Reversed, Rendered, Remanded, and Memorandum Opinion filed November
20, 2014.




                                     In the

                    Fourteenth Court of Appeals

                             NO. 14-13-00990-CV

  ANTHONY M. WOOD D/B/A THE PEOPLE’S AIR CONDITIONING &
               HEATING COMPANY, Appellant
                                       V.

 PYRAMID COMMUNITY DEVELOPMENT CORPORATION, Appellee

                   On Appeal from the 333rd District Court
                            Harris County, Texas
                      Trial Court Cause No. 2009-60612

                 MEMORANDUM OPINION


      This appeal concerns an alleged breach of contract related to nonpayment for
materials and services provided to appellee Pyramid Community Development
Corporation by appellant Anthony M. Wood d/b/a The People’s Air Conditioning
& Heating Company. The jury rendered findings favorable to Wood regarding
Wood’s provision of certain materials and services, the existence of an agreement
to pay for those materials and services on an installment basis, Pyramid’s failure to
pay installments, damages, and attorney’s fees. The trial court granted Pyramid’s
motion for judgment non obstante veredicto.

      We conclude that the trial court erred, reverse the JNOV, and render
judgment reinstating the jury’s verdict for damages in the amount of $202,000.00
and attorney’s fees in the amount of $16,178.75. We remand to the trial court
below for the limited purpose of calculating and awarding pre- and post-judgment
interest as allowed by law.

              I.       FACTUAL AND PROCEDURAL BACKGROUND

      Appellant Anthony M. Wood owned an air conditioning repair company
known as The People’s Air Conditioning & Heating Company. Appellee Pyramid
Community Development Corporation owns and operates the Power Center—a
large business complex that contains a conference facility, a bank, a doctor’s
office, a pharmacy, and a school—and a WIC facility. These two buildings total
104,000 square feet.

      Starting in 2002, Wood began performing air conditioning services for
Pyramid. Wood received work from Pyramid’s director of operations, Donnell
Cooper.   Wood submitted invoices for his work, and Pyramid typically paid
Wood’s invoices on a 30-day basis.        According to what Cooper told Wood,
Pyramid’s board had to review invoices over $50,000.

      In 2004, Wood submitted invoices on three particular jobs for Pyramid, all
requested and approved by Cooper:

          • Invoice 1142, dated August 30, 2004: to address a kitchen unit
            that was not cooling, Wood “[r]eplace[d] UPC circuit board,”
            “[c]harge[d] unit to level of cooling,” and “[c]heck[ed] circuit
            wiring” for a total of $750.00.

                                         2
         • Invoices 1160 and 1161, dated September 14, 2004:
                  o With regard to Invoice 1160, Wood replaced “[t]wo semi
                    hermetic comp[ressors],” “[t]wo 7.5 ton compressors,”
                    and provided five hours of “[c]rane service” and four
                    “[l]aborers” for a total of $26,730.80.
                  o With regard to Invoice 1161, Wood provided 90 pounds
                    of “R-22 Freon” at $18.00 per pound to recharge the
                    compressors for a total of $1620.00.
         • Invoice 1154, dated October 7, 2004: to address compressor
           warranty issues, Wood installed return air systems for the
           Power Center building and the separate WIC building; three
           units—in the administrative wing, the Power Suites, and the
           school office; and a fan motor for the kitchen unit, using “12
           crews” over three days, for a total in parts and labor of
           $173,300.00.

As of October 8, 2004, Pyramid owed Wood $202,400.00 on these four invoices.
Wood and Cooper discussed payment—Cooper indicated that the board might
authorize monthly payments of $25,000 or $50,000. Wood stated he “had no
problem with that,” particularly as Cooper had informed him that Pyramid was
planning new developments and Wood understood he could be “in the No. 1
position” to receive some, even all, of that work.

      Wood testified that a few weeks later, on a Friday evening at about 10:30
p.m., Cooper called him at home and requested that he come to the Power Center
because “everything is just falling apart” from the “real bad rain.” Wood arrived to
inspect the premises and found that much of the Power Center ceiling and lighting,
and “all the return air duct that [Wood] had put up for the warranty, all that duct
work” for 17 units, had caved in. Wood explained that the combination of the rain
and leaving all the units running had caused condensing water to “back up” into
the drain pans.


