                       In The
                 Court of Appeals
   Sixth Appellate District of Texas at Texarkana
           ______________________________

                 No. 06-10-00007-CV
           ______________________________


      TONY MILLER, INDIVIDUALLY AND D/B/A
TONY MILLER RENOVATIONS & CONSTRUCTION, Appellant

                             V.

               GAIL MCCARTY, Appellee




      On Appeal from the 202nd Judicial District Court
                   Bowie County, Texas
              Trial Court No. 08C0269-202




        Before Morriss, C.J., Carter and Moseley, JJ.
                Opinion by Justice Moseley
                                           OPINION

       Spencer and Gail McCarty experienced problems with their Bowie County home which

appeared to be caused by flaws in its foundation. In November or December 2007, Spencer made

contact with a family friend, Tony Miller, doing business as Tony Miller Renovations and

Construction, to repair the foundation. Spencer died during December 2007 and Gail contracted

with Miller to perform the work, this being the construction of pilings under the foundation to give

added support to the foundation’s southwest corner. Upon commencement of the anticipated

repairs, Miller discovered concrete pilings beneath the foundation which indicated that there had

apparently been two previous attempts to ameliorate the foundation problem. Although the

existence of these unexpected pilings created more difficulty than Miller had anticipated when

bidding the work, he attempted to work around them, but was unable to do so. Various disputes

arose regarding the deposit McCarty was to pay, the existence of an agreement that more work was

needed to lend additional support to the entire south end of the house, and the existence and impact

of an alleged plumbing leak which Miller maintained was the precipitating cause of the foundation

problems. As a result of the cumulative disputes, work on the job ceased with Miller and

McCarty blaming each other, McCarty claiming that Miller voluntarily quit and Miller

maintaining that he had been ordered by McCarty to leave the job site.

       McCarty filed suit against Miller individually and as Tony Miller Renovations &

Construction, alleging negligence, breach of contract, and violations of the Texas Deceptive Trade



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Practices—Consumer Protection Act (DTPA). TEX. BUS. & COM. CODE ANN. §§ 17.41–.63

(Vernon 2002 & Supp. 2010). Miller alleged contributory negligence, counterclaimed for breach

of contract, and pled excuse for his failure to perform. After a jury trial, the jury found: (1) that

both parties were negligent; (2) that McCarty had been damaged in the sum of $4,700.00 due to

Miller’s nonperformance of the contract; (3) that Miller performed compensable work of the value

of $2,937.50; and (4) that both parties had failed to comply with the contract; (5) but that Miller’s

failure to comply with the contract was excused. The issue of attorney’s fees was submitted to the

trial court. McCarty submitted attorney’s fees of $18,135.00 and Miller submitted attorney’s fees

of $1,800.00.

       After the filing of warring motions for judgment non obstante veredicto and motions to

enter judgment, the trial court entered a judgment which (1) disregarded the jury’s finding that

Miller was excused from complying with the contract, and (2) after weighing offsets, payments,

attorneys’ fees, and costs of court, awarded McCarty judgment for $18,204.90.

       On appeal, Miller argues that the trial court erred in disregarding the jury’s finding that

Miller’s breach of contract was excused on the stated basis that the finding was inconsistent with

the greater weight of the evidence. Miller further contends that because the jury found that he was

excused from performance of the contract, the trial court erred in awarding McCarty attorney’s

fees and recovery for damages.




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       In her cross-appeal, McCarty contends that: (1) there is factually insufficient evidence

that Miller and McCarty were twenty percent and eighty percent negligent, respectively; (2) there

is factually insufficient evidence that McCarty failed to comply with the contract; (3) there is

factually insufficient evidence that Miller’s failure to comply with the contract was excused; and

(4) the trial court erred because it did not award attorney’s fees consistent with the uncontroverted

evidence.

       As to Miller’s appeal, we reverse the trial court’s order disregarding the jury’s finding

because there is legally and factually sufficient evidence that Miller’s failure to comply with the

contract was excused. We also reverse the award against Miller for damages incurred by

McCarty and the attorney’s fee award given to her.

       As to McCarty’s cross-appeal, we reject McCarty’s argument that: (1) there is legally and

factually insufficient evidence that McCarty was negligent; (2) there is legally and factually

insufficient evidence that McCarty failed to comply with the contract; and (3) there is legally and

factually insufficient evidence that Miller’s failure to comply was excused.

