Opinion ﬁled January 31, 2013

 

(Eleventh QEnurt of Qppeals

N0. ll—ll-OOOll-CV

STEVE STEPHENS, Appellant
V.

BECKHAM & JONES C0., Appellee
W

On Appeal from the County Court at Law
Walker County, Texas

Trial Court Cause N0. 9309CV

W

MEMORANDUM OPINION

Appellant? Steve Stephens} appeals the trial court’s bench trial judgment that appellant
pay $13,482 in damages to appellee, Beckham & Jenes C0. (Beekhami for appellantls breach of
a purchase and installation contract for a custom heating and air conditioning system that
Beckham installed at the home of Stephens’s elderly father-in—law. Appellant also appeals the
trial court’s judgment and award of $5,937.29 in reasonable and necessary attorney’s fees and

costs to Beckham. We afﬁrm.

1. Factory? and Procedurai History

Stephens contracted with Beckham for the purchase and installation of a custom heating
and air conditioning system for the home of Stephens’s elderly father-in-law. Stephens signed
the contract on May 16, 2007, with a tenyear warranty beginning on June 16, 2007. Stephens
also ordered an air puriﬁer and extra zone for the system for $2,045 in addition to the purchase
and instaiiation price of $1i,301. Beckham installed the equipment in May 2007 and purchased
the ten»year warranty from Carrier, which was part of the purchase and installation contract.

Stephens’s father~in~iaw used the system that Beckham installed, but Stephens never
paid Beckham the $13,346 due under the contract. Beckham had contact with Stephens when
Beckham made several service calls to Stephens’s residence to repair a separate HVAC system
that Beckham had instaiied in 2005. During those service calls to Stephens’s residence,
Beckham was never informed of any probiems with the system that it had installed at the fathers
iii-law’s residence.

Beckham requested payment from Stephens and demanded payment in November 2007.
Stephens alleged that the system at his father—in~law’s house was not operating properly, but
never provided any speciﬁc complaint. Stephens alleged that he had paid $2,333.85 to get the
system working at his father-in-Iaw’s residence, but the evidence showed that those repairs were
actually invoices for another unit. Stephens refused to pay the amount due under the contract.

Beckham ﬁled suit on April 3, 2008. Later, Beckham ﬁled a summary judgment motion,
and the trial court granted it. Subsequently, Stephens ﬁled a motion for new trial, and the court
granted it. The trial court called the case and completed a bench trial. The trial court entered
judgment in favor of Beckham and entered findings of fact and conclusions of law.

The triai court made the following findings of fact:

1. Defendant ordered from Piaintiff goods and services consisting of air

conditioning and heating equipment.

2. i’laintiff delivered and Defendant received the agreed upon goods and
services.

3. The prices charged were just and true because they were according to the
terms of the agreement between the parties or were the usual, customary and
reasonable prices.

4. Defendant agreed to pay the sum of $13,482.00 for the goods and services.

3. Defendant made no payments to Piaintiff for the goods and services.

6. Plaintiff incurred reasonable and necessary attorney fees and costs as a result
of Defendant’s breach of the contract between the parties.

The trial court issued the following conclusions of law:

1. Plaintiff performed, tendered performance of, or was excused from
performing its contractual obligations.

2. Defendant breached the contract.

3. Defendant’s breach caused the injury.

4. Defendant is indebted to Plaintiff for the sum of $13,482.00 for labor and
materials.

5. Plaintiff made demand for attorney’s fees in compliance with 38.001, Tex.
Civ. Prac. & Rem. Code.

6. Plaintiff is entitled to reasonable and necessary attorney’s fees of $5,937.29,
being $5,558.00 for services and $379.29 in costs incurred in performance of
legal services related to the suit.

7. All conditions precedent to Plaintiff‘s right of recovery have occurred.

8. Plaintiff is entitled to interest on the judgment at the rate of five percent
(5.0%) per annum from the date suit was ﬁled until date of judgment and at
the rate of ﬁve percent (5.0%) from date of judgment until paid.
[1. Issues
Appellant presents two issues for appeal. First, appellant complains the trial court erred
in concluding as a matter of law that appellee was excused from perfomiance because the trial
court ignored appellant’s allegations that the HVAC’ system did not work as intended and was
not installed properly. Second, appellant complains that the trial court erred in awarding
attorneys fees and costs of $5,937.29, which appellant claims were unreasonable or
unnecessary.
[1]. Standard ofReview
This Court reviews a legal sufficiency argument utilizing both an inclusive and exclusive
rte-evidence standard as set forth in City of Keller v. Wilson, l68 S.W.3d 802 (Tex. 2005).

Under either scope of review, appellate courts must View the evidence in the light favorable to

the verdict. crediting favorable evidence if reasonable jurors could and disregarding contrary
evidence unless reasonable jurors could not. 1d. at 807.