                                          3
      Wood agreed he would get the Power Center building back to “operational”
if Cooper signed a proposal for the job. This proposal was dated October 25, 2004
(the “October 25 proposal”). In exchange for the sum of $220,000.00, Wood
would correct the return air duct system on 17 units, with each unit supplying and
returning air to a designated space, and each unit to have a “24 by 24 filter grill for
return air directly to the space roof top unit”; install drain lines for 28 roof top
units; and remove existing return air ducting and drain lines. Cooper signed the
October 25 proposal, and Wood completed the job, utilizing “17 crews,” including
electricians, “sheetrock people,” and “cleaning people,” over the weekend so the
building could be open for business on Monday. As of completion of this job,
Pyramid owed Wood a total of $422,400.80.

      After this job was completed, Cooper was suspended from his position and
Wood started working with Deborah Anderson, the executive director of Pyramid,
on the payment arrangements. On November 16, 2004, Anderson sent Wood a
letter enclosing a check for $850.00, to be credited toward “a balance due [Wood]
of $172,450 for the installation of various air conditioning components.”1 In the
November letter, Anderson expressed Pyramid’s regret that Wood was under the
impression that Cooper had authority to approve the work completed without
authorization by the board but that Pyramid intended to “pay [Wood] for the
services rendered” in installments of $8,158.15 monthly over 24 months
commencing December 1, 2004 at 12.5% yearly interest.2

      Also in November 2004, Pyramid via Anderson submitted a notice of loss to
its insurance carrier. The notice reported that the date of loss was October 25,
2004, and the location of loss was the “facility air return system.” The notice

      1
          Adding $850.00 to $172,450.00 equals $173,300.00.
      2
          The first check for the amount of $8,158.15 was actually dated November 16, 2004.

                                               4
reported that the probable amount of entire loss was $220,000.00. The October 25
proposal was attached to the claim as the description of loss and damage. With
regard to the kind of loss, the notice referred to an attached statement by Wood
regarding the October 25 heavy rain, the inability of the units to drain properly, the
resulting damage and collapse of the Power Center roof, installation of all new
drainage systems, and removal of damaged return air systems and installation of
new return air systems for 17 units. The proceeds from this claim were to be paid
to Wood. The carrier ultimately completed its investigation and concluded that
Pyramid’s policy did not cover the October 25 occurrence. The carrier informed
Pyramid of the lack of coverage initially by letter dated January 5, 2005. After
reopening its investigation, the carrier again concluded and informed Pyramid by
letter dated April 19, 2005, that Pyramid’s policy did not cover the October 25
occurrence.

      In early January 2005, Wood received an additional job from Anderson.
This job involved removal of four units from the Village of Hope facility and
installation of those units at the Power Center, for a total of $18,000.00.

      On April 14, 2005, Anderson sent Wood a letter enclosing a check for
$50,000.00, to be credited “toward the balance owed for the installation of the
return air system, transfer of units from Village of Hope, and installation of several
other units,” which reportedly was $121,701.10, after this remittance. Anderson
stated that Pyramid would continue to remit $8,158.15 monthly “until the balance
is paid in full.” Anderson also stated that Pyramid would pay $1,500.00 biweekly
for the services rendered to transfer and install the Village of Hope units.

      On July 15, 2005, Anderson sent Wood’s attorney a letter describing a
“payoff agreement” for the “installation of: (1) return air system on 2 buildings, (2)
3 air conditioning units, and (3) roof top drains for air conditioning and heating on

                                           5
2 buildings,” which reported balance was $103,884.80. Pyramid indicated it would
pay three monthly payments of $25,000.00 on the 16th of each month, beginning
in July 2005, and a final payment of $28,884.80, with all interest waived.
According to Wood, this “payoff” plan did not cover his full balance but primarily
the $173,300.00 “warranty” job, Invoice 1154. Anderson sent another $25,000
with a letter dated August 12, 2005, reporting the current balance at $78,884.80.3
On October 13, 2005, Anderson sent Wood’s attorney a letter enclosing a check for
$28,884.80, representing “the final payment of expenses associated with the
installation of the return air system and other miscellaneous HVAC services at the
Power Center.”

      At this point, Pyramid had paid Wood a total of $238,000.00. The total
amount of air conditioning services rendered by and for which Wood testified he
expected payment was $440,400.80, which covered what Wood referred to as:

          • Phase 1—Invoices 1142 ($750.00), 1154 ($173,300.00), 1160
            ($26,730.80), and 1161 ($1,620.00) (totaling $202,400.80);
          • Phase 2—the October 25 proposal submitted as an insurance
            claim but ultimately not covered ($220,000.00); and
          • Phase 3—the January 2005 Village of Hope project
            ($18,000.00).

