Opinion issued October 29, 2013




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas


                             NO. 01-12-00672-CV


  SAFECO SURETY AND C.A. WALKER CONSTRUCTION, Appellants
                                       V.
               J.P. SOUTHWEST CONCRETE, INC., Appellee


                   On Appeal from the 189th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2005-70198

                         MEMORANDUM OPINION


      This is the second appeal in this dispute between C.A. Walker Construction

and Safeco Surety (collectively “Walker”) and J.P. Southwest Concrete, Inc.

(“J.P.”). See C.A. Walker Constr. Co. v. J.P. Sw. Concrete, Inc., No. 01-07-00904-
CV, 2009 WL 884754 (Tex. App.—Houston [1st Dist.] Apr. 2, 2009, no pet.)

(mem. op.). In the first appeal, we remanded for a new trial on damages. Walker

now appeals from the trial court’s judgment on remand, which awarded J.P.

$74,193.90 in actual damages, as well as attorney’s fees and pre- and post-

judgment interest. Walker contends that the trial court erred in allowing J.P. to

present new damages theories and evidence that were precluded by our 2009

opinion in this case. It also challenges the trial court’s findings of fact and

conclusions of law and contends that the evidence is legally and factually

insufficient to support the judgment. We modify the trial court’s judgment to

exclude the award of retainage in the amount of $7,105.28, and we affirm the

judgment as modified.

                                   Background

2007 Trial and First Appeal

      Our first opinion sets forth in detail the factual background that gave rise to

this dispute. Walker was the general contractor on a Spring Branch Independent

School District construction project. J.P. was a subcontractor. In their written

contract, Walker agreed to pay J.P. $243,000 to do all the concrete work for the

project. The contract price for J.P.’s work was later revised via change orders to

$274,149.

                                         2
      When J.P. began work in September 2004, it encountered severe subsoil

obstructions that prevented it from drilling pier holes. Walker instructed J.P. to

prepare and submit written change orders to cover the removal of the obstructions.

J.P. submitted a number of written change orders, but Walker only approved some

of them.

      The contract provided that J.P. would be paid in monthly installments as the

work progressed. Accordingly, as work on the project progressed, J.P. submitted

applications for payment along with supporting documentation. As of December

2004, J.P. had been paid $57,349.25. In January 2005, J.P. requested further

payment of $79,796. Later, J.P. sought payment of $17,099 for work done in

February 2005. On March 16, 2005, Walker paid J.P. $84,756.35. In exchange for

that payment, J.P.’s president, Jeff Pantle, executed a “Subcontractor Affidavit of

Payment and Partial Release of Lien” on behalf of J.P. The release states that the

payment received on March 16, 2005 “constitutes full payment for the work

performed to date and any and all change orders or claims for additional work

performed.” The release further provides:

      Subcontractor waives, releases, relinquishes and discharges all known
      and unknown causes of action, including, but not limited to those
      arising out of contract, by statute, in tort or otherwise, and waives,
      releases, relinquishes and agrees to discharge any suits, debts,
      accounts, bonds, contracts, promises, damages, liens, encumbrances,
      judgments, claims and demands whatsoever, in law or equity, which
                                        3
      are against the Contractor . . . that the Subcontractor now has or might
      hereinafter obtain that relates directly or indirectly to the aforesaid
      relationship, Contract, and/or Project.

      J.P.’s work on the project continued after it entered into the release. Walker

told J.P. that subsoil debris and obstructions had been removed and requested it

continue drilling pier holes. J.P. went to the site, bringing with it another drilling

subcontractor, but was unable to perform the work due to subsoil debris and

obstructions. J.P.’s last day at the site was March 22, 2005. Walker acknowledged

that it owed J.P. for work that was done after March 16, but contended the amount

owed was only $2,848.

      For several months, J.P. attempted to collect payment from Walker. J.P.

eventually sued for breach of contract, and Walker counterclaimed. In its pre-trial

disclosures and at the 2007 bench trial, J.P. asserted that it was entitled to recover

the following damages: $19,501 for unpaid work and $58,000 for lost profits, for a

total of $77,501.

