      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00055-CV



                 Wallace Roofing, Inc. and Royce Dean Wallace, Appellants

                                                 v.

                                    Linda Benson, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
      NO. D-1-GN-09-002685, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Wallace Roofing, Inc. (Wallace Roofing) brought suit against appellee

Linda Benson (Benson) for breach of contract alleging she had failed to pay money owed

on a contract for roofing and home repairs. Benson brought counterclaims under the Texas Debt

Collection Practices Act (TDCPA), a tie-in statute to the Deceptive Trade Practices Act (DTPA),

alleging that Wallace Roofing’s unlawful debt collection practices had caused her mortgage company

to cancel a closing on a loan to refinance the mortgage on her homestead. After a two-day bench

trial, the trial court found in favor of Wallace Roofing on its breach of contract claim and awarded

$255.77 in damages, but also found in favor of Benson on her counterclaims and awarded her

$20,000 in damages and $25,000 in attorneys’ fees. See Tex. Bus. & Com. Code §§ 17.01–17.926.

Wallace Roofing appeals, contending: (1) there is insufficient evidence to support the trial court’s

damages award for either party; (2) there is insufficient evidence to support the trial court’s

finding that Wallace Roofing knowingly violated the DTPA; (3) the trial court erred in denying
its claim to foreclose on a constitutional lien against Benson’s homestead; and (4) the trial court

abused its discretion in denying Wallace Roofing’s claim for attorneys’ fees. We affirm the

trial court’s judgment.


                                        BACKGROUND

               On June 14, 2005, Benson entered into a contract with Wallace Roofing to

repair the roof on her home after an agent for the company visited her home unsolicited and

obtained permission to inspect her roof for storm damage. The contract triggered an initial check

from Benson’s home insurer in the amount of $5,655.77. The check was made payable to Benson,

but Benson testified that her insurer instructed her to deposit the check and then pay the sum

to Wallace Roofing with personal checks as payments were due. Benson deposited the check,

but Wallace Roofing did not contact her again until September, when a second agent for the

company—Jeff Anthony—visited her home and informed her she would need to renegotiate her

contract because the prior agent who had negotiated her contract was no longer with the company.

               Benson signed a second contract with Wallace Roofing on September 1, 2005, which

was executed by Jeff Anthony in his capacity as an authorized agent for Wallace Roofing. The

second contract was written on the same pre-printed Wallace Roofing form as the first contract but

contained additional work items for painting and repairing the gutters, deck, and window screens.

In addition, the second contract contained a hand-written notation that Benson agreed to pay “per

the claims adjustor agreement” and that the “contract is null and void unless insurance carrier pays

100% for all storm damage.” Benson testified Anthony wrote the notations after she informed him

she was unemployed and could not afford to pay her deductible, and he promised Wallace Roofing




                                                 2
would waive her deductible and she would not pay any out-of-pocket expenses. Benson additionally

signed a form giving Wallace Roofing the authority to directly negotiate with her insurance carrier.

               After Benson signed the second contract, her home insurer issued two additional

checks for her claim in the amounts of $9,012.60 and $2,349.33. In total, including its initial

payment to Benson for $5,655.77, Benson’s home insurer paid $17,017.70 for the claim.1 With

regard to the last two insurance checks, it is undisputed that these checks were made payable to and

deposited by Wallace Roofing. In dispute, however, was whether Benson paid Wallace Roofing the

$5,655.77 from the initial insurance check and whether she owes Wallace Roofing the additional

$3,300, i.e., the amount of the deductible under her policy.


1.     Payments Made by Benson

               With regard to the initial insurance check for $5,655.77 deposited by Benson, both

parties agree she paid from that check the following contract-related expenses: (1) a personal check

Benson wrote to Wallace Roofing in the amount of $3,500; and (2) $300 spent by Benson for

supplies and other contract expenses. The parties, however, disagreed at trial as to whether Benson

should receive credit for two personal checks in the amounts of $1,300 and $300 which she

made payable to Wallace Roofing’s agent, Jeff Anthony, with the notation “roofing.” According to

Benson, Anthony presented her with invoices for the roofing repairs, requested that she make the

checks payable to him personally, and presented her with a hand-written receipt reflecting the




       1
        Although Benson entered into two contracts with Wallace Roofing, no work was performed
under the first contract and her insurer processed the work as a single claim. Insurance records
show that the initial payment received and deposited by Benson was for work performed by
Wallace Roofing under the second contract.

                                                 3
payments. Wallace Roofing denied ever receiving the receipt or checks but admitted at trial that it

was aware Anthony had collected and failed to turn over payments from other clients.


2.     Notice of Outstanding Debt

               The parties also dispute whether Wallace Roofing gave Benson notice of any

remaining debt under the contract. In December 2005, Royce Dean Wallace (Wallace), the

president and manager of Wallace Roofing, visited Benson’s home after the roof work was complete.

Benson testified that during this meeting she gave Wallace a copy of the receipt showing she had

paid $1,600 directly to Anthony for roofing expenses. According to Benson, Wallace acknowledged

the payments and made no demand for further payment. Wallace, on the other hand, testified that

Benson did inform him she had already paid Anthony $5,400 on the account but did not provide him

with the receipt or inform him the checks had been made payable to Anthony personally.

               In February 2006, Wallace again visited Benson’s home. According to Benson,

Wallace asked her for the last insurance check during this visit and then left without asking for

further payment. Wallace testified that he did ask for the insurance check, but also asked Benson

to pay the remaining balance on her account. Wallace did not testify as to the amount of money he

demanded from Benson during this exchange.

               In March 2006, a Wallace Roofing employee contacted Benson asking her to

submit an affidavit stating that she had written personal checks to Jeff Anthony for roofing repairs

made by Wallace Roofing. Benson testified that the secretary informed her the company needed

the affidavit to collect the money from Anthony. Benson testified that she signed the affidavit

and promptly sent it to Wallace Roofing. Wallace Roofing, however, claims to have no record of

receiving the affidavit.

