 AFFIRM; Opinion flIed November 9,2012.




                                                In The
                                      nurt nf Awi1i
                          FiftIi    Jitrirt     Uf     ixai    tt   ht11wi
                                        No. 05-10-01360-CV


                          BULLDOG IRON WORKS, L.L.C., Appellant

                                                  V.

                              TOP FLIGHT STEEL, INC., Appellee


                        On Appeal from the County Court at Law No. 2
                                    I)allas County, Texas
                            Trial Court Cause No. CC-09-04424-B


                               MEMORANDUM OPINION
                         Before Justices Moseley, Lang-Miers, and Murphy
                                    Opinion By Justice Moseley

        This is an appeal from a non-jury trial in a construction contract dispute between two

subcontractors. Bulldog Ironworks, L.L.C. sued Top Flight Steel, inc. asserting Top Flight failed

to complete its subcontract to erect steel dumpster panels and seeking to recover expenses Bulldog

incurred performing that job. Top Flight filed a counterclaim for breach of contract to recover the

remaining balance of its subcontract. After a bench trial, the trial court rendered judgment that

Bulldog take nothing from Top Flight and that Top Flight recover the balance on the subcontract plus

attorney’s fees. The trial court filed written findings of fact and conclusions of law.

       Bulldog raises nine issues on appeal; in general Bulldog challenges the factual sufficiency

of the evidence to support the findings rejecting its claim and supporting the judgment for Top
 Flight. The background of the case and the evidence adduced at trial are well known to the parties:

 thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue

 this memorandum opinion. TEx. R. Apr. P. 47.2(a). 47.4. We affirm the trial court’s judgment.

                                       FAcTu,L B&cKGR0UND

        This case concerns the installation of steel—reinforced concrete panels around the trash

dumpsters at a shopping center project. The geieral contractor, Mycon Construction Company,

subcontracted with Bulldog to fabricate the steel and erect the stcel-reinfbrced concrete panels for

the project. Bulldog in turn subcontracted the erection of the panels to Top Flight under a fixed-price

contract.

        Before construction, Terry Blair for Top Flight, Eddie Gaston for Mycon. and Kevin Lassiter

for the concrete supplier, Pavecon, met at the site to determine the layout and construction

sequencing of the main building panels. At the time of the meeting, the plans for the dumpster

panels were not finalized and the sequencing and placement of the dumpster panels were not

decided.

        The evidence conflicts about what happened at the meeting regarding the dumpster panels.

Gaston testified that Blair said the panels were light and could be poured anywhere without a

problem. Blair testified he told Gaston to pour the panels within fifty feet of where they needed to

be installed and he could install them. Lassiter agreed that Blair told Gaston about the fifty-foot

requirement. Lassiter said it was common for erectors to use a fifty-foot spacing requirement.

       After the panels for the main building had been installed, the dumpster panels were ready to

be poured by the concrete supplier. It is undisputed that Gaston (for Mycon) directed Pavecon to

pour the dumpster panels on the front parking lot, several hundred feet from where they would be

installed at the back of the building. Bulldog was not involved in this decision.




                                                —2—
        A few weeks after the dumpster panels had been poured, a Top Flight crew came out to

 install them. Blair testified he was shocked that the panels had been   poured in   the front parking lot

 and called Gaston to complain. Blair told Gaston Top Flight would have to bring a truck and a crane

to move the panels to the back before installing them and that there would be an additional cost.

Gaston responded that Blair had agreed the panels could be poured anywhere and could be installed

with no problem. Blair denied making that statement.

        Shortly thereafter in December 2008, lop Flight sent an e-mail to Bulldog requesting a

change order for 7,500 for the extra cost of moving the panels, i.e., for the extra time involved and

the expense of a tnick and crane. Bulldog attempted to get Mycon to agree to the change order, but

Mycon refused. There is conflicting evidence about whether Top Flight was informed there would

be no change order, lop Flight’s president, Jaime Chacon, testified that Top Flight was willing to

install the panels before approval of a change order, but that it was never told when the panels were

ready to be installed. Blair testified that even without the change order, they probably could have

worked something out to do the installation. He said they could have negotiated the price of the

extra work, but no one asked to do so. Blair testified Gaston called him several times about

installing the panels, but when Blair went to the site, it was not prepared for the installation. Gaston

testified Top Flight refused to install the panels without the change order.