      However, in its motion for entry of judgment filed several weeks after trial,

J.P. sought new and different damages. The motion asserted J.P. was entitled to

recover damages in the amount of $74,059.52, consisting of the following:

      • $17,099 for unpaid contract work in February 2005;

      • $21,748.52 for unpaid contract work in March 2005;

                                          4
        • $8,389 for retainage;

        • $26,823 for extra work completed for unsigned change orders; and

        • $3,600 for attorney’s fees J.P. paid Transit Mix, another
          subcontractor on the project, after Transit Mix sued J.P. to recover
          payment for supplies Transit Mix provided for the project.

In addition, instead of the $58,000 originally sought for lost profits, J.P. requested

a lost profits award of $26,499.05. The trial court rendered judgment, awarding

J.P. $47,000 in damages, but did not indicate how it reached that figure. It entered

no findings of fact or conclusions of law.

        In Walker’s first appeal, we reversed the trial court’s damages award, but

otherwise affirmed the judgment. We held that J.P. released all claims for any

amounts due for work performed before March 16, 2005 by signing the March 16,

2005 release and that “any lost profits incurred before March 16, 2005 are not

properly included in the award.” C.A. Walker Constr. Co., 2009 WL 884754, at

*5–6.    With respect to lost profits, we concluded that J.P. failed to present

“objective facts, figures, or data from which the amount of lost profits can be

ascertained” and that therefore “the evidence [was] factually insufficient to support

an award of lost profits.” Id. at *6. In addition, we held that J.P. was not entitled

to “any damages for a suit filed against J.P. by Transit Mix for services or

materials, or the attorney’s fees incurred by Transit Mix and paid by J.P,” because

                                             5
the plain language of the parties’ contract excused Walker from paying any

damages for a suit filed against J.P. Id. at *7. Finally, we held that Texas Rule of

Civil Procedure 193.6 precluded J.P.’s recovery of damages that had not been

disclosed before trial. TEX. R. CIV. P. 193.6, 194.2(d); C.A. Walker Constr. Co.,

2009 WL 884754, at *7. We concluded that the trial court erred in awarding

$47,000 in damages, “because the figure could not have been reached without

taking into consideration amounts that were disclaimed by the release, were for lost

profits, were for Transit Mix’s lawsuit, or were not properly disclosed before post

trial.”    C.A. Walker Constr. Co., 2009 WL 884754, at *8. Accordingly, we

remanded the case to the trial court “for the limited purpose of conducting a new

trial on the issue of damages.” Id. at *8.

New Trial on Damages and Second Appeal

          On remand, Walker moved for summary judgment, asking the trial court to

enter judgment awarding J.P. $2,848 in damages. Walker contended this was the

only amount supported by evidence that had not been rejected by this Court’s

opinion. The trial court denied the motion.

          Before the retrial, J.P. timely supplemented its responses to Walker’s

requests for disclosure and disclosed an expert witness.         The supplemental

responses reflected J.P.’s intent to seek damages in the amount of $38,000 for

                                             6
unpaid labor, services, goods, and materials for work that J.P. performed between

March 16, 2005 and March 22, 2005, $10,355 for retainage, and $48,355 for lost

profits. J.P. also timely designated Lane Parish as a testifying expert on lost

profits, produced Parish’s report, served new discovery requests on Walker, and

sought an additional deposition. Walker objected to the supplementation and new

discovery on the grounds that they were precluded by our opinion, but the trial

court permitted them. Walker propounded no discovery and did not seek to depose

Parish.

      The trial court held a bench trial on damages. At the trial, Walker objected

to the admission of new evidence of damages disclosed on remand, but the trial

court overruled Walker’s objections.

      At trial, Pantle testified about the work J.P. performed for Walker between

March 16, 2005 and March 22, 2005. He testified about the number of employees

that were on site on each day, the work they performed, the tools, materials, and

equipment that were used each day, and the cost for each. He testified that the

total amount due for work performed on those dates was $30,422.23.

      Pantle also testified that J.P. was seeking $7,105.28 in damages for

retainage. Under the parties’ contract, Walker would pay J.P. progress payments

equal to 95% of the value of J.P.’s work but retain the other five percent as

                                        7
retainage until the end of the term of the contract. Pantle testified that J.P. was

owed the retainage for work performed through March 16, $7,105.28.