                                                 4
               The following month, on April 20, 2006, Wallace Roofing mailed Benson a

demand letter sent certified mail, return receipt requested. The letter, however, was returned to

Wallace Roofing as “unclaimed,” and Benson denied receipt of the letter. The demand letter claimed

that Benson had a remaining balance on her account of $5,220.10. While there is dispute between

the parties as to the amount Benson owed on her contract, Wallace Roofing concedes that it

miscalculated the amount due in the demand letter by failing to credit Benson’s account with the

final payment it had received from her insurer in the amount of $2,349.33. The demand letter also

did not credit Benson’s account with the $1,600 she had paid directly to Anthony.

               On June 16, 2009, after taking no action on the account for more than three years,

Wallace Roofing filed a statutory mechanic’s lien against Benson’s homestead for $5,220.10. At

trial, Wallace Roofing admitted that the lien was filed past the statute of limitations and without

notice to Benson. Wallace Roofing also admitted at trial that—at the time it filed the lien—it had

in its possession documents showing that it had failed to credit Benson’s account with the $2,349.33

insurance check it had received. Wallace Roofing’s lien also did not credit Benson’s account with

the $1,600 she had paid directly to Anthony.


3.     Wallace Roofing’s Lawsuit and Benson’s Failed Refinance

               On August 18, 2009, Wallace Roofing filed suit against Benson for breach of contract

seeking $5,220.10 in damages. Wallace Roofing did not serve Benson with the suit. Unbeknownst

to Wallace Roofing, that same week, on August 20, 2009, Benson was scheduled to close on a

loan to refinance the existing mortgage on her homestead. Benson testified that the first time she

learned of any claim of outstanding debt to Wallace Roofing was an hour before her closing when

the mortgage company informed her that Wallace Roofing had placed a lien on the property that

                                                 5
would prevent the refinance. The loan officer for the refinance testified the sole reason the closing

was canceled was because Wallace Roofing had filed a lien against the property. After learning of

the canceled closing, Benson testified that she immediately contacted Wallace Roofing and

was informed by Wallace Roofing’s attorney that she would have to pay $5,220.10 to settle her

account and release the lien. Benson refused to pay, but after being contacted by Benson’s attorney,

Wallace Roofing agreed to release the statutory mechanic’s lien. After Wallace Roofing released

the statutory mechanic’s lien, the mortgage company agreed to move forward with the refinance and

rescheduled the closing.

               After releasing the lien, however, Wallace Roofing immediately amended their

pleadings to add a constitutional lien claim against Benson’s homestead, and on the following

day—August 21, 2009—Wallace Roofing’s attorney forwarded the amended pleading and a

notice of lis pendens to the title company.2 That same day Benson was traveling to her second

scheduled closing when the mortgage company contacted her to cancel. According to Benson,

the mortgage company informed her they would not be able to refinance her home because of

the Wallace Roofing lawsuit and the constitutional lien claim. The loan officer for the refinance

testified that the sole reason the refinance did not occur was because Wallace Roofing had filed

the lawsuit against Benson. The loan officer, however, was not aware of the specific claims at




       2
           In its findings of fact, the trial court found that Wallace Roofing sent the title company
a copy of the suit and notice of a statutory mechanic’s lien against Benson’s homestead. Wallace
Roofing complains in its third issue on appeal that it actually sent notice of its constitutional lien
claim and not a statutory mechanic’s lien. We agree. The record shows that at the time Wallace
Roofing sent the lis pendens, it had already released its statutory mechanic’s lien against Benson and
sent the lis pendens to provide notice of its newly-asserted constitutional lien claim.

                                                  6
issue in the Wallace Roofing suit and acknowledged that any lawsuit in which Benson was the

defendant—whether it was related to the property or not—could have prevented the refinance.

               After the second closing was canceled, Benson brought counterclaims against

Wallace Roofing alleging it knowingly violated the TDCPA, a tie-in statute to the DTPA, by

misrepresenting the amount of her debt and using false representations and deceptive means to

collect a debt.3 See Tex. Fin. Code §§ 392.304(a)(8),(19) (TDCPA causes of action), 392.404(a)

(violation of TDCPA is deceptive trade practice actionable as DTPA violation).              At trial,

Benson’s damages evidence rested primarily on her failed refinance. Benson testified that she

had twelve years and ten months remaining on her thirty-year mortgage and that her monthly

payment was $1,305.13. If Benson had been able to refinance, according to the good faith

estimate, she would have reduced her monthly payment to $715.61 and changed the length of her

loan to fifteen years. Accordingly, the total payment remaining on her thirty-year mortgage was

$200,990.02 (154 monthly payments x $1,305.13), but the refinance would have reduced her total

payment to $128,809.80 (180 months x $715.61). Benson further testified that she was hysterical

after the mortgage company canceled her refinance and had seen a doctor for stress and insomnia.

She testified extensively as to her financial troubles and how the refinance would have significantly

relieved her financial pressure by reducing her monthly mortgage payment. The loan officer testified

that Benson had subsequently attempted to apply for another refinance loan but did not qualify

because of new stricter lending guidelines.


       3
          Benson also alleged claims under section 392.301 of the Finance Code. See Tex. Fin. Code
§ 392.301(a)(3),(8) (prohibiting debt collector from representing to any person that a consumer is
willfully refusing to pay a nondisputed debt when consumer has notified debt collector in writing
that debt is disputed and from threatening to take an action prohibited by law). These claims were
dismissed on summary judgment.

                                                 7
4.     Judgment

               The trial court ruled in favor of Wallace Roofing on its breach of contract claim but

awarded only $255.77 in damages and no attorneys’ fees. In calculating the amount of damages, the

trial court impliedly found that Benson’s account should be credited with payments she made to

Anthony and that she was not required under the contract to pay Wallace Roofing the amount of

her deductible. For Benson’s DTPA counterclaims, the trial court found in her favor and awarded

her $15,000 in actual damages, $5,000 in emotional damages, and $25,000 in attorneys’ fees for trial

and appeal of the case. In its findings of fact, the trial court found that Wallace Roofing failed to

provide Benson notice of its claim, misrepresented the amount of debt owed, and that the scheduled

closing on Benson’s refinance was canceled due to the actions of Wallace Roofing.