Standard of Review

       The issues on appeal are the legal and factual sufficiency of the jury findings and the trial

court’s decision to disregard one of those findings. A trial court may disregard a jury’s finding

only if there is no evidence to support the finding. Spencer v. Eagle Star Ins. Co. of Am., 876

S.W.2d 154, 157 (Tex. 1994); C. & R. Transp., Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.



                                                 4
1966). In determining a no-evidence issue, we are to consider only the evidence and inferences

that tend to support the finding and disregard all evidence and inferences to the contrary.

Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001); Cont’l Coffee Prods. Co. v. Cazarez, 937

S.W.2d 444, 450 (Tex. 1996); Hooper v. Smallwood, 270 S.W.3d 234 (Tex. App.––Texarkana

2008, pet. denied).

         In a legal sufficiency review, we view the evidence in a light favorable to the finding,

crediting favorable evidence if a reasonable fact-finder could, and disregarding contrary evidence

unless a reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.

2005). Anything more than a scintilla of evidence is legally sufficient to support the jury finding.

Cazarez, 937 S.W.2d at 450. When reviewing the factual sufficiency of evidence, we examine all

the evidence and set aside a finding only if it is so contrary to the evidence as to be clearly wrong

and unjust. Bledsoe Dodge, L.L.C. v. Kuberski, 279 S.W.3d 839, 841–42 (Tex. App.––Dallas

2009, no pet.); Cameron v. Cameron, 158 S.W.3d 680, 683 (Tex. App.––Dallas 2005, pet. denied).

Legally and Factually Sufficient Evidence Regarding Miller’s Excuse to Comply with Contract

         In its answer to Question 7, the jury found that Miller’s failure to comply with the contract

was excused. Finding that the answer was ―inconsistent with the greater weight of evidence,‖ the

trial court granted McCarty’s motion to disregard the jury’s answer to Question 7.1 Miller argues


1
 By citing the ―greater weight of evidence‖ as its basis for disregarding the jury’s answer, the trial court failed to use
the proper ―no-evidence‖ standard. However, we will affirm the trial court’s decision if there is less than a scintilla of
evidence to support any of Miller’s theories of excuse. See Point Lookout W., Inc. v. Whorton, 742 S.W.2d 277, 278
(Tex. 1987) (per curiam); see also In re Acevedo, 956 S.W.2d 770, 775 (Tex. App.––San Antonio 1997, orig.

                                                            5
that the trial court erred because there is sufficient evidence that Miller’s failure to comply was

excused. 2 Contraveningly, McCarty contends that there is legally and factually insufficient

evidence to support the jury’s finding in the first place.

          At trial, Miller argued that his failure to comply with the contract was excused because:

(1) he and McCarty agreed that a new contract would take the place of the original, (2) McCarty

failed to comply with a material obligation of the contract, and/or (3) McCarty repudiated the

contract. The charge of the court listed each of these potential excuses for performance in its

instructions; therefore, the jury was permitted under those instructions to find Miller’s excuse from

performance on any one or more possibly inconsistent grounds without specifying the specific

reason.

          A contract that is modified or amended by the mutual consent of the parties constitutes a

new agreement that takes the place of the original. S & D Group, Inc. v. Talamas, 710 S.W.2d

680 (Tex. App.––Corpus Christi 1986, writ ref’d n.r.e.); Martin v. Davis Constructors, Inc., 552

S.W.2d 873, 877 n.4 (Tex. App.––San Antonio 1977, writ ref’d n.r.e.).

          Here, the contract called for Miller to repair McCarty’s foundation in three phases. It is

undisputed that phase one included the installation of six concrete piers beneath the southwest

corner of McCarty’s residence for a total cost of $4,000.00. The contract required McCarty to

proceeding); Hawthorne v. Guenther, 917 S.W.2d 924, 931 (Tex. App.––Beaumont 1996, writ denied); Luxenberg v.
Marshall, 835 S.W.2d 136, 141–42 (Tex. App.––Dallas 1992, no writ).
2
 Miller also argued that the trial court erred because it failed to apply the proper standard of ―no evidence‖ when ruling
on the motion and it failed to address all three of Miller’s proffered reasons for excuse.