       J.P.’s expert, Lane Parish, testified that J.P. was entitled to lost profits in the

amount of $36,642.39. Parish testified that he used information from the start date

to the end date of the job to calculate J.P.’s “job profit percentage.” To determine

that percentage, he subtracted the cost of the work performed through March 16

from the total amount J.P. was paid for that work plus five percent retainage, and

then divided that gross profit by the total amount paid plus five percent retainage.

This yielded a job profit percentage of 27.75%. Parish then applied this percentage

to the outstanding total contract amount that was reflected on the March 16, 2005

release, $132,043.40, and this yielded a lost profit figure of $36,642.39.

       The trial court signed a final judgment awarding damages to J.P. in the

amount of $74,193.90, carrying forward the award of attorney’s fees awarded in

the first judgment and awarding fees for the new trial and conditional appellate

fees, and awarding pre- and post-judgment interest. The trial court also entered

findings of fact and conclusions of law. According to the trial court’s findings of

fact, the $74,193.90 damages award is comprised of $30,442.23 for unpaid labor,

goods, services, and materials, $7,105.28 for retainage, and $36,646.39 in lost

profits.

                                            8
                      Law of the Case and Scope of Remand

      In its first issue, Walker argues that our first opinion and the law of the case

doctrine precluded the trial court’s consideration of new damages theories and

evidence that had not been disclosed before the first trial on the merits.

   A. Applicable Law

      When we remand a cause to the trial court for a new trial, the remand is

generally unlimited in scope and the cause is reopened in its entirety. See Cedillo

v. Gaitan, 981 S.W.2d 388, 390 (Tex. App.—San Antonio 1998, no pet.). We may

limit our remand to include only certain issues, as stated in the mandate. Cessna

Aircraft Co. v. Aircraft Network, LLC, 345 S.W.3d 139, 144 (Tex. App.— Dallas

2011, no pet.) (“When an appellate court remands a case with specific instructions,

the trial court is limited to complying with the instructions and cannot re-litigate

issues controverted at the former trial.”). The scope of the remand is determined

by referring to both the appellate opinion and to the mandate itself. See Hudson v.

Wakefield, 711 S.W.2d 628, 630 (Tex. 1986) (in interpreting mandate of appellate

court, “courts should look not only to the mandate itself, but also to the opinion of

the court”).

      Under the law of the case doctrine, “questions of law decided on appeal . . .

will govern the case throughout its subsequent stages” and therefore “a court of

                                          9
appeals is ordinarily bound by its initial decision if there is a subsequent appeal in

the same case.” Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003);

Hudson, 711 S.W.2d at 630. “By narrowing the issues in successive stages of the

litigation, the law of the case doctrine is intended to achieve uniformity of decision

as well as judicial economy and efficiency.” Briscoe, 102 S.W.3d at 716 (quoting

Hudson, 711 S.W.2d at 630). The law of the case applies only to questions of law

and does not apply to questions of fact. Hudson, 711 S.W.2d at 630.

   B. Analysis

      Our first opinion stated that we were remanding the case “for the limited

purpose of conducting a new trial on the issue of damages.” C.A. Walker Constr.

Co., 2009 WL 884754, at *8. Our mandate stated that the cause was remanded

“for the limited purpose of conducting a new trial on the issue of the amount of the

amount [sic] of damages.” We otherwise affirmed the judgment of the trial court.

Walker argues that the trial court exceeded the scope of the remand in three ways.

First, Walker argues that our original opinion precluded J.P. from introducing

evidence of damages that had not been disclosed before the first trial. Second,

Walker argues that our holding that the release bars J.P. from recovering damages

for work performed before March 16, 2005 also bars J.P. from recovering an award

of retainage attributable to work performed during that period of time. Third,

                                         10
Walker argues that the trial court impermissibly entered findings of fact and

conclusions of law regarding matters beyond the limited scope of the remand. We

address these issues in turn.

      1. Does Rule 193.6 preclude J.P. from seeking damages in amounts that
         had not been disclosed before the first trial?