                                           DISCUSSION

                                  Damages for Failed Refinance

1.     Standard of Review

               It its first and second issues on appeal, Wallace Roofing contends there is no evidence

or insufficient evidence that it committed any DTPA violation that caused Benson’s refinance to fail,

and therefore, it is not liable for any amount of damages resulting from the failed refinance. Because

Wallace Roofing attacks the legal sufficiency of an adverse finding on which it did not have the

burden of proof, it must demonstrate on appeal that there is no evidence to support the finding.

Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). “When reviewing a no-evidence point, we

must view the evidence in a light that tends to support the finding of the disputed fact and disregard

all evidence and inferences to the contrary.” Lenz v. Lenz, 79 S.W.3d 10, 13 (Tex. 2002). “Anything




                                                  8
more than a scintilla of evidence is legally sufficient to support the finding.” Continental Coffee

Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996).

               In reviewing Wallace Roofing’s factual sufficiency challenge to the trial court’s

findings, we must examine the entire record to determine if there is some probative evidence

to support the finding, and, if there is, we must determine whether the evidence supporting

the finding is so weak or the answer so contrary to the overwhelming weight of the evidence as

to be clearly wrong and manifestly unjust. McMillin v. State Farm Lloyds, 180 S.W.3d 183, 201

(Tex. App.—Austin 2005, pet. denied); see also Raw Hide Oil & Gas, Inc. v. Maxus Exploration

Co., 766 S.W.2d 264, 275 (Tex. App.—Amarillo 1988, pet. denied). We may not reverse

merely because we conclude that the evidence preponderates toward a different answer. McMillin,

180 S.W.3d at 201.


2.     Were Wallace Roofing’s DTPA violations a producing cause of Benson’s failed
       refinance?

               The DTPA allows a plaintiff who prevails on a violation based on a tie-in statute

to prove and recover any actual damages she suffers. See Tex. Bus. & Com. Code § 17.50(h).

Damages resulting from a refinance may be compensable as actual damages. See, e.g., Smith v.

Santander Consumer USA, Inc., 703 F.3d 316, 318 (5th Cir. 2012) (sufficient evidence to support

actual damages award when consumer suffered increased interest rate on refinance resulting from

consumer finance company’s erroneous credit rating report); K & N Builder Sales, Inc. v. Baldwin,

No. 14-12-00012-CV, 2013 WL 1279292, *7 (Tex. App.—Houston [14th Dist.] March 28, 2013,

pet. denied) (mem. op.) (sufficient evidence to support actual damages award for failed refinance

when plaintiff’s testimony demonstrated the loss of a specific, applied-for mortgage transaction that


                                                 9
was defeated by discovery of defendant’s invalid lien); compare Jackson Law Office, P.C.

v. Chappell, 37 S.W.3d 15, 29–30 (Tex. App.—Tyler 2000, pet. denied) (jury’s failure to find

refinance damages for DTPA violations upheld when plaintiff failed to prove interest rates on current

mortgage and refinance).

               In this case, there is sufficient evidence to support the trial court’s findings that

Benson’s refinance was canceled due to the actions of Wallace Roofing and that Benson suffered

damages. It is undisputed that Benson had applied and been approved for a specific refinance loan,

the loan would have significantly reduced Benson’s mortgage payments, she was unable to

qualify for another refinance loan because of new stricter lending guidelines, and the “sole reason”

the refinance was canceled was because of Wallace Roofing’s lawsuit and lien claims against

Benson’s homestead.

               In order to prevail on a DTPA claim, however, a party must establish that a

defendant’s specific DTPA violation was a producing cause of the claimant’s injury. See Tex. Bus.

& Com. Code § 17.50(a) (to recover damages under DTPA, deceptive trade practice must be

a producing cause of consumer’s damages); see also Doe v. Boys Clubs of Greater Dallas, Inc.,

907 S.W.2d 472, 478 (Tex. 1995). To establish producing cause, the plaintiff must show the

defendant’s DTPA violations were: (1) a substantial factor in bringing about the injury, and (2) a

cause-in-fact of the plaintiff’s injuries, such that the injury would not have occurred but for the

defendant’s acts or omissions. See Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 46 (Tex. 2007).

It is not necessary to show that an injury was foreseeable to establish producing cause. Boys Clubs

of Greater Dallas, Inc., 907 S.W.2d at 481.




                                                 10
               In this suit, Benson brought two DTPA claims against Wallace Roofing for

violations of the TDCPA: (1) misrepresenting the character, extent, or amount of a consumer

debt, or misrepresenting the consumer’s debt status in a judicial or governmental proceeding;

and (2) using any other false representation or deceptive means to collect a debt. See Tex. Fin. Code

§ 392.304(a)(8), (19). The trial court found in favor of Benson on all DTPA claims and awarded

damages, but did not make an express finding that Wallace Roofing’s DTPA violations were the

producing cause of Benson’s damages. As producing cause is an essential element for recovery on

a DTPA claim, the finding is implied. See Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d

241, 252 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (“When a court makes findings of

fact, but inadvertently omits an essential element of a ground of recovery or defense, the presumption

of validity will supply the omitted element by implication.”). Accordingly, we may set aside the

judgment only if: (1) there is no evidence that supports the trial court’s implied finding that one or

both of Wallace Roofing’s DTPA violations were a producing cause of Benson’s damages, (2) or

if the evidence supporting the finding is so weak that it is clearly wrong and manifestly unjust. See

McMillin, 180 S.W.3d at 201.

               With regard to her first claim—that Wallace Roofing misrepresented the amount

of her debt—Wallace Roofing concedes that it misrepresented the amount of Benson’s debt to

her mortgage company but argues that there is no evidence in the record that the amount of

Benson’s debt was a substantial factor in the mortgage company’s decision to cancel her refinance.

