Opinion
No. 05-06-01626-CV
Opinion Filed January 17, 2008.
On Appeal from the County Court at Law No. 3 Dallas County, Texas, Trial Court Cause No. CC05-10987-C.
Before Justices O'NEILL, RICHTER, and LANG.
MEMORANDUM OPINION
This appeal from a bench trial involves an oral contract for foundation repairs and excavation of dirt. Appellant Jean Martin, appearing pro se in both the trial court and on appeal, challenges the trial court's judgment in favor of Appellees Robert Brasuel and Tommy Garrett d/b/a Pro-Tech Foundation ("Pro-Tech"), also appearing pro se in the trial court, for $5,500.00 in damages and $1,275 in attorney's fees. Pro-Tech did not file a response brief. Martin generally challenges the factual sufficiency of the evidence to support the trial court's judgment. We affirm in part and reverse and render in part.
The trial court granted Pro-tech's attorney's motion to withdraw as attorney of record some time prior to trial.
Factual Background
Martin owned a house that suffered fire damage and required certain repairs. She hired Lloyd "Pete" Peterson in August 2004 to repair the damage, which he claimed included replacing floor joists and leveling piers on the pier and beam foundation. Martin then put the house on the market; however, on June 15, 2005 an inspector said some dirt needed to be removed from the crawl space for accessibility. She then took the house off the market to get the dirt removed.
Later that month, Martin contacted Pro-Tech regarding possible repairs. The parties disagree about the scope of the repairs: Martin contends she only requested Pro-Tech remove dirt in the crawl space, which they failed to do; Pro-Tech argues the parties orally agreed to removal of the dirt and foundation repairs. After Pro-Tech completed the repairs, Martin refused payment. Pro-Tech sued Martin for breach of contract. After a bench trial, the court found in favor of Pro-Tech and awarded $5,500.00 in damages and $1,275.00 in attorney's fees. This appeal followed.
We will provide further details below when necessary in support of the factual sufficiency review.
Standard of Review
When, as here, no findings of fact or conclusions of law are requested or filed, we imply all necessary findings in support of the trial court's judgment. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Casino Magic Corp. v. King, 43 S.W.3d 14, 19 (Tex.App.-Dallas 2001, pet. denied). However, when a reporter's record is included in the appellate record, the implied findings may be challenged for factual sufficiency. Casino Magic Corp., 43 S.W.3d at 19. We review implied findings by the same standards we use in reviewing the sufficiency of the evidence to support a jury's answers or a trial court's fact findings. Id.
When a party challenges the factual sufficiency of the evidence on an issue on which it did not have the burden of proof, the appellant must demonstrate the evidence is insufficient to support the adverse finding. Id. In reviewing this point, we consider, weigh, and examine all the evidence presented at trial. Id. We set aside a finding for factual insufficiency only if the evidence supporting the finding is so weak as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In conducting our factual sufficiency review of the evidence, we are mindful that the trial court, as fact finder, was the sole judge of witness credibility and the weight to be given their testimony. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005); G.M. Houser, Inc. v. Rodgers, 204 S.W.3d 836, 841 (Tex.App.-Dallas 2006, no pet.).
Discussion
In her first issue, Martin asserts because she hired Lloyd "Pete" Peterson to make foundation repairs in August 2004, it is not logical that she would have hired Pro-Tech to do the same repairs. Additional repairs were unnecessary; therefore, the evidence is factually insufficient. Although the record is replete with "he said, she said," after reviewing the entire record and giving deference to the trial court's credibility determinations, we cannot agree the evidence supporting the finding is so weak as to be clearly wrong and manifestly unjust.
After the fire, Peterson replaced floor joists and leveled the piers supporting the joists in the kitchen and main bathroom. He testified that when he replaced the joists, he did not observe any rotting beams under the house. Further, he did not leave any rotting wood under the house except for "maybe little scraps." During Pro-Tech's later inspection of the foundation, Steven Brasuel stated he went under the house, crunched one of the rotten beams with his hands, and showed it to Martin. Martin called Peterson and he told her repairs were unnecessary because when he performed the work, there was no rotting wood, the original beams were in good condition, and the home had previously passed inspection.
Dan Westbrook, a Dallas City inspector, testified he inspected the home after the Peterson repairs. His inspection, however, was strictly limited to the fire damage and not the basic structure of the home. The inspection report showed Westbrook performed an Inspection Type Code 130, which is a framing inspection. Although he testified this could have included the foundation's floor joists if they were exposed at the time, he admitted the specific code for a foundation inspection was 120. He further testified a review of city records revealed no history of anyone inspecting the foundation. The history showed only the framing was inspected. Based on this contradictory evidence, the trial court was free to believe the foundation had not been previously inspected and needed repair based on Brasuel's observations. Because the finding is not so weak as to be clearly wrong and unjust, we overrule Martin's first issue.
In her second issue, she contends the evidence is insufficient to establish Pro-Tech was authorized to make additional foundation repairs and questions whether they could make such extensive repairs in two days. Here, the trial court was again faced with contradictory testimony between Martin and Pro-Tech. Martin claimed she hired the company to only remove dirt from the crawl space under the house, but Brasuel testified they agreed to removal of the dirt and repair of the pier and beam foundation. He testified he met with Martin and her parents, they reached an agreement on the necessary repairs, and he left Martin a written estimate. Martin called back within fifteen minutes, agreed to the terms of the estimate, and told him to do the work as soon as possible. Pro-Tech agreed to do the work on June 28-29, 2005.