      Walker urges that this Court’s holding that Rule 193.6 precluded J.P. from

recovering damages not disclosed before the first trial became the “law of the

case,” and, therefore, J.P. was limited on remand to recovering only the amount of

damages disclosed before the first trial. We disagree. When a new trial is ordered,

the case is reopened in its entirety except to the extent that any limiting instructions

are provided. See Hudson, 711 S.W.2d at 630; Manon v. Solis, 142 S.W.3d 380,

386 (Tex. App.—Houston [14th Dist.] 2004, pet. denied); Cedillo, 981 S.W.2d at

390. Here, the new trial was limited to the issue of damages, but it was not

otherwise limited, and J.P. was therefore not precluded, in the trial court’s

discretion, from amending its disclosures or seeking additional discovery on

remand. See Dillard Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995)

(scope of discovery is within the trial court’s discretion); Hudson, 711 S.W.2d at

630; Manon, 142 S.W.3d at 386; Cedillo, 981 S.W.2d at 390.

      Walker argues that “[t]he punitive impact of the exclusionary mandate set

forth in rule 193.6 would be eviscerated” if parties are permitted to introduce new
                                          11
evidence after remand for a new trial. However, on remand for a new trial, the

case is again in a pre-trial posture. And as we explained in our previous opinion,

the purpose of Rule 193.6 “is to prevent trial by ambush” by requiring a party to

“make, amend, or supplement a discovery response in a timely manner.” C.A.

Walker Constr. Co., 2009 WL 884754, at *7 (quoting Harris Cnty. v. Inter Nos,

Ltd., 199 S.W.3d 363, 367 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Walker

does not argue that J.P. failed to disclose its damage model before the retrial.

Accordingly, J.P. was not precluded by Rule 193.6 from adducing on remand

damages evidence that had not been disclosed before the first trial.

      We overrule this subpart of Walker’s first issue.

      2. Does the release preclude J.P.’s recovery of the retainage award?

      Walker next contends that our holding that the release bars J.P.’s recovery

for amounts it is owed on account of pre-March 16, 2005 work is the law of the

case, and it bars J.P. from recovering the retainage due on J.P.’s pre-March 16

work. See Hudson, 711 S.W.2d at 630. We agree. In the first appeal, we

concluded that “by signing the release, J.P. acknowledged it was fully paid for all

work it had performed as of March 16, 2005.” C.A. Walker Constr. Co., 2009 WL

884754, at *5. Accordingly, J.P. cannot recover for any amounts attributable to

work performed as of March 16, 2005.

                                         12
      Walker argues that the $7,105.28 retainage award is attributable to work

performed before March 16, 2005, and it is therefore unrecoverable. The record

demonstrates that the amount the trial court awarded for retainage, $7,105.28, is

five percent of $142,105.60, which is the amount J.P. had been paid as of March

16, 2005.

      J.P. nevertheless contends it is not barred from recovering this retainage,

because J.P. was not entitled to collect it until Walker made the final payment due

under the contract. Accordingly, J.P. argues that its right to receive the retainage

had not arisen as of March 16, 2005, and therefore the March 16, 2005 release

could not operate as a release of the retainage.

      The March 16, 2005 release is broad. It states that the payment received on

that date “constitutes full payment for the work performed to date and any and all

change orders or claims for additional work performed.” It also states that J.P.

waived, released, relinquished, and discharged all debts, claims and demands

“whatsoever, in law or equity, which are against [Walker] . . . that [J.P.] now has

or might hereinafter obtain that relates directly or indirectly to the abovesaid

relationship, Contract, and/or Project.” (Emphasis added). It does not expressly

carve out unpaid retainage, and it does expressly release even those claims that

would arise in the future, provided they related to pre-March 16 work. The plain

                                          13
language of the release thus bars recovery of the retainage award. And we have

already held that “by signing the release, J.P. acknowledged it was fully paid for all

work it had performed as of March 16, 2005.” Id. at *5. Accordingly, we hold

that the trial court erred in awarding J.P. the five percent retainage for work

performed on or before March 16. See Briscoe, 102 S.W.3d at 716 (court of

appeals is bound by its initial decision if there is a subsequent appeal in the same

case); see also Keck, Mahin & Cate v. Nat’l Union Fire Ins. Co., 20 S.W.3d 692,

698 (Tex. 2000) (broad release releases all claims pertaining to subject matter).