Wallace Roofing bases this argument on the testimony of the loan officer handling the refinance,

who acknowledged that “any lawsuit in which [Benson] was the defendant . . . [could] have

prevented the refinance.”


                                                 11
               On this record, however, there is sufficient evidence that Wallace Roofing’s liens and

lawsuit misrepresented the amount of debt owed, and that this discrepancy as to the amount of

Benson’s debt—as well as Wallace Roofing’s failure to give notice—were substantial factors in

Benson’s refusal to pay, which in turn resulted in Wallace Roofing’s lawsuit and her failed refinance.

See Ledesma, 242 S.W.3d at 45 (there can be more than one producing cause of an injury). Benson

testified that at the time of the refinance she had a negative balance in her checkbook and could not

pay Wallace Roofing the $5,220.10 demanded. She testified, however, that if Wallace Roofing had

demanded $1,000 instead, she could have borrowed that amount of money from her mother. As the

trial court found that Benson owed only $255.77 on her contract, we conclude there is sufficient

evidence that Wallace Roofing’s misrepresentation of the amount of Benson’s debt was a substantial

factor and cause-in-fact of her failed refinance.

               With regard to Benson’s second claim—that Wallace Roofing employed a false

representation or deceptive means to collect a debt—the trial court found that Wallace Roofing

failed to notify Benson of any outstanding debt on her account before filing, approximately three-

and-a-half years after completing its repairs, a statutory mechanic’s lien against Benson’s homestead

that Wallace Roofing admits was invalid. Upon discovery of the invalid lien, Benson’s mortgage

company canceled her first scheduled closing on her refinance. As Benson’s refinance would have

closed but for the invalid lien placed on Benson’s homestead without notice to her, we conclude

there is also sufficient evidence that the invalid lien and Wallace Roofing’s failure to give Benson

notice of the claim were also substantial factors and causes-in-fact of her failed refinance. See K &

N Builder Sales, Inc., 2013 WL 1279292, at *7 (upholding damages award for failed refinance when

mortgage transaction was defeated by bank’s discovery of defendant’s invalid lien).


                                                    12
               Having found sufficient evidence to support the trial court’s implied finding that

Wallace Roofing’s DTPA violations were a producing cause of Benson’s damages, we cannot

conclude the evidence supporting this finding is so weak or contrary to the overwhelming weight of

the evidence as to be clearly wrong and manifestly unjust. We overrule Wallace Roofing’s first and

second issues on appeal.


                                   Knowing DTPA Violation

               In its fourth and fifth issues on appeal, Wallace Roofing contends there is

insufficient evidence to support the trial court’s finding that it knowingly violated the TDCPA’s

prohibition on misrepresenting the character, extent, or amount of a consumer debt or

misrepresenting the consumer’s debt status in a judicial or governmental proceeding. See Tex. Fin.

Code § 392.304(a)(8). Because Wallace Roofing attacks the legal and factual sufficiency of an

adverse finding on which it did not have the burden of proof, it must demonstrate on appeal that

there is no or insufficient evidence to support the finding. See McMillin, 180 S.W.3d at 201.

               The DTPA provides additional damages for statutory violations that are committed

“knowingly.” See Tex. Bus. & Com. Code § 17.50(b)(1). The DTPA defines “knowingly” as

“actual awareness, at the time of the act or practice complained of, of the falsity, deception,

or unfairness of the act or practice giving rise to the consumer’s claim . . . but actual awareness

may be inferred where objective manifestations indicate that a person acted with actual awareness.”

Id. § 17.45(9). Here, Wallace Roofing represented in its statutory mechanic’s lien and pleadings

that Benson owed $5,220.10 on her roofing contract, but admitted at trial that this amount was

incorrect because it had in its possession—at the time it filed the lien and lawsuit—documents

showing that it had failed to credit Benson’s account with a $2,349.33 payment from her insurer.

                                                13
Thus, there is sufficient evidence supporting the trial court’s finding that Wallace Roofing knowingly

misrepresented the amount of Benson’s debt.

               On appeal, however, Wallace Roofing contends that the trial court erred in finding

that it knowingly misrepresented the amount of Benson’s debt because the evidence showed that

any violation was unintentional and the result of “bona fide error.” The TDCPA provides a defense

for debt collectors accused of statutory violations upon proof that the “violation was not intentional

and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably

calculated to avoid such error.” Tex. Fin. Code § 392.401. Wallace Roofing, however, had the

burden of pleading and proving bona fide error as a defense. Waterfield Mortg. Co., Inc. v.

Rodriguez, 929 S.W.2d 641, 647 (Tex. App.—San Antonio 1996, no writ); Crawford Chevrolet, Inc.

v. McLarty, 519 S.W.2d 656, 662 (Tex. Civ. App.—Amarillo 1975, no writ). Because Wallace

Roofing failed to plead bona fide error as a defense, it has waived its right to assert this defense on

appeal. Waterfield Mortgage Co., Inc., 929 S.W.2d at 647; Crawford Chevrolet, Inc., 519 S.W.2d

at 662. Further, we cannot conclude that the issue was tried by implied consent as the trial court

excluded evidence relevant to the defense after Wallace Roofing advised that it was not asserting

bona fide error as a defense. See Waterfield Mortgage Co., Inc., 929 S.W.2d at 647. Accordingly,

we conclude Wallace Roofing failed to plead and prove the defense of bona fide error and has

waived this issue on appeal. We overrule Wallace Roofing’s fourth and fifth issues on appeal.


                                    Wallace Roofing’s Damages

               In its sixth issue on appeal, Wallace Roofing contends it proved as a matter of law

it was entitled to $1,855.77 in damages for its breach of contract claim and that there is insufficient

evidence to support the trial court’s award of only $255.77 in damages.

