support a finding that the notice of defect provided by Designer Floors

was given within a reasonable time. The difficulty in ascertaining the defect combined with the steps

Designer Floors took to cure the defect (or allow Courey to do so) indicate that the interim between

delivery and rejection was reasonable. In addition, these facts support a finding that Courey

provided clear and unambiguous notice to the seller. The fax sent to Nordstrom on October 23, 2003


                                                 12
clearly states that the Courey tile was defective and that Designer Floors sought a refund for the

unused tile. Though Nordstrom worked for Quickstyle, he had participated in the initial sale of the

Courey tile along with Poska, a Courey employee. Further, Donna Dixon testified that Nordstrom

and Poska “had the same information about the defects.” She further testified that Courey

offered Designer Floors a credit on the tile remaining in the warehouse, but never followed through

on such a promise.

               Courey also argues that Designer Floors exercised dominion over the tile, thereby

waiving its rights to reject or revoke the goods. A buyer is prevented from rejecting goods or

revoking acceptance only if the buyer accepts the goods “with knowledge of a non-conformity.”

Tex. Bus. & Com. Code § 2.607(b) (West 2009). Further, Texas courts have rejected the argument

that use, even after discovery of nonconformity, equals irrevocable acceptance. See Toshiba,

180 S.W.3d at 772. Instead, whether the buyer’s use of goods precludes rejection or revocation of

acceptance depends upon whether the use was reasonable, and “what constitutes reasonable use is

a question of fact to be decided under the circumstances of each case.” See id. In this case, Designer

Floors reasonably used the tile in its initial installations, and stopped installing the tile after

confirming the defects in the goods. The remaining tile was simply stored in their warehouse.

Consequently, they retained the rights regarding rejection and revocation of the defective goods.

               Together, these facts would allow a reasonable and fair-minded person to conclude

that Designer Floors properly rejected or revoked acceptance of the nonconforming tile, and the

evidence is not so weak that the finding is clearly wrong and unjust. Accordingly, Courey’s third

and fourth points of error are overruled.



                                                 13
Expenditures for Warranty Replacements

               In points of error five and six, Courey argues that there is legally and factually

insufficient evidence to support the trial court’s finding that Designer Floors was forced to expend

$7,166.14 in warranty work to replace defective floor tile for its customers. Designer Floors

presented the testimony of Donna Dixon, who detailed the dates of the warranty replacements made

by Designer Floors between July and October of 2003 and the costs of the replacements. The court

also admitted into evidence a chart made by Donna Dixon detailing thirteen warranty replacements

of Courey tile as well as invoices for each of the warranty replacements.

               This evidence would allow a reasonable and fair-minded person to conclude that

Designer Floors spent $7,166.14 on warranty replacements of the Courey tile and is not so weak that

the finding is clearly wrong and unjust. Accordingly, the evidence is legally and factually sufficient.

Courey’s fifth and sixth points of error are overruled.


Order Requiring Removal of the Tile

               In points of error seven and eight, Courey argues that there is legally and factually

insufficient evidence to support the trial court’s order that Courey remove the tile from the premises

of Designer Floors. A statutory county court has the power to grant equitable relief. Tex. Gov’t

Code Ann. § 26.050 (West 2004) (authorizing county courts to “grant any relief that may be granted

by a court of law or equity”), .051 (authorizing county courts to grant writs, including writs of

mandamus and injunction). Courts retain their equitable powers even in cases involving the UCC:

“The Uniform Commercial Code was drafted against the backdrop of existing bodies of law,

including the common law and equity, and relies on those bodies of law to supplement it[s]

                                                  14
provisions in many important ways.” Tex. Bus. & Com. Code Ann. § 1.103 cmt. 2 (West 2009).

Accordingly, “principles of common law and equity may supplement provisions of the Uniform

Commercial Code,” provided such principles are not “inconsistent with either [the UCC’s]

provisions or its purposes and policies.” Id. As “[t]he granting or denial of equitable relief lies

within the sound discretion of the trial court,” Fleetwood v. Med Ctr. Bank, 786 S.W.2d 550, 556

(Tex. App.—Austin 1990, writ denied), such determinations are subject to an abuse of discretion

standard of review on appeal.        Crown Constr. Co. v. Huddleston, 961 S.W.2d 552, 558

(Tex. App.—San Antonio 1997, no pet.).

                In this case, Courey argues that the damages awarded by the trial court constitute an

adequate remedy at law, and therefore no basis exists for the trial court’s order requiring Courey to

remove the tile from the premises of Designer Floors. The damages awarded by the trial court,

however, relate to the receipt and use of defective goods, not to the ongoing storage or disposal of

such goods. Further, while the UCC imposes on the buyer “a duty after rejection to hold [the

rejected goods] with reasonable care at the seller’s disposition for a time sufficient for the seller to

remove them,” Tex. Bus. & Com. Code Ann. § 2.602(b)(2), the UCC neither imposes an obligation

on the buyer to return the goods to the seller nor provides a means for the buyer to require the seller

to remove the goods. See id. § 2.711 (enumerating buyer’s remedies for breach of contract under

UCC). Accordingly, the evidence that Courey delivered defective goods to Designer Floors and that

those goods remain within the storage facilities of Designer Floors is sufficient to support the

equitable order of the trial court ordering the goods removed. As the court’s order is supported by




                                                  15
the evidence and did not constitute a clear abuse of discretion, Courey’s seventh and eighth points

of error are overruled.


Adequacy of Pleadings

               In point of error nine, Courey argues that the trial court’s order mandating removal

of the defective tile from the warehouse of Designer Floors was not supported by the pleadings

because Designer Floors did not specifically request such relief. However, under Texas law, “[w]hen

a plaintiff has included a general prayer for relief, the propriety of a remedy depends not on the

specific relief sought but on the facts pleaded and proven.” Holmstrom v. Lee, 26 S.W.3d 526, 532-

33 (Tex. App.—Austin 2000, no pet.).7 In such cases, the court may grant relief consistent with the

facts proven at trial, provided the result does not enlarge the pleadings to include a different cause

of action for which fair notice does not exist. See Stoner v. Thompson, 578 S.W.2d 679, 683

(Tex. 1979).

               In this case, Designer Floors included a general request for relief in its prayer,

requesting “such other and further relief to which it may be justly entitled.” The pleadings assert that

Courey breached its contract by delivering defective tile to Designer Floors, and Designer Floors

produced legally and factually sufficient evidence at trial that such defective tile was delivered and

stored in its warehouse. Accordingly, an order requiring removal of the defective tile underlying the

breach of contract claim is supported by the pleadings and the facts proven at trial. Courey’s ninth

point of error is overruled.


       7
          Relief under a general prayer may be granted even if, as here, a party has also requested
specific relief. See Vaughn v. Drennon, 202 S.W.3d 308, 314 (Tex. App.—Tyler 2006, pet. denied)

                                                  16
Effect of a Take-Nothing Judgment on the Counterclaim

               In point of error ten, Courey argues that a take-nothing judgment on the counterclaim

of Designer Floors compels a judgment for Courey and an award of attorney’s fees. As we affirm

the judgment of the lower court, we need not reach this issue.


                                         CONCLUSION

               Because we find no reversible error, we affirm the judgment of the trial court.




                                             __________________________________________

                                             Diane M. Henson, Justice

Before Chief Justice Jones, Justices Puryear and Henson

Affirmed

Filed: January 15, 2010




                                                17