      We sustain Walker’s first issue with respect to the $7,105.28 award of

retainage.

      3. Findings of Fact and Conclusions of Law

      Walker complains that the trial court entered findings of fact and

conclusions of law regarding matters outside the scope of our remand.

Specifically, Walker complains that the trial court entered findings and conclusions

related to liability, and it did not limit its findings and conclusions to the issue of

damages. But we cannot ascertain, and Walker does not explain, how, if at all,




                                          14
these findings and conclusions caused the rendition of an improper judgment. * See

TEX. R. APP. P. 44.1(a); McWhorter v. Sheller, 993 S.W.2d 781, 786 (Tex. App.—

Houston [14th Dist.] 1999, pet. denied) (overruling issue regarding alleged errors

in findings of fact and conclusions of law where party did not explain how alleged

errors caused the rendition of an improper judgment).

      We overrule this subpart of Walker’s first issue.

                          Factual and Legal Sufficiency

      In its second issue, Walker contends that the evidence is legally and

factually insufficient to support the trial court’s judgment, findings of fact, and

conclusions of law.

    A. Standard of Review

      In an appeal from a bench trial, we review a trial court’s conclusions of law

de novo. Zenner v. Lone Star Striping & Paving, L.L.C., 371 S.W.3d 311, 314

(Tex. App.—Houston [1st Dist.] 2012, pet. denied) (citing BMC Software Belgium,

*
      To the extent that Walker is complaining here about the trial court’s award to J.P.
      of attorney’s fees for the first appeal in the second judgment, we note that in the
      first appeal, in addition to remanding the cause for a new trial on damages, this
      Court affirmed the trial court’s take-nothing judgment against Walker as well as
      the remainder of the judgment, which held Walker liable for breach of contract.
      C.A. Walker Constr. Co. v. J.P. Sw. Concrete, Inc., No. 01-07-00904-CV, 2009
      WL 884754, at *8 (Tex. App.—Houston [1st Dist.] Apr. 2, 2009, no pet.) (mem.
      op.). Under these circumstances, the trial court did not abuse its discretion in
      awarding attorney’s fees for the first appeal to J.P. See Weaver v. Jamar, 383
      S.W.3d 805, 813 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (award of
      attorney’s fees for breach of contract is reviewed for abuse of discretion).
                                          15
N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002)). We will uphold the

conclusions on appeal if the judgment can be sustained on any legal theory

supported by the evidence. Id. at 314–15. A trial court’s conclusions of law may

not be challenged for factual sufficiency of the evidence, but we may review the

legal conclusions drawn from the facts to determine their correctness. Id. at 314.

       In an appeal from a bench trial, the trial court’s findings of fact have the

same weight as a jury verdict. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.

1994); Nguyen v. Yovan, 317 S.W.3d 261, 269–70 (Tex. App.—Houston [1st Dist.]

2009, pet. denied). We review a trial court’s findings of fact under the same legal

and factual sufficiency of the evidence standards used when determining whether

sufficient evidence exists to support an answer to a jury question. Catalina, 881

S.W.2d at 297; Nguyen, 317 S.W.3d at 270.

       The test for legal sufficiency is “whether the evidence at trial would enable

reasonable and fair-minded people to reach the verdict under review.” City of

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In making this determination,

we credit evidence favoring the findings if a reasonable factfinder could and

disregard contrary evidence unless a reasonable factfinder could not. See id. at

822.   Although we consider the evidence in the light most favorable to the

challenged findings, indulging every reasonable inference that supports them, we

                                         16
may not disregard evidence that allows only one inference. Id. at 822.