                                                  14
1.     Contract Price

               Our first task in addressing this issue is to construe the roofing contract to determine

what payment the parties agreed Wallace Roofing would receive under the contract. The contract

provided that, upon completion of the repairs, Benson would pay Wallace Roofing “per the

claims adjuster agreement.” The term “claims adjuster agreement” is not defined in the contract.

The contract additionally contained a hand-written notation stating: “This contract is null and void

unless insurance carrier pays 100% for all storm damage.” The trial court construed the contract as

requiring Benson to pay $17,017.70, the amount paid and approved by Benson’s insurer for the

claim. Wallace Roofing, however, contends this is an incorrect interpretation of the contract and

argues the contract required Benson to pay Wallace Roofing an additional $3,300, which was the

amount of Benson’s deductible under her homeowner’s insurance policy.4 The construction of an

unambiguous contract is a question of law which we review de novo. Tawes v. Barnes, 340 S.W.3d

419, 425 (Tex. 2011).

               In determining which price governs the contract, we must ascertain and give effect

to the parties’ intentions as expressed in the contract. See Frost Nat’l Bank v. L & F Distribs., Ltd.,


       4
           Benson testified that Wallace Roofing’s agent promised to waive her deductible and
accept the insurance company’s payment as full satisfaction for the entire claim. Although the
Texas Attorney General has found this practice does not constitute insurance fraud, the legality of
such an agreement is less than clear under Texas law. See Tex. Att’y Gen. Op. No. JM-1154 (1990)
(“A situation in which a person providing a good or service does not seek payment from an insured
of the amount of his insurance deductible does not constitute a criminal offense.”); but see also
Tex. Bus. & Com. Code § 27.02 (“A person who sells goods or services commits insurance fraud
if the person advertises or promises to pay all or part of any applicable insurance deductible or a
rebate in an amount equal to all or part of any applicable insurance deductible.”); Tex. Penal Code
§ 35.02(b) (“A person commits an offense if, with intent to defraud or deceive an insurer, the person
solicits, offers, pays, or receives a benefit in connection with the furnishing of goods or services
for which a claim for payment is submitted under an insurance policy.”). As this issue was not raised
or briefed by the parties, we express no opinion as to the legality of such an agreement.

                                                  15
165 S.W.3d 310, 311–12 (Tex. 2005). “The language in an agreement is to be given its plain

grammatical meaning unless to do so would defeat the parties’ intent.” DeWitt Cnty. Elec. Coop.,

Inc. v. Parks, 1 S.W.3d 96, 101 (Tex. 1999); see Dynegy Midstream Servs., Ltd. P’ship v. Apache

Corp., 294 S.W.3d 164, 168 (Tex. 2009). “No single provision taken alone will be given controlling

effect; rather, all the provisions must be considered with reference to the whole instrument.” Seagull

Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006).

               Although the parties have conflicting interpretations of the contract, we look to their

objective intent as manifested in the words of their written agreement and will consider the parties’

interpretations and extraneous evidence only if the contract is ambiguous. David J. Sacks, P.C.

v. Haden, 266 S.W.3d 447, 450 (Tex. 2008); see also Sun Oil Co. v. Madeley, 626 S.W.2d 726,

728 (Tex. 1981). “Whether a contract is ambiguous is a question of law that must be decided by

examining the contract as a whole in light of the circumstances present when the contract

was entered.” Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589

(Tex. 1996). “If, after the pertinent rules of construction are applied, the contract can be given a

definite or certain legal meaning, it is unambiguous and we construe it as a matter of law.” Frost

Nat’l Bank, 165 S.W.3d at 312. An ambiguity arises only after the application of established rules

of construction leaves an agreement susceptible to two or more reasonable interpretations. DeWitt

Cnty. Elec. Coop., Inc., 1 S.W.3d at 100.

               Returning to the contract, we conclude as a matter of law that the unambiguous terms

of the agreement required Benson to pay Wallace Roofing $17,017.70, the sum approved and paid

by her insurer for the claim. The contract provides that Wallace Roofing is to be paid “per the claims

adjustor agreement” and that the contract is “null and void” unless Benson’s insurance carrier agrees


                                                 16
to “pay 100% for all storm damage.” Applying the plain meaning of these terms, we conclude that

Benson has no liability under the contract except for those sums paid by her insurer for the claim

based on the claims adjustor’s assessment of damages. See id. at 101 (language in agreement to be

given plain grammatical meaning). Interpreting the contract as requiring Benson to additionally pay

for her deductible would nullify the provision requiring her insurer to pay 100% for all storm damage

and render the contract null and void. See Harris v. Rowe, 593 S.W.2d 303, 306 (Tex. 1979) (“If

a contract is susceptible of two constructions, one of which would render it valid and the other

invalid, construction validating it must prevail.”); Burnett Ranches, Ltd. v. Cano Petroleum, Inc.,

289 S.W.3d 862, 867 (Tex. App.—Amarillo 2009, pet. denied) (“[W]e generally cannot interpret one

contractual provision in a way that nullifies another.”). Accordingly, we conclude as a matter of law

Wallace Roofing was entitled to $17,017.70 under the contract.


2.      Payments Made to Wallace Roofing’s Agent

                After determining the amount due to Wallace Roofing under the contract, our next

task is to determine whether there is sufficient evidence to support the trial court’s implied finding

that payments Benson made to Wallace Roofing’s agent, Jeff Anthony, should be offset against

the amount Benson owed Wallace Roofing. When an agent has either actual or apparent authority

to receive payments due on a contract, payment to the agent has the same legal effect as payment to

the principal itself. See McAlpin v. Ziller, 17 Tex. 508, 514 (Tex. 1856); see also Pfluger v. Colquitt,

620 S.W.2d 739, 743 (Tex. Civ. App.—Dallas 1981, writ ref’d n.r.e.). If an authorized agent

subsequently misappropriates the money for his own use, the damages resulting from the agent’s

actions must be borne by the principal. Cash v. Lebowitz, 734 S.W.2d 396, 399 (Tex. App.—Dallas

1987, writ ref’d n.r.e.); Pfluger, 620 S.W.2d at 743. The mere fact that an agent is authorized to

                                                  17
contract on behalf of its principal, however, does not necessarily imply that the agent has actual or

apparent authority to receive payment under the contract. See Gunter v. Robinson, 112 S.W. 134,

135 (Tex. Civ. App.—Dallas 1908, no writ). Here, the trial court found that Benson owed

Wallace Roofing only $255.77 in damages. In calculating the amount of damages, the trial court

impliedly found that Anthony was acting within the scope of his actual or apparent authority

when he received Benson’s payments, and therefore, the payments should be offset against

Wallace Roofing’s damages.