                                                            6
pay Miller $2,000.00 at the beginning of phase one and another $2,000.00 upon the completion of

phase one. Shortly after McCarty paid the initial $2,000.00 and Miller began work, Miller

discovered concrete blocks near the foundation that were apparently part of a previous attempt to

repair the foundation.

       Miller testified that after he attempted to work around the previous foundation repair work,

McCarty inquired of him what would be needed to raise the entire south end of the residence (as

opposed to raising only the southwest corner as had been previously contemplated by the parties).

Miller advised that this change would require six additional piers added to phase one of the

contract, an action that would elevate the total cost of phase one by $1,875.00. Miller also

testified that in order to do the expanded work, he would require one-half of the additional cost (or

an additional $937.50) before he commenced work. Miller testified that McCarty paid $500.00 of

the $937.50, but failed to pay the remaining $437.50.

       McCarty admitted having paid Miller the additional $500.00 which Miller mentioned, but

attributes that additional payment to a very different fact circumstance.         Instead, McCarty

testified that Miller approached her and said he was broke and needed more money and that plea is

the sole reason she paid him the additional $500.00. McCarty specifically denied requesting that

Miller add more piers and, by implication, denies modifying or amending the original contract in

any way.




                                                 7
        The conflicting evidence raises a fact issue as to whether a new agreement was made. It is

the jury’s province to resolve conflicts in the evidence. Wilson, 168 S.W.3d at 819–20. The jury

remains the sole judge of witnesses’ credibility and the weight to be given their testimony; it is free

to accept or reject all or part of a witness’s testimony. Golden Eagle Archery, Inc. v. Jackson, 116

S.W.3d 757, 761 (Tex. 2003). Having considered all the evidence, we find legally and factually

sufficient evidence from which the jury could have determined that the parties agreed that a new

contract would take the place of the original.3 See Bradford, 48 S.W.3d at 754. The jury’s

finding is supported by more than a scintilla of evidence and is not so against the great weight and

preponderance of the evidence that it is clearly unjust.               Therefore, the trial court erred in

disregarding the jury’s answer to Question 7, and we reverse that portion of the judgment.

Legally and Factually Sufficient Evidence to Support the Jury’s Findings

        McCarty’s 80% Negligence

        In her pleadings, McCarty made allegations of violations of the DTPA. At trial, McCarty

argued that Miller’s negligence was responsible for the damages to her home. While Miller

admitted to damaging a few patio tiles and some of the brick on the home, he contended that the

rest of the damages were the result of McCarty’s failure to timely repair the foundation problem or

the plumbing leak that allegedly caused it.




3
 The jury did not specify the grounds upon which they found Miller’s breach to be excused. Having found sufficient
evidence supporting one of Miller’s proffered grounds for excuse, we need not address the others.

                                                        8
        The issues were presented to the jury and, in its answers to Questions 1 and 2, the jury

found that the negligence of both McCarty and Miller proximately caused the damages. The jury

found McCarty to be eighty percent negligent and Miller to be twenty percent negligent. In her

cross-appeal, McCarty argues that there is legally and factually insufficient evidence to support the

finding that she was eighty percent negligent. We disagree.

        McCarty knew of the home’s foundation problems as early as November 2005, but she did

not attempt to have them repaired until Miller began work in December 2007.4 Several witnesses

testified to the condition of the home prior to Miller beginning work. Mike Moon, a plumber,

testified that he noticed a ―steep‖ downward slope in the floor of the home. Joe Russ, Jr., a

construction manager for an engineering company that does failure analysis, foundation repair,

and other construction, testified that he noticed a slope in the floor years prior to McCarty buying

the house. Just prior to Miller’s work, he was in the home and saw damages consistent with

foundation problems: the floor had a downward slope to it, the fireplace listed to one side, doors

would not open or latch, and there were deep cracks in the walls and ―cracks, rips, [and] tears in the

sheetrock‖ and wall paper.

        McCarty argued that the pre-existing problems with the walls, doors, and molding got

worse after Miller’s work. McCarty’s expert architect, Mark Glenn, testified to the home’s

condition several weeks after Miller stopped working on the McCarty residence. Outside, he saw

4
 In late 2005 and early 2006, McCarty contacted a repair company, received an estimate, and agreed to a contract to
have her foundation repaired, but McCarty later canceled that contract.