      In reviewing a factual sufficiency issue, we consider all the evidence

supporting and contradicting the finding. Plas—Tex, Inc. v. U.S. Steel Corp., 772

S.W.2d 442, 445 (Tex. 1989). We set aside the verdict only if the finding is so

contrary to the overwhelming weight of the evidence as to be clearly wrong and

unjust. Pitts & Collard, L.L.P. v. Schechter, 369 S.W.3d 301, 312 (Tex. App.—

Houston [1st Dist.] 2011, pet. dism’d by agr.) (citing Cain v. Bain, 709 S.W.2d

175, 176 (Tex. 1986)).

      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. City of Keller, 168 S.W.3d at

819; Salomon v. Lesay, 369 S.W.3d 540, 549 (Tex. App.—Houston [1st Dist.]

2012, no pet.).    The factfinder may believe or disbelieve the testimony of a

witness, in whole or in part, and it may resolve any inconsistencies in a witness’s

testimony. Salomon, 369 S.W.3d at 549. We may not pass upon the witnesses’

credibility or substitute our judgment for that of the factfinder, even if the evidence

would clearly support a different result. Maritime Overseas Corp. v. Ellis, 971

S.W.2d 402, 407 (Tex. 1998).

   B. Analysis

      In its second issue, Walker argues that the evidence presented at the new

                                          17
trial on damages was legally and factually insufficient to support the judgment.

First, Walker argues that the trial court erroneously admitted Exhibit 33, a

compilation of J.P.’s business records supporting its claim for damages for unpaid

work and for lost profits, and that, without Exhibit 33, insufficient evidence

supports the award of $30,442.23 for unpaid labor, goods, services, and materials

and the award of $36,646.39 for lost profits. Walker next argues that Parish’s lost

profits calculation was impermissibly based on work performed and amounts paid

for work performed before March 16, 2005 and was based on unreliable evidence.

Walker also argues that the trial court abused its discretion in considering

testimony by Pantle that contradicted his testimony in the 2007 trial. Finally,

Walker contends that the trial court abused its discretion in admitting testimony on

attorney’s fees that had not been disclosed before the new trial on damages. We

address each contention in turn.

      1. Exhibit 33

      Walker asserts that the trial court erred in admitting Exhibit 33, a

compilation of J.P.’s records reflecting the costs J.P. incurred on the project.

Exhibit 33 was admitted as a business record and sponsored by J.P.’s president,

Pantle, who testified that the documents within Exhibit 33 supported J.P.’s claim

for unpaid work. Relying on Texas Rule of Civil Procedure 193.6, Walker argues

                                        18
that Exhibit 33 should have been excluded, because it was not timely disclosed.

J.P. agreed that the documents that made up Exhibit 33 were not produced to

Walker before trial, but argued that Walker knew that the documents existed, were

being relied upon by J.P.’s lost profits expert, and were available for review at

J.P.’s counsel’s office if Walker had asked to review them.

      A party’s failure to provide complete responses to discovery results in

automatic exclusion of the evidence, unless the trial court finds good cause or lack

of unfair surprise or prejudice. TEX. R. CIV. P. 193.6; see Dyer v. Cotton, 333

S.W.3d 703, 717 (Tex. App.—Houston [1st Dist.] 2010, no pet.); Norfolk S. Ry.

Co. v. Bailey, 92 S.W.3d 577, 580–81 (Tex. App.—Austin 2002, no pet.). The

burden of establishing good cause, lack of unfair surprise, or lack of unfair

prejudice is on the party seeking to introduce the evidence or call the witness.

TEX. R. CIV. P. 193.6(b); Dyer, 333 S.W.3d at 717. The trial court has discretion in

determining whether good cause or lack of unfair surprise exists. TEX. R. CIV. P.

193.6(b); Dyer, 333 S.W.3d at 717.