               On appeal, Wallace Roofing challenges this implied finding contending there is no or

insufficient evidence that Anthony was within the scope of his authority when he received

Benson’s payments. At trial, Benson had the burden of proving that Anthony was acting within the

scope of his authority when he accepted her payments for work performed by Wallace Roofing. See

Boucher v. City Paint & Supply, Inc., 398 S.W.2d 352, 356 (Tex. Civ. App.—Tyler 1966, no writ)

(burden of proof on party seeking to establish agency). Accordingly, for its legal sufficiency

challenge, Wallace Roofing must demonstrate on appeal that there is no evidence to support the

trial court’s implied finding that Anthony had either actual or apparent authority to receive

payments from Benson on behalf of Wallace Roofing. See Croucher, 660 S.W.2d at 58. In

reviewing a no evidence challenge, we consider all the evidence in the light most favorable to

the prevailing party, indulging every reasonable inference in that party’s favor, and disregarding

all contrary evidence and inferences unless a reasonable fact-finder could not. City of Keller

v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). If more than a scintilla of evidence supports the

finding, the no-evidence challenge fails. For Wallace Roofing’s challenge to the factual sufficiency

of the evidence supporting the finding, we must consider and weigh all the evidence and set aside the


                                                 18
judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong

and unjust. HealthTronics, Inc. v. Lisa Laser USA, Inc., 382 S.W.3d 567, 581 (Tex. App.—Austin

2012, no pet.).


                  A.     Scope of Agent’s Actual or Apparent Authority

                  Actual authority denotes that authority that a principal intentionally confers upon an

agent, intentionally allows the agent to believe he possesses, or allows the agent to believe he

possesses by want of due care. Spring Garden 79U, Inc. v. Stewart Title Co., 874 S.W.2d 945, 948

(Tex. App.—Houston [1st Dist.] 1994, no writ). Apparent authority, however, arises “either from

a principal knowingly permitting an agent to hold [himself] out as having authority or by a

principal’s actions which lack such ordinary care as to clothe an agent with the indicia of authority,

thus leading a reasonably prudent person to believe that the agent has the authority [he] purports

to exercise.” Gaines v. Kelly, 235 S.W.3d 179,183 (Tex. 2007); see also Ames v. Great S. Bank,

672 S.W.2d 447, 450 (Tex. 1984). To determine an agent’s apparent authority, we examine the

conduct of the principal, reliance by the party alleging apparent authority, and the reasonableness of

the third party’s assumptions regarding the agency’s authority. Gaines, 235 S.W.3d at 183; see also

Ames, 672 S.W.2d at 450. Declarations of the alleged agent, without more, are incompetent to

establish either the existence of the agency or the scope of the alleged agent’s authority. Gaines,

235 S.W.3d at 183.


       B.         Sufficient Evidence of Anthony’s Authority

                  On this record, we conclude there is sufficient evidence to support the trial court’s

implied finding that Anthony was acting within the scope of his actual or apparent authority when


                                                   19
he received payments from Benson for work performed by Wallace Roofing. The record shows

Benson wrote two checks to Anthony with the notation “roofing” and had obtained a receipt

reflecting that the payments were for work performed by Wallace Roofing. Further, the president

of Wallace Roofing admitted at trial that Anthony was Wallace Roofing’s agent and was authorized

to contract with Benson on behalf of the company. This was also reflected in Wallace Roofing’s

contract, which represented that Anthony was an “authorized agent” for Wallace Roofing.

Moreover, Wallace Roofing’s contract did not prescribe a particular method of payment or otherwise

limit Anthony’s authority to collect payments under the contract. Further, the president of

Wallace Roofing acknowledged at trial that he had asked Benson to sign an affidavit averring that

she had made payments to Anthony directly so that Wallace Roofing could attempt to recover those

sums from Anthony. The president of Wallace Roofing further testified that if he had been able to

verify the $1,600 in payments Benson made to Anthony, he would have credited her account for the

payments. Reviewing the evidence in the light most favorable to the judgment, we conclude there

is more than a scintilla of evidence to support the trial court’s implied finding that Anthony had

either actual or apparent authority to receive payments from Benson on behalf of Wallace Roofing.

               Although the president of Wallace Roofing testified that he had not given Anthony

authority to collect payments from customers, that testimony does not render a finding of actual

authority factually insufficient, as Wallace Roofing conceded at trial that Anthony was its agent and

that funds paid to Anthony for work performed by Wallace Roofing should be credited to Benson’s

account. See McMillin, 180 S.W.3d at 201 (“When reviewing a challenge to the factual sufficiency

of the evidence, . . . [w]e may not reverse merely because we conclude that the evidence

preponderates toward a different answer.”). Further, the testimony has no bearing on the scope


                                                 20
of Anthony’s apparent authority because such authority is based upon a principal’s conduct in

relation to third parties. Thus, any private agreement Wallace Roofing had with Anthony would

not affect the scope of Anthony’s apparent authority. McAlpin, 17 Tex. at 514 (“Third persons

cannot be affected by the private understanding between [agent and principal], which is known

only to themselves.”). Rather, Anthony’s apparent authority is derived from Wallace Roofing’s

representations and omissions in Benson’s roofing contract which led Benson to reasonably

assume he had such authority. See Gaines, 235 S.W.3d at 183. Accordingly, Wallace Roofing’s

factual sufficiency challenge also fails.