According to Wood, this left a balance of $202,400.80. When he received no
additional checks after October 2005, Wood approached Anderson and informed
her that Pyramid owed him more money. Pyramid submitted no further payments
to Wood because, according to Anderson, the October 25 proposal did not amount
to any additional work beyond the work reflected in Invoices 1142, 1154, 1160,
and 1161. However, Anderson acknowledged that if Wood did in fact complete

      3
         Although the record contains a check dated September 13, 2005, in the amount of
$25,000, the record does not contain a September 2005 letter.

                                           6
the work described in the October 25 proposal, then he should be paid. Anderson
also acknowledged that Pyramid paid Wood approximately $18,000 more than the
amounts payable for Invoices 1142, 1154, 1160, and 1161, and for the Village of
Hope project.

       Wood filed suit on September 21, 2009, less than four years after Pyramid’s
final payment in October 2005. In his live petition, Wood asserted causes of action
for breach of contract, suit on sworn account, quantum meruit, and breach of
guaranty. Pyramid moved for, and the trial court granted, summary judgment on
the basis of limitations. In a prior appeal, this court reversed and remanded,
concluding there were fact issues on the contract claim and that Pyramid was not
entitled to summary judgment on its limitations defense. Wood v. Pyramid Cmty.
Dev. Corp., No. 14-11-00428-CV, 2012 WL 2394053, at *4–5 (Tex. App.—
Houston [14th Dist.] June 26, 2012, no pet.) (mem. op.).

       After a trial on the contract claim, a jury found the following:

           • Wood provided Pyramid with all or part of the materials and
             services in the October 25 proposal.
           • Wood and Pyramid agreed that Pyramid would pay Wood for
             the materials and services in the October 25 proposal in
             installments that would be due on or after September 22, 2005. 4
           • Pyramid failed to pay installments which were due to Wood on
             or after September 22, 2005.
           • The total amount of unpaid installments due on or after
             September 22, 2005 was $202,000.00.
           • A reasonable fee for the necessary services of Wood’s attorney

       4
         Pyramid moved for directed verdict on its affirmative defense of statute of limitations,
arguing that the accrual date for Wood’s contract claim was October 27, 2004, and thus his claim
fell beyond the four-year limitations period. The trial court partially overruled and partially
granted Pyramid’s motion and incorporated the September 22, 2005, date—four years prior to
Wood’s filing his original petition—into questions 2 through 4.

                                               7
             in the case was $16,178.75.

Wood filed a motion to enter judgment, and Pyramid filed a motion for JNOV.
Pyramid argued that there was no evidence to support: (1) the $220,000.00 due
under the October 25 proposal was included in an installment contract and (2)
Pyramid missed fixed payments due under an installment contract beyond
September 22, 2005. The trial court granted Pyramid’s motion for JNOV, and
Wood timely appealed.

                         II.      STANDARD OF REVIEW

      Judgment against a jury verdict is proper only when the law does not permit
reasonable jurors to decide otherwise. City of Keller v. Wilson, 168 S.W.3d 802,
823 (Tex. 2005). We therefore review JNOVs for legal sufficiency of the evidence
supporting the verdict, bearing in mind that it is the jury’s sole province to evaluate
witness credibility and determine the weight to attach to testimony.            Envtl.
Procedures, Inc. v. Guidry, 282 S.W.3d 602, 626 (Tex. App.—Houston [14th
Dist.] 2009, pet. denied) (citing Wilson, 168 S.W.3d at 819). To sustain a no-
evidence challenge, we must find: (1) there is a complete absence of evidence of a
vital fact, (2) the law or rules of evidence bar us from giving weight to the only
evidence offered to prove a vital fact, (3) there is no more than a scintilla of
evidence offered to prove a vital fact, or (4) the evidence conclusively establishes
the opposite of the vital fact. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d
897, 903 (Tex. 2004).

      We consider the evidence at trial in the light most favorable to the verdict
and indulge every reasonable inference that would support the challenged finding,
crediting favorable evidence if a reasonable factfinder could and disregarding
contrary evidence unless a reasonable factfinder could not.         See Wilson, 168
S.W.3d at 823, 827. If the evidence viewed in this light would enable reasonable
                                           8
and fair-minded people to find the challenged fact, then JNOV is improper. See id.
“We will uphold the jury’s finding if more than a scintilla of competent evidence
supports it”—that is, if the evidence falls within the zone of reasonable
disagreement. Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 830
(Tex. 2009); Wilson, 168 S.W.3d at 822.

      In reviewing factual sufficiency, we must consider and weigh all the
evidence. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761–62 (Tex.
2003). We can set aside a verdict 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 manifestly unjust. Id. at 761. We may not substitute our own judgment
for that of the factfinder, even if we would reach a different answer on the
evidence. GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 616
(Tex. App.—Houston [14th Dist.] 2001, pet. denied). The amount of evidence
necessary to affirm the factfinder's judgment is far less than that necessary to
reverse its judgment. Id.