                                                        9
several large, water-filled holes 5 that were dug under the home, broken pipes, ―jerry-rigged

electrical and gas connections,‖ damage to a small portion of the home’s brick exterior, and some

damage to ―small patio slabs.‖ Inside, he observed ―[m]edium to large sized cracks‖ in the

drywall, doors that were stuck, and separated crown molding. Glenn testified that based on the

information he was given at the time of his inspection, Miller’s work ―definitely contributed to the

more extensive damage.‖

         Determining the degree, if any, that the parties’ respective negligence proximately caused

McCarty’s damages is the province of the jury. See Pearson v. DeBoer, Inc., 99 S.W.3d 273, 276

(Tex. App.––Corpus Christi 2003, no pet.); see Smith v. Cent. Freight Lines, Inc., 774 S.W.2d 411,

412 (Tex. App.––Houston [14th Dist.] 1989, writ denied).                       The jury determined that the

negligence of both Miller and McCarty ―proximately cause[d] the occurrence in question.‖ It is

the jury’s role to weigh witnesses’ credibility and determine whether McCarty’s conduct

contributed to her damages, and if so, to what degree. Golden Eagle Archery, 116 S.W.3d at 761.

Here, the jury could have reasonably concluded that McCarty’s two-year delay in repairing the

foundation was the predominant proximate cause of the wall cracks, jammed doors, sloped floor,

and other damages, as well as any aggravation thereof. We find the evidence supporting the

jury’s finding to be more than a scintilla and not so weak or the finding so against the great weight



5
 There was conflicting testimony regarding whether Miller initially covered the holes and whether McCarty or anyone
else subsequently removed the tarpaulin covers, causing the holes to fill with water. Glenn testified that failing to
cover the holes and allowing them to stay filled with water would aggravate the existing foundation problems.

                                                         10
and preponderance of the evidence that it was clearly wrong and unjust. Therefore, we overrule

this point of error.

        Failure of McCarty to Comply with Contract

        In its answer to Question 5, the jury found that McCarty failed to comply with the contract.

McCarty contends that the evidence supporting the finding is legally and factually insufficient.

We disagree.

        Hereinabove, we found sufficient evidence that the parties agreed that a new contract

would take the place of the original contract. Under the terms of the modified contract, six

additional piers were required at an additional cost of $1,875.00. Miller required McCarty to pay

one-half of the additional cost ($937.50) at the outset. Miller testified that McCarty failed to

make the required up-front payment. Even though she denied modifying the contract, McCarty

paid Miller an additional $500.00, but did not pay him the remaining $437.50.

        This issue was contested and a fact issue was presented to the jury, which it resolved

against McCarty and determined that she failed to comply with the contract. We conclude the

evidence supporting the finding amounts to more than a scintilla and was not so weak or the

finding so against the great weight and preponderance of the evidence that it was clearly wrong

and unjust.

Issue of Attorney’s Fees




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         The parties stipulated that attorney’s fees would be determined by the trial court through

submitted affidavits. McCarty’s affidavit reflected attorney’s fees of $18,135.00, but the trial

court awarded McCarty only $14,000.00 in attorney’s fees. McCarty contends that the trial court

erred by failing to award the $18,135.00 in attorney’s fees because the evidence was undisputed

and must be taken as true as a matter of law.

         The jury having determined that Miller was excused from performing the contract, Miller

had no obligation to perform. Had McCarty recovered in her claim of breach of contract, she

would have been entitled to attorney’s fees. TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8)

(Vernon 2008). Because Miller was found by the jury to have been excused from performance,

he cannot now be held liable for attorney’s fees in a suit to enforce a contract, the performance of

which he has been excused.

         Accordingly, a discussion of the parameters which guide a trial court in the award of

attorney’s fees is unnecessary and would be superfluous.

         We overrule this point of error.

         No point of error was raised as to the correctness of Miller’s quantum meruit claim and

attorney’s fee award. Because there is sufficient evidence that Miller’s breach was excused,

McCarty did not prevail on her contract claim, and therefore, is not entitled to either damages or

attorney’s fees. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 38.001–.006 (Vernon 2008 & Supp.

2010).



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       We reverse the awards as to McCarty, as to both damages and attorney’s fees, and render

judgment that McCarty take nothing.        We further render judgment in favor of Miller in

accordance with the jury’s verdict.




                                            Bailey C. Moseley
                                            Justice
Date Submitted:       September 8, 2010
Date Decided:         September 21, 2010




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