        According to Bulldog, Mycon insisted that if the panels were not installed by April 2009, it

would hire another contractor to do the work and charge Bulldog for the expense. Bulldog then

rented equipment and used its own employees to install the panels, beginning March 31, 2009. On

April 1, 2009, unaware that Bulldog was doing the work, Chacon sent an e-mail to Bulldog asking

when Mycon would be ready to install the panels and stated he needed the change order. Soon after

this Blair went to the site and discovered that the panels had already been installed.




                                                 —)—
         Bulldog invoiced Top Flight for 815,7 19.60 for the cost of labor and equipment rentals for

 installing the panels. Top Flight refused to pay. The evidence indicates that Top Flight had been

 paid all of its contract price except the last ten percent       ($ 10,894.20), which was retained by the
 general contractor until resolution of this dispute. Bulldog sued Top Flight for breach of contract

to recover the additional expense. Top Flight tiled a counterclaim for breach of contract and sought

to recover the balance   due   on the subcontract.

        The trial court rendered judgment that Bulldog take nothing on its claim and Top Flight

recover the retainage amount from Bulldog plus prejudgment interest and attorney’s fees. The trial

court found, among other things, that Top Flight performed the entire contract except for installing

the dumpster panels, that Bulldog did not notify Top Flight to complete installation of the panels,

that Top Flight did not breach the subcontract, and that Bulldog breached the subcontract by

preventing Top Flight’s performance causing Top Flight damages in the amount of the retainage.

                           STANDkRD OF REvIEw AND APPLicABLE                LAW

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

be reviewed for legal and factual sufficiency under the same standards.       Sanders   v. Total Heat & Aii

Inc., 248 S.W.3d 907, 912 (Tex. App.—-Dallas 2008, no pet). To evaluate the factual sufficiency

of the evidence to support a finding, we consider all the evidence and set aside the finding only if

the evidence supporting it is so weak or so against the overwhelming weight of the evidence that the

finding is clearly wrong and unjust. Id. The appellant should direct its sufficiency attack to specific

findings of fact rather than the judgment as a whole. See Shaw v. County of Dallas, 251 S.W.3d 165,

169 (Tex. App.—Dallas 2008, pet. denied). Unless challenged on appeal, findings of fact are

binding on the parties and the appellate court.            Rich      Olah, 274 S.W.3d 878, 884 (Tex.

App.—Dallas 2008, no pet.). As trier of fact, the trial court is the sole judge of the credibility of the




                                                     —4-
witnesses, may believe one witness over another, and may resolve any conflicts in the testimony.

Sanders. 248 S.W.3d at 9l7-l8. We review the trial court’s conclusions of law de novo. Rich, 274

S.W.3d at 884.

        The elements of a claim tor breach of contract are: (l)the existence of a valid contract; (2)

the plaintiff’s performance or tender of performance: (3) the defendant’s breach of the contract; and

(4) damages as a result of the breach. Paragon Ge,,.     Co,,tractors. tue.   : Larco Constr., Inc., 227

S.W.3d 876, 882 (Tex. App.—Dallas 2007, no pet.). A breach of contract occurs when a party fails

to perfbrm an act that it has expressly or impliedly promised to perform. £ctv v. Beat Bank S.S.B.,

298 S.W.3d 280, 299 (Tex. App.--I)allas 2009, no pet.).

        A contractor who is unjust ifiably prevented by an owner from finishing his work may sue and

recover as provided by the contract. Earns      i   Smith Erectors, Inc., 516 S.W.2d 281, 283 (Tex.

App.---- Houston [I st [)ist.j 1974, no pet.). As set forth in Earns:

       A contractor who is unjustifiably prevented by the owner from finishing his work
       may sue and recover as provided by the contract. Smith v. Lipseomb, 13 Tex. 532
       (Tex. Sup. 1855); Dockerv v. Durham, 3 S.W.2d 514, 519 (Tex. Civ. App.—Waco
        1927, writ disrn’d). His recovery in such case is measured by the difference between
       the contract price and what it would have cost him to carry out the contract. Waco
       TapR. Co. v. Shir!ey,45 Tex. 355 (Tex. Sup.1876); Carras v. Birge,211 S.W.2d 998
       (Tex. Civ. App.—Dal1as 1948, writ ref. n.r.c.). Although he is entitled to recover the
       profits which the contract would have yielded, he is not entitled to receive, if he has
       only partially performed the contract, the same amount of money to which he would
       have been entitled had it been fully executed. Porter v. Burkett, 65 Tex. 383 (Tex.
       Sup.1886). The burden of proof is upon the contractor to provide the data from
       which such damages may be computed. Tower contracting company v Flores, 294
       S.W.2d 266 (Tex. Civ. App.—Galveston 1956, affd as modified, 157 Tex. 297, 302
       S.W.2d 396).