       When an appellate court determines the trial court erroneously rendered a
JNOV, the appellate court must reverse the trial court’s judgment and enter
judgment in harmony with the verdict, unless the appellee by cross-point argues a
legal reason to affirm the judgment or that the factual insufficiency of the evidence
merits a new trial. See Tex. R. Civ. P. 324(c); Burns v. Resolution Trust Corp.,
880 S.W.2d 149, 151 (Tex. App.—Houston [14th Dist.] 1994, no writ).

                              III.      ANALYSIS

      In a single issue on appeal, Wood contends that the trial court erred in
signing its order granting Pyramid JNOV because there was sufficient evidence to
support the jury’s findings in his favor. By cross-point, Pyramid asserts that there
is insufficient evidence to support the jury’s verdict and that the statute of
                                          9
limitations vitiates the jury’s verdict.

A. The evidence is legally sufficient to support that the parties modified the
   payment terms of the October 25 proposal.

      In its JNOV motion, Pyramid argued there was no modification to the
October 25 proposal’s payment terms, essentially asserting that the jury reasonably
could not have answered question 2 in Wood’s favor. Question 2 asked, “Did
[Wood] and [Pyramid] agree that [Pyramid] would pay [Wood] for the materials
and services referred to in [the October 25 proposal] in installments that would be
due on or after September 22, 2005?” On appeal, Wood contends that although
Pyramid denies the existence of any additional debt related to the October 25
proposal, the record supports the parties agreed to modify how Wood was to be
paid, and despite disagreement over the terms of that installment agreement, the
jury reasonably resolved disputes in Wood’s favor.

      Wood agreed to perform extensive emergency repairs to the Power Center
only if Cooper agreed to sign a proposal. The October 25 proposal states that
payment of the $220,000.00 was to be made “50% down $110,000.00 and balance
upon completion of work.”         Pyramid did not make such down payment, but
according to Wood, he moved forward with the repairs to return the Power Center
to operational over the weekend, had completed the repairs by that next Monday,
and expected to be paid for such work. The record does not indicate that Pyramid
paid any balance upon such completion. At the time Wood had completed the
repairs reflected in the October 25 proposal, Pyramid also had not paid Wood
anything toward four invoices reflecting previous services provided in the total
amount of $202,400.80. Around this time, Cooper indicated to Wood that the
board could authorize monthly payments of $25,000 or $50,000, and Wood had
“no problem” with that.       Then Pyramid suspended Cooper and Wood began

                                           10
“dealing” with Anderson.

      The entire October 25 proposal was submitted to Pyramid’s insurance carrier
as a $220,000.00 claim as of November 9, 2004. Wood assisted with the insurance
carrier’s investigation of the claim and expected any insurance proceeds to be paid
to him toward the October 25 proposal. The carrier initially denied the claim in
January 2005, and finally denied it as of April 19, 2005.

      With regard to payments, Pyramid provided Wood a check dated October
28, 2004, for $850.00. By letter dated November 16, 2004, Pyramid informed
Wood that it intended to pay him 24 payments of $8,158.15 on a balance of
$172,450.00, which included 12.5% annual interest. In addition, by check dated
April 14, 2005, Pyramid paid Wood $50,000.00, and by letter dated that same day,
noted a balance of $121,701.10 and referenced the monthly $8,158.15 payments
payable “until the balance is paid in full.” Pyramid paid Wood eight monthly
checks in the amount of $8,158.15, with the last one dated June 8, 2005. In the
same letter, Pyramid informed Wood that the payment plan for the Village of Hope
job was “$1,500 every other week” until April 29. Pyramid paid Wood eight
biweekly checks in the amount of $1,500.00, with the first one dated January 19,
2005, and the last one dated April 27, 2005. The record also reflects a check dated
January 19, 2005, to Wood in the amount of $6,000.00.

      By letter dated July 15, 2005, Pyramid stated that a payoff agreement had
been reached with regard to paying off a balance of $103,884.80 for installation of
the return air system on two buildings, three air conditioning units, and roof top
drains on two buildings. This arrangement waived interest. Pyramid paid Wood
three monthly checks dated July 12, August 10, and September 13, 2005, each in
the amount of $25,000.00, and one monthly check dated October 11, 2005, in the
amount of $28,884.80, tracking Pyramid’s July 2005 letter. The total of all the

                                         11
checks Pyramid paid Wood is $238,000.00. After Wood did not receive another
check payment in November 2005, he approached Pyramid to demand the rest of
the money owed to him, or $202,400.80.