A trial court’s findings of fact in a bench trial are reviewed for legal and factual
sufﬁciency under the same standards that are used to review a jury’s verdict on jury questions.
Paint Rock Operating. LLC v. Chisholm Epooration, Inc, 339 S.W.3d 771. 774 (Tex. App.“
Eastiand 2011. no pet.) (citing Kenmore v. McGraw, 281 S.W.3d 648,. 650 (Tex. Apn.~Eastland
2009. no pet.)). In reviewing a factual sufﬁciency challenge. we consider all of the evidence
and uphold the ﬁnding unless the evidence is too weak to support it or the finding is so against
the overwhelming weight of the evidence as to be manifestly unjust. Id. at 774 (citing Pool 1:.
FordMoror C0,, 715 S.W.2d 629, 635 (Tex. 1986)).

The trial judge in a bench trial is the trier of fact and has the right to accept or reject all or
any part of a witness’s tendered testimony. As a trier of fact, the trial court may accept or reject
the testimony of any witness. Ream-Hydraulics Corp. ofAm. v. Specie! Equip. Eng’rs, Inc.
411 SW2d 382, 387 (Tex. CiV. Arrow-Waco 1967, writ ref’d n.r.e.) (citing Hood v. Texas
Indem. Ins. Co, 209 S.W.2d 345 (Tex. 1948)). We review the trial court’s conclusions of law
de novo. Smith v. Smith, 22 SW3d 140, 14344 (Tex. App.—~Houston [14th Dist] 2000, no
pet).

I V. Discussion and Analysis

Appellant complains that the trial court erred by making a conclusion of law that appellee
was excused from performing the contract. Actually. the trial court’s conclusion of law was in
the alternative: namely that appellee either (1) performed the contract, (2) tendered performance.
or (3) was excused from performance.

Appeliee was required to prove the foliowing at trial: (1) valid agreement or contract
between the parties with offer and acceptance, (2) performance by plaintiff. (3) breach of the
agreement or contract by defendant. and (3) damages to plaintiff as a result. Kay 12. N. Tex. Rod
& Custom. 109 SW3d 924, 927 (Tex. ApnwDallas 2003. no pet). Compensation is the
necessary result for any breach of contract in order to put the non—breaching party in the position
he or she would have been in, had the breaching party actually kept the contract. Series V. Alvis,
33 S.W.2d 814. 816 (Tex. Civ. App.-Fort Worth 1930. writ dism’d w.o.j.). In this case. the
trial court found that appellant agreed with appellee to the purchase and installation of an HVAC
system with an air purifier for the cost of $8.482. Appellee installed the H’VAC system,

purchased the ten‘year warranty, and provided warranty service on the unit, but appellant did not
pay for the goods and services as promised. Thus; the trial court found that there was a valid
contract, that appellee had performed, but that appellant had breached the contract by failing to
pay. Accordingly: the trial court awarded compensation to appellee for the damages resulting
from appellant‘s breach of the contract.

W here the trial court as factfmder has found facts that support the plaintiff’s recovery on
a correct legal theory, the judgment is upheld even if the court made an erroneous conclusion of
law as long as other conclusions of law are founded upon the court’s factual findings. Ware v.
Harkins, 228 S.W.2d 537 (Tex. Civ. App.--«Waco 1950, writ ref’ d are). We should not reverse
the judgment of a trial court Where an incorrect conclusion of law may have been included as an
alternative in the trial court’s findings of fact and conclusions of law. Pioneer Nat? Bank of
Arlington v. Bakutis, 784 S.W.2d 4403 441 (Tex. Apprort Worth 1989, no writ); Graham v.
Pazos De La Torre, 821 SW2d 162, 165 (Tex. App—wCorpus Christi 1991, writ denied). The
trial court found that appellee had both tendered performance and performed by installing the
HVAC system and securing the ten~year warranty for appellant, and appellant did not pay for
those goods and services. Appellee was entitled to full payment for those goods and services and
was awarded $13,482 for the goods and services provided. Appellant’s ﬁrst issue is overruled.

Appellant contends in his second issue that the court did not have sufﬁcient evidence to
find attorney’s fees and costs of $5,973.29. T he trial court admitted six invoices from appellee’s
counsel, Constance Decker, and a one—page summary of the fees and costs incurred. The trial
court also heard testimony from Decker on the fees that she incurred and the costs that she
charged. The court was free to believe this testimony and did so? finding that the attorney’s fees
of $5558 and costs of $379.29 for a total of $1937.29 were both reasonable and necessary in the
prosecution of this matter. Appellant’s second issue is overruled.

V. Hoiding

We hold that the trial court did not err in ﬁnding that appellee had performed the contract
and was entitled to an award of 5139482 because appellant had breached the contract by not
paying for the goods and services provided. We also hold that the trial court did not err in

awarding $5,937.29 in reasonable and necessary attorney’s fees and costs.

We affirm the trial caurt’s judgment.

MIKE WILLSON
JUSTICE

January 31, 2013

P8111613 consists of: Wright, Cl,
McCalL 1., and Willson, J.