hi. See also Kleineu’ v. Euhank, 358 S.W.2d 902, 905 (Tex. Civ. App.—Austin 1962, writ ref d




                                                 —5—
 n.r.c.) (citmg Ioit’er Contractini): Earns, 5 16 S.W.2d at 283.1

                                                                   ANALYSiS

            In Bulldog’s sixth issue,
                               2 it contends the evidence is factually insufficient to support the trial

 court’s finding in Finding of Fact 11 that Top Flight did not breach the contract. In its seventh and

eighth issues, l3ulldog challenges the trial court’s Conclusion of Law 1, that i3ulldog fiuilcd to meet

 its burden of proof on its claim for breach of contract, and Conclusion of Law 3, that Bulldog failed

to comply with the contract with Top Flight. In its ninth issue, Bulldog contends the evidence is

factually insufficient to support the trial court’s Finding of Fact 12, that “Bulldog breached its

contract with [Top Flight] by preventing performance                                      “   We discuss these issues together.

            With respect to whether Top Flight breached, Bulldog points to the undisputed evidence that

part of Top Flight’s subcontract was to place the dumpster panels at their final location and that Top

Flight did not complete that portion of the contract. And indeed the trial court found—and it is

undisputed on appeal—that Top Flight performed all of its work “except for the installation of the

dumpster panels.”

            However, Bulldog does not challenge the trial court’s Finding of Fact 8, that Top Flight “was

never notified by Bulldog or the general contractor to complete the installation of the dumpster

panels, and without allowing [Top Flight] an opportunity to perform, Bulldog undertook to install

the dumpster panels using its own employees.” This unchallenged finding is binding on Bulldog;

it supports the conclusion that Bulldog prevented Top Flight from performing and that Bulldog

breached (“did not comply” in the words of the trial court’s Conclusion of Law 3) the contract.


       Alternatively, the tenninated contractor can elect to treat the contract as rescinded and recover on quantum meruit the full value of the work
done. csen though it may exceed the contract price. Tower Contracting. 302 S.W.2d at 399. Here, Top Flight did not assert a claim for quantum
merult. so we do not discuss this theory of recovery further.

      Bulldog’s Orst six issues relate to the question of breach and Bulldog argues them together. We address them here, but note that issues one,
two and five attack the judgment generally, not specific findings of fact. Thus, they present nothing for review. See Shaw, 251 S.W.3d at 169.




                                                                       —6--
            Although the evidence was disputed, we conclude it supports the trial court’s findings that

 Top Flight did not breach the contract and that Bulldog did, We reject Bulldog’s sixth, seventh,

 eighth, and ninth issues:

                                                               CONCLUSION

            We conclude the evidence is factually sufficient to support the trial court’s findings of fact

 challcngud on appcal Accoidingly w.c itfiim thc trial crnirt s judgment
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 101360F.P05




      Bulldog’s third and fourth issues attack specific findings of fact about where the dumpster panels were poured. Those findings are evidentia
      3
and not material because it is undisputed that Bulldog did not direct the placement of the panels. See .Vorred i: Hans/jo/il. 360 S.W3d 583. 587
(Tex. App—Dallas 2011. no pet): Cooke Counti Thx Appraisal Disi i: Teel, 129 SW3d 724. 731 (Tex. App—Fort Worth 2004. no pet.)
(erroneous finding of fact is harmless and not grounds for reversal if finding is immaterial>.
                                 Qlnitrt nf ipi1a
                        iiftIi ?Jh;trict tif Ecxa at Da11a

                                       JUDGMENT
BULLDOG iRONWORKS, L.LC.,                           Appeal from the County Court at Law No. 2
Appellant                                           ol Dallas County. Texas. (Tr.Ct.No. CC-09-
                                                    04424-B).
No. 05-10-01 360-CV           V                     Opinion delivered by Justice Moseley,
                                                    .Justices Lang-Miers and Murphy
TOP FLIGI IT STEEL, INC., Appellee                  participating.


        In accordance with this Court’s opinion of this (late, the judgment of the trial court is
AFFIRMEI). It is ORDERED that appellee Top Flight Steel, Inc. recover the full amount of the
trial court’s judgment and the costs of this appeal from appellant Bulldog Ironworks, LLC. and
from SureTec Insurance Company as surety on appellant’s supersedeas bond.


Judgment entered November 9, 2012.                                //        iI

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                                                       MOSELEY
                                                /   JUSTICE