       The jury found that Wood and Pyramid agreed that Pyramid would pay
Wood for the materials and services in the October 25 proposal in installments due
on or after September 22, 2005. The record contains evidence that Wood provided
air conditioning-related materials and services to Pyramid totaling $440,400.80 and
expected to be paid for that entire amount. Pyramid requested and accepted all the
work, and communicated its desire to pay Wood for all of his “services rendered.”
However, instead of paying any of his invoices within 30 days or paying the
October 25 proposal according to its terms, Pyramid submitted 23 checks to Wood
in furtherance of an installment payment plan—albeit one containing various terms
regarding the amounts and scheduling of payments, application of interest, and the
subject work at issue—as modified over time.

       Pyramid does not dispute that Wood completed the invoice work or the
Village of Hope project. The October 25 proposal related to materials and services
to repair the “collapse” of the return air ducting in the Power Center, which Wood
testified he had previously replaced (on both the Power Center and the WIC
facility) due to warranty concerns per Invoice 1154.               Pyramid submitted the
entirety of the October 25 proposal as an insurance claim, suggesting that Pyramid
viewed all the work described in it as a legitimate business loss. Moreover, the
jury found that Wood provided Pyramid with all or part of the materials and
services from the October 25 proposal.5 Further, Anderson acknowledged that if

       5
        Despite its running theme at trial that Wood did not perform any additional work in the
October 25 proposal beyond what was included in the Phase 1 invoices, in its JNOV motion
Pyramid did not specifically challenge the jury’s finding of “yes” in question 1 that Wood
provided Pyramid with materials and services from the October 25 proposal.

                                              12
Wood in fact performed all the work outlined in the October 25 proposal, he would
be entitled to payment for the entire $220,000.00. At least three letters, all dated
after the carrier had denied Pyramid’s insurance claim, referenced installment
payments going toward materials and services included within the October 25
proposal, i.e., the roof top drains. 6 As of the last payment Pyramid provided in
October 2005, Pyramid had paid Wood $238,000.00. Anderson acknowledged that
this amount included about $18,000 more in payment than reflected in the four
invoices and the Village of Hope project.

      Pyramid focuses almost exclusively on the weight of certain trial testimony
by Wood wherein he indicated he did not “for the services provided on October
25th, 2004, enter into an installment payment plan to allow for that matter to be
paid out over a period of time.” However, keeping in mind we must indulge every
reasonable inference to support the challenged finding, a reasonable and fair-
minded jury may have interpreted the defense’s question and Wood’s answer to
mean that the installment arrangement reached all the “Phases” of the work Wood
had performed—not merely the “matter” of the October 25 proposal. Moreover, in
the specific context of discussing the $220,000 insurance claim, Anderson
acknowledged that “a conversation ensued with Mr. Wood regarding, of course, a
payment plan so we could actually pay” because as a nonprofit Pyramid could not
pay such a “lump sum.” The jury was free to choose Wood’s version of events
over Pyramid’s, and to believe or disbelieve certain testimony in whole or in part,
to determine that the “payment plan” included the October 25 proposal. See Ulogo
v. Villanueva, 177 S.W.3d 496, 499 (Tex. App.—Houston [1st Dist.] 2005, no pet.)
(op. on reh’g) (citing Miller v. Kendall, 804 S.W.2d 933, 939 (Tex. App.—
Houston [1st Dist.] 1990, no writ)).

      6
          The only time installation of roof top drains is mentioned is in the October 25 proposal.

                                                 13
      Pyramid also notes that Wood identified two installment letters (dated in
April and July 2005) as referencing payments toward Phase 1.                   Although
Pyramid’s installment payments up until October 11, 2005, may have reflected
payment mainly toward Phase 1 (the four invoices) and Phase 3 (the Village of
Hope project)—and although Pyramid disputed that Wood reinstalled certain
return air duct work for the Power Center in Phase 2 (the October 25 proposal)—
there is evidence that Pyramid agreed to pay and had begun paying Wood for his
work on the October 25 proposal by installment. 7           Specifically, the last four
installment checks Pyramid provided Wood included payment going toward the
October 25 proposal.

      Based on our review of the evidence in the light most favorable to this
finding, we conclude the evidence at least raised a fact issue as to the existence of
an installment contract covering the work Wood performed for Pyramid in the
October 25 proposal, with installments due on or after September 22, 2005. See
Wilson, 168 S.W.3d at 823, 827.