      Here, Walker contends that pre-trial disclosure of the documents in Exhibit

33 was required by Rule 194.2(f)(4)(A). That rule required J.P. to disclose “all

documents, tangible things, reports, models, or data compilations that have been

provided to, reviewed by, or prepared by or for the expert in anticipation of the

                                        19
expert’s testimony.” TEX. R. CIV. P. 194.2(f)(4)(A). Parish, J.P.’s expert, relied

upon the documents in Exhibit 33. Indeed, Parish included these documents as

exhibits to his report. His report, which was timely disclosed to Walker, makes

clear that Parish relied on the documents and that the documents were supposed to

be attached to Parish’s report as exhibits. Walker argues for exclusion on the basis

that it did not receive the exhibits to Parish’s report. But the information disclosed

by J.P. alerted Walker of the existence of the documents, the fact that they were

relied upon by Parish, and the fact that they should have been attached to Parish’s

report, and Walker nevertheless failed to notify J.P. that, in fact, the documents

were not attached as exhibits to Parish’s report. On this record, we hold that the

trial court did not abuse its discretion in concluding that Walker was not unfairly

surprised or unfairly prejudiced by the untimely disclosure and therefore, the trial

court did not abuse its discretion in admitting Exhibit 33. See Williams v. Cnty. of

Dallas, 194 S.W.3d 29, 33 (Tex. App.—Dallas 2006, pet. denied) (no abuse of

discretion in admitting undisclosed documents supporting damages where face of

pleading indicated that such damages would be sought at trial); see also Marin v.

IESI TX Corp., 317 S.W.3d 314, 323–24 (Tex. App.—Houston [1st Dist.] 2010,

pet. denied) (exhibits admitted through fact witness were not required to be

produced in response to Rule 194.2(f) disclosure request and were not subject to

                                         20
exclusion under Rule 193.6).

      We overrule Walker’s complaint about the admission of Exhibit 33.

      2. Lost Profits

      The rule concerning recovery of lost profit damages is “well established:”

      Recovery for lost profits does not require that the loss be susceptible
      of exact calculation. However, the injured party must do more than
      show that they suffered some lost profits. The amount of the loss must
      be shown by competent evidence with reasonable certainty. What
      constitutes reasonably certain evidence of lost profits is a fact
      intensive determination. As a minimum, opinions or estimates of lost
      profits must be based on objective facts, figures, or data from which
      the amount of lost profits can be ascertained. Although supporting
      documentation may affect the weight of the evidence, it is not
      necessary to produce in court the documents supporting the opinions
      or estimates.
ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 876 (Tex. 2010) (quoting

Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex. 1992)). Here, the

trial court awarded $36,646.39 in lost profits, based on the testimony of J.P.’s lost

profits expert, Lane Parish.

      Walker argues that the lost profit award is improper in light of the release

and our earlier opinion, because Parish “admitted that his analysis and calculations

included amounts related to work performed prior to March 16, 2005.” The record

reflects that Parish calculated J.P.’s lost profits by determining J.P.’s profit margin

on the project during the first several months and then applying that percentage to

the outstanding total contract amount, $132,043.40. This yielded a lost profits
                                       21
calculation of $36,642.39.

      We agree with Walker that, based on our prior opinion, any pre-March 16

lost profits may not be awarded to J.P. However, Parish testified that he only used

pre-March 16 billing and cost data to determine J.P.’s “job profit percentage” on

the project.   He multiplied the percentage by the contract amount that was

outstanding as of March 16, 2005 to ascertain the amount of profit J.P. would have

earned had it performed all of the work contemplated by the contract.

Accordingly, the record does not support Walker’s contention that Parish’s lost

profits calculation awards J.P. damages for pre-March 16 lost profits.

      Walker also argues that Parish’s lost profits testimony was unreliable.

Walker was required to raise this objection before trial or when the testimony was

offered. See City of San Antonio v. Pollock, 284 S.W.3d 809, 816–17 (Tex. 2009).

Walker did object to the admission of Parish’s testimony at trial, but only on the

grounds that Parish should not be permitted to testify given the limited scope of the

remand. Accordingly, we hold this complaint is not preserved for our review. See

Pollock, 284 S.W.3d at 816–17.

      Walker does not complain that the evidence of lost profits is otherwise

insufficient to support the lost profits award, and we conclude that it is. Parish

testified in detail about the manner in which he determined J.P.’s profit margin,

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and the post-March 16 lost profits figure. His conclusions were supported by

Exhibit 33. Accordingly, we hold the lost profits evidence is “reasonably certain”

and therefore legally and factually sufficient to support the lost profits award of

$36,646.39. Swinnea, 318 S.W.3d at 876 (recovery for lost profits does not require

that the loss be susceptible of exact calculation, but must be shown by reasonably

certain evidence); Anthony Equip. Corp. v. Irwin Steel Erectors, Inc., 115 S.W.3d

191, 204–05 (Tex. App.—Dallas 2003, pet. dism’d) (application of profit margin

percentage to anticipated total project amount indicated with reasonable certainty

the amount of lost profits).