               We conclude there is sufficient evidence to support the trial court’s implied finding

that Anthony was acting within the scope of his authority when he received Benson’s payments, and

therefore, the $1,600 in payments Benson made to Anthony should be offset against the amount

Benson owed Wallace Roofing under the contract.


3.     Wallace Roofing’s Damages Award

               Having determined that Wallace Roofing was entitled to a total payment of

$17,017.70 under the roofing contract and that Benson’s account should be credited for the $1,600

in payments made to Wallace Roofing’s agent, we can now review the sufficiency of the evidence

supporting the trial court’s award of $255.77 in damages for Wallace Roofing’s successful breach

of contract claim.

               As Wallace Roofing had the burden of proving its damages, it cannot prevail on its

legal sufficiency challenge unless its damages were established as a matter of law. See U.S. Bank,

Nat’l Assoc. v. American Realty Trust, Inc., 275 S.W.3d 647, 652 (Tex. App.—Dallas 2009,

pet. denied). Reviewing the evidence supporting the trial court’s damages award, the record shows

                                                21
that: (1) Benson’s insurance carrier made payments to Wallace Roofing on behalf of Benson totaling

$11,361.93; (2) Benson made payments under the contract totaling $5,400, including the payments

she made to Anthony and payments for expenses related to the contract which Wallace Roofing

concedes should be credited to her account. Thus, the record shows Wallace Roofing received a

total payment of $16,761.93 under the contract. The difference between $17,017.70—the amount

Wallace Roofing was entitled to receive under the contract—and $16,761.93—the amount Wallace

Roofing actually received under the contract is $255.77, the amount of damages awarded by the

trial court. Accordingly, we conclude there is legally sufficient evidence to support the award.

                For Wallace Roofing’s factual sufficiency challenge, we must consider and weigh

all the evidence in the record and set aside a finding only if the evidence is so weak or if the finding

is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.

Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). Wallace Roofing contends the

damages finding is against the great weight and preponderance of the evidence because Benson’s

account should not be credited for payments made to its agent. As we have already concluded

Benson is entitled to credit under the contract for the payments she made to Wallace Roofing’s

agent, we conclude the evidence is factually sufficient to support the damages award. We overrule

Wallace Roofing’s sixth issue on appeal.


                          Wallace Roofing’s Constitutional Lien Claim

               In its seventh issue on appeal, Wallace Roofing contends the trial court erred in

denying its claim to foreclose on its constitutional mechanic’s lien against Benson’s homestead. To

prevail on a claim to foreclose a constitutional mechanic’s lien, a lienholder must prove the

performance of the labor and the existence of the debt. San Antonio Credit Union v. O’Connor,

                                                  22
115 S.W.3d 82, 107–08 (Tex. App.—San Antonio 2003, pet. denied). If the trial court had

foreclosed on the constitutional lien in this case, Wallace Roofing would have been entitled to

recover only $255.77 for its claim. As the trial court awarded Benson $45,000 in damages and

attorneys’ fees, any damages Wallace Roofing could have recovered from the constitutional lien

claim were fully offset by Benson’s damages award. As such, we cannot conclude the trial court

abused its discretion in denying Wallace Roofing’s foreclosure claim. We overrule Wallace

Roofing’s seventh issue on appeal.


                                            Attorneys’ Fees

                In its eighth and ninth issues on appeal, Wallace Roofing contends it was entitled to

an award of attorneys’ fees under chapter 38 of the Civil Practice and Remedies Code because it

prevailed on its breach of contract claim. See Tex. Civ. Prac. & Rem. Code § 38.001(8) (authorizing

recovery of attorney’s fees for valid claims based on oral or written contract). Chapter 38 provides

for the recovery of attorneys’ fees in breach-of-contract cases, providing that “a person may recover

reasonable attorneys’ fees . . . in addition to the amount of a valid claim and costs, if the claim is for

. . . an oral or written contract.” Id. Benson defends the award of zero attorneys’ fees, contending

that Wallace Roofing failed to present its claim for payment to Benson as required, made an

excessive presuit demand, and was not a “prevailing party” as required to recover attorneys’ fees

under chapter 38.

                We review a trial court’s decision to grant or deny attorneys’ fees

under an abuse of discretion standard. EMC Mortg. Corp. v. Davis, 167 S.W.3d 406, 418

(Tex. App.—Austin 2005, pet. denied). A trial court abuses its discretion when it acts without

reference to any guiding rules or principles. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d

                                                   23
682, 687 (Tex. 2002). “When a prevailing party in a breach of contract suit seeks attorney’s fees

under section 38.001, makes its proof, and meets the requirements of the section, an award of

attorney’s fees is mandatory.” Flagship Hotel, Ltd. v. City of Galveston, 117 S.W.3d 552, 563–65

(Tex. App.—Texarkana 2003, pet. denied); see also Bocquet v. Herring, 972 S.W.2d 19, 20–21

(Tex. 1998). Thus, a trial court “possesses discretion to determine the amount of attorney’s fees,

but it lacks discretion to deny attorneys’ fees if they are proper under section 38.001.” Brent v.

Field, 275 S.W.3d 611, 622 (Tex. App.—Amarillo 2008, no pet.); Budd v. Gay, 846 S.W.2d 521,

524 (Tex. App.—Houston [14th Dist.] 1993, no writ).

               In order to recover attorneys’ fees under chapter 38, Wallace Roofing must show that:

(1) it was represented by counsel; (2) it presented its claim to Benson; and (3) Benson failed to pay

the just amount owed within thirty days of presentment. Tex. Civ. Prac. & Rem. Code § 38.002.

Presentment of a claim is required to allow the person against whom it is asserted an opportunity

to pay within thirty days of receiving the claim, before incurring an obligation for attorneys’ fees.