B. The evidence is legally sufficient to support that Pyramid missed
   installment payments.

      We already have concluded that more than a scintilla of competent evidence
supports the existence of an installment contract between Wood and Pyramid, with
installments due on or after September 22, 2005, covering the October 25 proposal.
Now we consider whether there was legally sufficient evidence to support a breach
by Pyramid to pay any installments due on or after September 22, 2005, as the jury
found in question 3.


      7
         Based on simple calculations of what was allegedly still owed and accounting for
payments already made by Pyramid, the payment plan as Pyramid itself described in both the
April and July 2005 letters could not only have been toward the payment of Phases 1 and 3.

                                           14
       In its motion for JNOV, Pyramid further argued, even if there was evidence
of modification of the October 25 proposal’s payment terms into an installment
contract, there was no evidence to support that Pyramid missed paying any
installments after September 22, 2005. Pyramid emphasizes that it made all the
payments referenced in its July 2005 letter and Wood did not complain that the
balance on the October 25 proposal had not been paid until after Pyramid made its
“final” payment.

       On appeal, Wood argues he contacted Anderson shortly after he did not
receive any additional monthly checks from Pyramid and informed her that
Pyramid still owed him more money, in the approximate amount of $202,000, but
she told him that Pyramid already had “paid [him] for the return air system” and
refused to pay him anything else.

       A breach of contract occurs when a party refuses to do something he has
promised to do. Townewest Homeowners Ass’n, Inc. v. Warner Commc’n Inc., 826
S.W.2d 638, 640 (Tex. App.—Houston [14th Dist.] 1992, no pet.). An installment
contract is breached every time a payment is missed. See Crown Asset Mgmt., LLC
v. Carter, No. 07-08-0164-CV, 2009 WL 578633, at *2 (Tex. App.—Amarillo
Mar. 6, 2009, no pet.) (mem. op.); Hollander v. Capon, 853 S.W.2d 723, 726 (Tex.
App.—Houston [1st Dist.] 1993, writ denied). Although many installment contract
cases involve fixed payments,8 any failure to make payments “calculated and paid
on a periodic basis” may constitute a breach. See Spin Doctor Golf, Inc. v.
Paymentech, L.P., 296 S.W.3d 354, 362–63 (Tex. App.—Dallas 2009, pet. denied)
(installment contract called for periodic, varying payments based on credit card
sales); see also Peters v. Bentwater Yacht & Country Club, Ltd., No. 4:12-cv-3596,
       8
         See, e.g., Gardner v. Cummings, No. 14-04-01074-CV, 2006 WL 2403299, at *3 (Tex.
App.—Houston [14th Dist.] Aug. 22, 2006, pet. denied) (mem. op.) (installment contract called
for periodic, fixed payments of past-due rent and future rent).

                                             15
2013 WL 2422657, at *5 (S.D. Tex. June 3, 2013) (“A fixed quantity or price is
not necessary to have an enforceable installment contract.” (discussing Spin Doctor
Golf)). Insofar as a dispute exists concerning the failure of a party to perform the
contract, courts submit disputed fact questions to the jury. XCO Prod. Co. v.
Jamison, 194 S.W.3d 622, 632 (Tex. App.—Houston [14th Dist.] 2006, pet.
denied).

      Both Wood and Anderson testified that Pyramid was submitting payments
“on a monthly basis.” Indeed, the record reflects that Pyramid paid Wood 23
payments toward their installment contract, in varying amounts “on a periodic
basis” beginning in November 2004, and that, as previously analyzed, the evidence
is legally sufficient to support that the contract covered payment of the October 25
proposal. Pyramid’s last installment payment occurred in October 2005. At the
time of the last installment, there is evidence that Pyramid owed Wood at least
$202,000 in outstanding payments on the October 25 proposal.              Once Wood
realized that he was not going to receive another monthly payment for November
2005, he approached Anderson to demand payment of $202,000—the amount
outstanding on the October 25 proposal. Pyramid refused to pay Wood any more
periodic installments.

      In light of the evidence that Pyramid intended to pay Wood for all his
services rendered, including the October 25 proposal, and indulging every
reasonable inference to support the challenged finding, a reasonable and fair-
minded jury could infer the “final” nature of the October 2005 check payment
referred to the fact that it apparently “finally” paid off Phase 1, particularly Invoice
1154, the first installation of the “return air system on 2 buildings.” The October
2005 payment was notably silent about being any “final” payment for the second
installation of the return air system as performed under the October 25 proposal

                                          16
after the Power Center collapsed or for any services performed but not ultimately
covered by insurance. 9 Moreover, we conclude a jury reasonably could infer that
Wood did not “spring a claim” on Pyramid where the installment contract between
the parties included varying amounts of payment on a periodic basis; where several
of the installment checks did not strictly correlate to any particular “sub” payoff
agreement; where Wood submitted four invoices from August 30 to October 7,
2004, totaling $202,400.80, submitted a separate October 25 proposal for
$220,000.00, and performed an $18,000.00 Village of Hope job; where Pyramid
submitted a $220,000.00 loss claim directly based on the October 25 proposal; and
where Pyramid had in fact issued payments toward the October 25 proposal.

