Opinion
No. 11-07-00161-CV
Opinion filed September 25, 2008.
On Appeal from the County Court, of Howard County, Texas, Trial Court Cause No. C-5473.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
MEMORANDUM OPINION
Kinard's Plumbing sued Don (Ducky) Robertson, Ricky Robertson, and Robertson Heating and Air Conditioning in small claims court to recover $4,550.81 in unpaid labor and materials. Kinard's recovered a judgment for the requested amount, and defendants appealed to county court. The county court conducted a bench trial and rendered judgment for Kinard's against Ricky Robertson and Robertson Heating and Air Conditioning for $4,550.81. Because there was no evidence to support this judgment, we reverse and render.
It is noted that the notice of appeal states "Ricky Robertson, individually and d/b/a Robertson Heating and Air Conditioning."
I. Standard of Review
Defendants challenge the judgment contending that it is supported by legally insufficient evidence. In considering a legal sufficiency challenge, we review all the evidence in the light most favorable to the prevailing party, indulging every inference in their favor. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). Kinard's brief is replete with copies of invoices, pictures, affidavits, and other documentary evidence. None of this documentation was introduced into evidence and, therefore, may not be considered on appeal. Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848-49 (Tex. 2004).
II. The Evidence
The elements of a breach-of-contract claim are as follows: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by the plaintiff as a result of the breach. Valero Mktg. Supply Co. v. Kalama Int'l, 51 S.W.3d 345, 351 (Tex.App.-Houston [1st Dist.] 2001, no pet.). Defendants contend that Kinard's introduced no evidence of a contract between itself and any of the defendants, introduced no evidence of the labor or materials delivered, and introduced no evidence of the amount each defendant owed.
Charles Kinard appeared on behalf of Kinard's and was its only witness. Charles testified that there was an agreement to run three commodes and, apparently, a sink and gas line for $4,000. He described additional charges for pipes under a building, repairing a clean-out, and modifying a gas line. He testified that the total bill was $4,550.79. Charles did not say with whom the agreement was reached. He referenced conversations with Ricky, who we assume was the defendant Ricky Robertson, but he did not describe whether Ricky was acting individually or on behalf of either or both of the other defendants. Charles referred to some invoices, and the trial court asked to see the invoices; however, he did not introduce those into evidence or otherwise indicate who was invoiced.
The judgment reflects the amount of $4,550.81; however, the amount stated in the testimony was $4,550.79.
When the evidence is reviewed in the light most favorable to Kinard's, it indicates that Kinard's had an agreement with someone and that it has unpaid invoices totaling $4,550.79 for this work. Kinard's did not, however, introduce legally sufficient evidence to establish that it had an agreement with either Ricky Robertson or Robertson Heating and Air Conditioning. Defendants' issue is sustained.
III. Holding
The judgment of the trial court is reversed, and judgment is rendered that Kinard's Plumbing take nothing.