      3. Pantle’s testimony supporting unpaid work award

      The trial court awarded J.P. $30,442.23 for work performed between March

16, 2005 and March 22, 2005. This was based on the testimony of J.P.’s president,

Pantle. Walker argues that the trial court abused its discretion when it awarded this

amount based on Pantle’s testimony, because Pantle’s testimony was not credible

as a matter of law and it is therefore legally and factually insufficient to support the

award. Walker argues that Pantle testified unequivocally in the 2007 trial that J.P.

was owed only $19,501 for unpaid work, but on remand, Pantle testified that J.P.

was entitled to a higher amount. Walker argues that this conflict makes Pantle’s

testimony on remand insufficient to support the award for unpaid work.

                                          23
      Pantle testified on remand that the $19,501 figure he offered at the first trial

included amounts for February but not March. He clarified that he mistakenly

confused damages for unpaid work with lost profits damages during the first trial.

In addition, Pantle’s testimony regarding the value of unpaid work was supported

by J.P.’s invoices, ledgers, checks, and other business records reflecting the value

of J.P.’s work performed between March 16, 2005 and March 22, 2005.

      The trial court is the sole judge of Pantle’s credibility and the weight to be

given his testimony. City of Keller, 168 S.W.3d at 819; Salomon, 369 S.W.3d at

549. The trial court could believe or disbelieve Pantle’s testimony, in whole or in

part, and it was entitled to resolve any inconsistencies in Pantle’s testimony.

Salomon, 369 S.W.3d at 549. We will not disturb the trial court’s determination

that Pantle’s testimony was credible. City of Keller, 168 S.W.3d at 819; Ellis, 971

S.W.2d at 407; Salomon, 369 S.W.3d at 549. We hold that legally and factually

sufficient evidence supports the trial court’s finding that J.P. was entitled to

recover $30,442.23 for unpaid work.

      4. Attorney’s Fees

      Walker argues that the trial court abused its discretion in admitting

testimony on attorney’s fees that had not been disclosed before the new trial.

Walker contends that “Texas Rules of Civil Procedure 193.6 and 194.2 required

                                         24
disclosure of the amount and any method of calculating damages.”             Walker

apparently contends that evidence supporting a claim for attorney’s fees, like “the

amount and any method of calculating economic damages,” must be disclosed

under the timeframe prescribed in rule 194.2(d). See TEX. R. CIV. P. 194.2(d).

However, where, as here, attorney’s fees are not sought as an element of damages,

they are not economic damages and are therefore not required to be disclosed in

accordance with rule 194.2(d). See Carter v. Flowers, No. 02-10-00226-CV, 2011

WL 4502203, at *4 (Tex. App.—Fort Worth Sept. 29, 2011, no pet.) (mem. op.)

(“Attorney’s fees are not economic damages and are therefore not required to be

disclosed under rule 194.2(d).”); Shafer v. Gulliver, No. 14-09-00646-CV, 2010

WL 4545164, at *11 (Tex. App.—Houston [14th Dist.] Nov. 12, 2010, no pet.)

(mem. op.) (holding that Rule 194.2(d) did not require plaintiffs to disclose method

of calculating attorney’s fees). And, Walker agrees that J.P. properly designated

its attorney as a testifying expert on fees pursuant to Texas Rule of Civil Procedure

194.2(f) and made the disclosures required by that provision. Walker does not

otherwise challenge the sufficiency of the evidence to support the award of

attorney’s fees.    Accordingly, we hold the evidence is legally and factually

sufficient to support the trial court’s fee awards.

      We overrule Walker’s second issue.

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                                   Conclusion

      We modify the trial court’s judgment to exclude the award of $7,105.28 for

retainage and affirm the judgment as modified.




                                            Rebeca Huddle
                                            Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




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