       Based on our review of the evidence in the light most favorable to this
finding, we conclude the evidence at least raised a fact issue that Pyramid failed to
pay additional installment payments on the October 25 proposal still due to Wood
on or after September 22, 2005. See Wilson, 168 S.W.3d at 823, 827. To the
extent that Pyramid also challenged the amount of damages awarded by the jury in
question 4,10 we similarly conclude that some evidence exists to support a
reasonable and fair-minded jury’s award of $202,000.00 in contract damages due
on or after September 22, 2005. See id.




       9
         The only written demand in the record was a letter from Wood’s initial attorney dated
January 18, 2005, indicating the outstanding balance at that time was $196,000.00, which is
consistent with the fact that the $220,000.00 insurance claim on the October 25 proposal was still
pending.
       10
           Question 4 asked: “What sum of money, if any, if paid now in cash, would fairly and
reasonably compensate [Wood] for his damages, if any, that resulted from such failure to pay
installments which were due on or after September 22, 2005 for the materials and services
referred to in [the October 25 proposal]?”

                                               17
C. The evidence does not conclusively establish Pyramid’s limitations defense
   as a ground for JNOV.

       The trial court here did not specify its basis or bases for granting JNOV.
Having considered the language of Pyramid’s motion for JNOV, we are not
convinced that it expressly presented the conclusive establishment of its
affirmative defense of limitations as a ground for JNOV. In his brief, however,
Wood addresses limitations, asserting Pyramid did not prove this defense at trial.
Wood contends the only defense reflected in Anderson’s trial testimony was that
Wood had been paid in full, not that his claims should be barred by limitations. In
its brief, Pyramid argues the record contains evidence to support that Wood’s
contract claim accrued on April 19, 2005, when the carrier finally denied
Pyramid’s claim, or by the latest July 15, 2005, when Pyramid began payment
toward the “payoff agreement.”11 Pyramid challenged the jury’s findings in its
JNOV motion; questions 2 through 4 all included the September 22, 2005, date
with regard to limitations; and by answering those questions in the affirmative the
jury implicitly rejected Pyramid’s limitations defense. In addition, Pyramid moved
for a directed verdict with regard to limitations. See Tex. R. Civ. P. 301; Fort
Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991) (“A court
may render judgment n.o.v. if a directed verdict would have been proper.”).
Therefore, where Pyramid also argues limitations by cross-point, we consider
whether it is a permissible basis for affirming the trial court’s JNOV. See Sbrusch,
818 S.W.2d at 394.


       11
           Within its brief, Pyramid also argues the trial court did not abuse its discretion by
granting the directed verdict setting the limitations date of September 22, 2005. Although Wood
objected during the charge conference, we find nothing within Wood’s brief that explicitly or
implicitly challenges the inclusion of the four-year limitations date within questions 2 through 4.
Rather, Wood’s primary contention is that the trial court erred in disregarding the jury’s breach
of contract findings.

                                                18
      When a movant for JNOV challenges an adverse finding on an affirmative
defense, it must conclusively establish all vital facts in support of that defense.
Mosqueda v. G & H Diversified Mfg., Inc., 223 S.W.3d 571, 576 (Tex. App.—
Houston [14th Dist.] 2007, pet. denied). Therefore, to show its entitlement to
judgment as a matter of law, Pyramid had to conclusively establish that Wood’s
contract claim was not viable because it was barred by limitations. See id.; see
also Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988);
(defendant bears burden to plead and prove affirmative defense of statute of
limitations).