Jones v. Kelley, 614 S.W.2d 95, 100 (Tex. 1981). No particular form of presentment is required,

and it may be written or oral. Id. “[A]ll that is necessary is that an assertion of a debt or claim

and a request for compliance be made to the opposing party, and the opposing party refused

to pay the claim.” Standard Constructors, Inc. v. Chevron Chem. Co., Inc., 101 S.W.3d 619, 627

(Tex. App.—Houston [1st Dist.] 2003, pet. denied); see also Huff v. Fidelity Union Life Ins. Co.,

312 S.W.2d 493, 500 (Tex. 1958).

               The trial court found that Wallace Roofing failed to present its claim to Benson

and denied an award of attorneys’ fees. Wallace Roofing, however, contends that Benson’s

own testimony established presentment of the claim as a matter of law. We agree. According to


                                                 24
Benson’s undisputed testimony, Wallace Roofing through its attorney informed her of the claim and

demanded payment during a telephone conversation occurring after her first closing was canceled.

Benson testified the lawyer informed her during the telephone conversation that she owed $5,220.10

on the contract and demanded payment but that she refused to pay any amount on the claim and

informed the lawyer she was going to take the claim to court. As Benson testified that Wallace

Roofing presented its claim and she refused to tender payment within thirty days, we conclude

Wallace Roofing established presentment of the claim as a matter of law.5

                We must next consider, however, whether Wallace Roofing waived its right to

attorneys’ fees by presenting an excessive demand. In its initial demand for payment, Wallace

Roofing sought $5,220.10 from Benson but at trial only recovered $255.77. Benson contends that

Wallace Roofing’s demand was excessive and should preclude an award of attorneys’ fees. As a

general rule, “a creditor who makes excessive demand upon a debtor is not entitled to attorneys’ fees

for subsequent litigation required to recover the debt.” Findlay v. Cave, 611 S.W.2d 57, 58

(Tex. 1981); Collingsworth v. King, 283 S.W.2d 30, 33 (Tex. 1955). But the mere fact that a

judgment awards an amount less than the original claim presented does not necessarily mean that

the original claim presented was excessive. Findlay, 611 S.W.2d at 58. Rather, the dispositive

inquiry for determining whether a demand is excessive is whether the claimant acted unreasonably

or in bad faith. Pratt v. Trinity Projects, Inc., 26 S.W.3d 767, 769 (Tex. App.—Beaumont 2000,

pet. denied). Further, “[a]pplication of this rule is limited to situations where the creditor refuses



        5
          Although Wallace Roofing presented its claim after it had already filed suit, chapter 38
does not require a party to present its claim prior to filing suit. See Palestine Water Well Servs., Inc.
v. Vance Sand & Rock, Inc., 188 S.W.3d 321, 327 (Tex. App.—Tyler 2006, no pet.).


                                                   25
a tender of the amount actually due or indicates clearly to the debtor that such tender would

be refused.” Hernandez v. Lautensack, 201 S.W.3d 771, 777 (Tex. App.—Fort Worth 2006,

pet. denied); see also Findlay, 611 S.W.2d at 58.

               Here, Wallace Roofing demanded Benson pay $5,220.10 on her roofing contract, but

admitted at trial that this amount was incorrect because it had in its possession—at the time it made

the demand—documents showing that it had failed to credit Benson’s account with a $2,349.33

payment from her insurer. Further, despite Benson and her attorney’s communications disputing

the amount of the debt, Wallace Roofing persisted in its claim that she owed $5,220.10. Indeed,

even after communications with Benson and her attorney, Wallace Roofing continued to assert in

its pleadings that Benson owed $5,220.10 and sent a copy of the pleadings to the title company

handling the closing for Benson’s failed refinance. Given that Wallace Roofing admitted at trial

that it made an excessive demand for payment and its actions indicated an unwillingness to

accept the actual amount due on the account, we cannot conclude the trial court abused its discretion

in denying attorneys’ fees.6 See Ingham v. Harrison, 224 S.W.2d 1019, 1022 (Tex. 1949) (demand

excessive when creditor refused to allow debtor credits for certain payments); Warrior Constructors,

Inc. v. Small Bus. Inv. Co. of Houston, 536 S.W.2d 382, 386 (Tex. App.—Houston [14th Dist.]

1976, no writ) (debtor not required to tender payment where creditor has clearly indicated an




       6
          Almost three months after sending the title company a copy of its pleadings seeking
$5,220.10 in damages, Wallace Roofing discovered that it had failed to credit Benson’s account with
the $2,349.33 payment from her insurer. Upon discovery of the mistake, Wallace Roofing amended
its pleadings to lower its requested damages; however, there is no evidence in the record that
Wallace Roofing presented Benson with its revised claim and demanded payment. See Huff v.
Fidelity Union Life Ins. Co., 312 S.W.2d 493, 500 (Tex. 1958) (act of filing suit is not by itself a
demand for payment under chapter 38 sufficient to trigger award of attorneys’ fees).

                                                 26
unwillingness to accept what is due). Accordingly, we overrule Wallace Roofing’s eighth and

ninth issues on appeal.7


                                       Benson’s Cross-Points

                In two cross-points of error, Benson contends she is entitled as a matter of law to

greater damages for her counterclaims. An appellee seeking to change the trial court’s judgment or

to obtain more favorable relief than that granted by the trial court must file its own notice of appeal.

See Tex. R. App. P. 25.1(c), 26.1(d); Lubbock Cnty. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d

580, 584 (Tex. 2002). As Benson has not filed a notice of appeal, we conclude she has waived this

issue on appeal.


                                          CONCLUSION

                For the foregoing reasons, we affirm the judgment of the trial court.




                                                ____________________________________________

                                                Jeff Rose, Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Affirmed

Filed: November 27, 2013




       7
         In its tenth issue on appeal, Wallace Roofing argued that the trial court erred in granting
judgment against Royce Dean Wallace in his personal capacity. In its reply brief, Wallace Roofing
concedes this point is moot as the trial court corrected any error in its final judgment nunc pro tunc.

                                                  27