Martin's mother arrived at the house both mornings and unlocked the house for the seven workers. Although the testimony is conflicting on whether she stayed at the house during the repairs and saw the men unloading all the material to replace the pier and beams, the trial court was free to determine credibility and believe Pro-Tech's version of events. See City of Keller, 168 S.W.3d at 819; Duran v. Garcia, 224 S.W.3d 309, 314 (Tex.App.-El Paso 2005, no pet.) (although trial court heard conflicting testimony, it had discretion to believe one witness over the other).
The same is true for Pro-Tech's testimony regarding the extensive foundation repairs the crew of seven completed while working over eleven hours both days. The only testimony Martin provided to challenge the likelihood of the work being completed in the short amount of time was from Peterson, who testified that although possible, he did not think it was likely. We cannot conclude this testimony is so compelling that the trial court's contrary finding is so weak as to be clearly wrong and manifestly unjust. We overrule Martin's second issue.
In her third issue, she argues the evidence is insufficient to establish Pro-Tech removed the dirt from the crawl space. Testimony from several witnesses establishes otherwise. Brasuel stated his crew removed approximately forty wheelbarrows of dirt and used it to fill holes in the yard. No one could get under the house for repairs or inspections until it was removed. The trial court also reviewed pictures showing the dirt level under the house, which indicated Pro-Tech completed the work.
Martin argued the pictures actually showed a moisture level; however, the trial court was again free to determine the relevance and weight to be given such evidence.
Thomas Keiss, an engineer hired by Martin to provide an engineering report, conducted an inspection on July 7, 2005 and was able to move around under the crawl space of the house. Thomas Suazo inspected the house on October 14, 2005 and testified it appeared dirt had been removed from the crawl space because he was able to get underneath the house. He did not see any holes in the yard where dirt was used to fill in; however, he agreed after four months, it was likely grass had grown and covered any possible holes. Based on this evidence, the trial court's finding that Pro-Tech removed the dirt is not so weak and against the great weight and preponderance of the evidence as to manifestly unjust. We overrule Martin's third issue.
In her fourth issue, she contends the evidence is insufficient because Pro-Tech's receipts from Home Depot show material was purchased, but not necessarily installed, and it provided no evidence that it paid its employees for the work performed. First, whether Pro-Tech paid its employees for the job is not relevant to whether it actually performed the work for Martin. Even if Pro-Tech failed to compensate its employees, this would not excuse Martin from her agreed obligation to pay for the work performed. Thus, this argument is without merit. Second, the record is replete with testimony confirming Pro-Tech performed the foundation repairs. Martin's mother saw the men unload the material, and the court heard testimony she remained on the premises during the two days of construction. Brasuel provided details of how they replaced all the beams underneath the house by putting them through the outer vents. This process took a crew of seven two full days, working over eleven hours a day. Thomas Keiss stated in his July 7, 2005 inspection that he found new beams and joists under the house. Thomas Sauzo testified that when he looked under the house during his October 14, 2005 inspection, he could see quite a bit of the woodwork had been replaced. Thus, we conclude the evidence is factually sufficient to support the trial court's finding that Pro-Tech used material purchased from Home Depot to perform the necessary foundation work. We overrule Martin's fourth issue.
In her fifth issue, Martin claims the judgment resulted from sympathy and passion. To support her claim, she relies on the following statement by the trial judge. "I understand that. I really am following you because my dad worked in construction." After reading the statement in context, it is clear the trial judge was simply stating she understood how Pro-Tech replaced the beams because her father was in construction, not that she sympathized with them. Based on the other evidence presented, this isolated statement is not sufficient to support Martin's sympathy and passion allegation. We overrule her final issue.
Finally, we note in her statement of the case Martin asserts "Appellee offered no evidence documenting or supporting legal fees." We agree. The burden of proof was on Pro-Tech to establish its reasonable and necessary attorney's fees. Wagner v. Edlund, 229 S.W.3d 870, 875 (Tex.App.-Dallas 2007, pet. denied). An award of attorney's fees is reviewed under an abuse of discretion standard, subject to the requirement that any fees awarded be reasonable and necessary, which we review for sufficiency of the evidence. Doncaster v. Hernaiz, 161 S.W.3d 594, 606 (Tex.App.-San Antonio 2005, no pet.).
In awarding attorney's fees, the trial judge must take into account various factors including the nature and complexity of the case, the nature of the services provided by counsel, the time required for trial, the amount of money involved, the client's interest that is at stake, the responsibility imposed upon counsel, and the skill and expertise required. Smith v. Patrick W.Y. Tam Trust, 235 S.W.3d 819, 828 (Tex.App.-Dallas 2007, pet. filed). Here, Pro-Tech offered no witness testimony or other evidence to satisfy any of these factors. In fact, the only reference to attorney's fees occurred at the end of trial when Pro-Tech argued "Your Honor, our original petition to the court asked for $5,500 of money she owes us and $3,000 for attorney's fees. That's what we feel like that we're out. . . ." Martin then argued "there's been no evidence they paid any attorney fees, but the burden of proof is on them. . . ." Thus, we conclude without evidence showing the reasonableness and necessity of the fees, the trial court abused its discretion in awarding $1,275 to Pro-Tech.
We reverse and render the judgment as to the award of attorney's fees. The judgment in all other aspects is affirmed.