      A four-year statute of limitations generally applies to contract disputes. Tex.
Civ. Prac. & Rem. Code §§ 16.004(a)(3) (debt), 16.051 (residual limitations) (West
2011). A breach of contract claim accrues on the date the contract is breached or
when the claimant has notice of facts sufficient to place him on notice of the
breach. Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002) (per curiam); Crown
Asset Mgmt., 2009 WL 578633, at *2. In other words, the cause accrues when
facts come into existence that authorize a claimant to seek a judicial remedy.
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003).
When an installment agreement call for periodic payments during the course of the
contract, a cause of action for nonpayment accrues for each missed payment. See
Crown Asset Mgmt., 2009 WL 578633, at *2; Gardner v. Cummings, No. 14-04-
01074-CV, 2006 WL 2403299, at *2 (Tex. App.—Houston [14th Dist.] Aug. 22,
2006, pet. denied); Hoarel Sign Co. v. Dominion Equity Corp., 910 S.W.2d 140,
144 (Tex. App.—Amarillo 1995, writ denied); Townewest Homeowners, 826
S.W.2d at 640; Intermedics, Inc. v. Grady, 683 S.W.2d 842, 845 (Tex. App.—
Houston [1st Dist.] 1984, writ ref’d n.r.e.). The defendant must prove when a
cause of action accrued to establish that the statute of limitations is applicable as a


                                          19
bar to the plaintiff’s case. Intermedics, 683 S.W.2d at 845.

      Here, Wood’s suit to recover on Pyramid’s debt was filed on September 21,
2009. We already have determined fact issues exist as to the existence of an
installment contract that covered the October 25 proposal and extended past
September 22, 2005, and as to Pyramid’s failure to pay any installments past such
date. In other words, some evidence exists that Pyramid made its last payment on
the installment contract in October 2005, when there were still additional periodic
payments due to Wood on the October 25 proposal. Moreover, Pyramid has not
pointed us to any evidence sufficient to establish as a matter of law that Wood’s
cause of action commenced on April 19, 2005, or July 15, 2005, or any other date
outside the statute of limitations. 12 As a result, Pyramid has not satisfied its burden
to conclusively establish that Wood’s cause of action accrued outside the statute of
limitations. Because Pyramid has the burden of proof on this affirmative defense,
and because it failed to prove it was entitled to it as a matter of law, we conclude
that we cannot sustain JNOV on this ground. See Sbrusch, 818 S.W.2d at 394.

      We cannot conclude that there is a complete absence or no more than a
scintilla of evidence supporting the existence of an installment contract and of
Pyramid’s breach, or that the evidence conclusively establishes that no installment
contract existed and Pyramid did not breach it. See Ramirez, 159 S.W.3d at 903.
We also cannot conclude that Pyramid has conclusively proven its affirmative
defense of limitations. See Mosqueda, 223 S.W.3d at 576.

      Therefore, we sustain Wood’s issue and must reverse the trial court’s JNOV
unless Pyramid otherwise presents a successful cross-point to merit a new trial.

      12
         On summary judgment, Pyramid previously had argued that the accrual date was
January 5, 2005, when the carrier initially denied Pyramid’s claim. See Wood, 2012 WL
2394053, at *4. At trial, Pyramid argued that the accrual date was October 27, 2004, when
Wood completed work on the October 25 proposal.

                                           20
See Tex. R. Civ. P. 324(c); Burns, 880 S.W.2d at 151.

D. The evidence is factually sufficient to support Pyramid’s breach of its
   installment contract with Wood within the limitations period.

       In our review of the trial court’s granting of JNOV here, the core questions
are whether the evidence in the record supports the parties entered an installment
contract that covered the October 25 proposal and extended past September 22,
2005, and whether the evidence supports that Pyramid failed to pay any periodic
payment installments. We have already conducted our legal sufficiency review
and concluded it does. In one sentence, Pyramid simply reurges the no evidence
portion of its brief.

       Although there certainly were two conflicting versions of events put forth,
Pyramid has not demonstrated that the evidence is factually insufficient to support
the jury’s affirmative findings. After examining the entire record, considering both
the evidence in favor of, and contrary to, the challenged findings, and considering
and weighing all the evidence, we conclude that the jury’s findings that Wood and
Pyramid agreed that Pyramid would pay Wood for the October 25 proposal in
installments due on or after September 22, 2005, and that Pyramid failed to pay
any such installments, was not so contrary to the weight of the evidence as to be
clearly wrong and manifestly unjust. See Jackson, 116 S.W.3d at 761–62.

       Also within its cross-point, Pyramid singularly asserts that the statute of
limitations vitiates the jury’s verdict. However, we already have concluded that
the trial court’s JNOV cannot be sustained on limitations grounds.

       We overrule Pyramid’s cross-point.




                                        21
                            IV.      CONCLUSION

      Therefore, we reverse the trial court’s order granting JNOV, and render
judgment reinstating the jury’s verdict for damages in the amount of $202,000.00
and attorney’s fees in the amount of $16,178.75. We remand solely for the trial
court to calculate and award pre- and post-judgment interest as allowed by law.


                                      /s/    Marc W. Brown
                                             Justice



Panel consists of Justices McCally, Brown, and Wise.




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