Summary
holding that no jury was needed because pictures submitted into evidence made it clear that extensive damage had rendered building materials useless
Summary of this case from Excel Fortress Ltd. v. WilhelmOpinion
NO. 01-18-00135-CV
08-01-2019
AKIB CONSTRUCTION INC., Appellant v. David SHIPWASH, Appellee
Jennifer L. Lovelace, Tyler Craig, 1601 8 Ave, Fort Worth, TX 76104, for Appellant. Albert Lee Giddens, 3009 Strawberry, Pasadena, TX 77502, for Appellee.
Jennifer L. Lovelace, Tyler Craig, 1601 8th Ave, Fort Worth, TX 76104, for Appellant.
Albert Lee Giddens, 3009 Strawberry, Pasadena, TX 77502, for Appellee.
Panel consists of Justices Keyes, Higley, and Landau.
Evelyn V. Keyes, Justice
In this case, appellee David Shipwash sued appellant AKIB Construction, Inc. for breach of contract, arising out of an agreement for AKIB to facilitate the dismantling, moving, and reassembly of a steel building. AKIB filed a counterclaim for breach of contract. After a bench trial, the trial court rendered judgment in favor of Shipwash, finding that AKIB breached the parties' contract and awarding Shipwash $30,424.50 in damages, plus pre- and postjudgment interest, attorney's fees, and court costs.
In three issues, AKIB contends that the trial court erred in rendering judgment in favor of Shipwash because: (1) Shipwash did not present expert testimony, which was necessary to support his contention that AKIB breached the contract by failing to properly dismantle the building; (2) factually insufficient evidence supports the trial court's finding that AKIB's method of dismantling the building damaged the metal, constituting a breach of contract; and (3) the damages awarded to Shipwash are not supported by Shipwash's pleadings, as Shipwash only pleaded for general "out of pocket" damages, but did not specifically plead for the recovery of special reliance damages.
We affirm.
Background
David Shipwash owns a company in Deer Park, Texas, that handles hazardous materials. In early 2015, he was looking to expand his business and build a new building when he met Manzoor Memon, president of AKIB Construction, and was impressed by the steel work in a building Memon owned. Memon showed Shipwash a steel building in Dickinson, which was owned by the Dickinson Independent School District and was about to be taken down, and Memon and Shipwash discussed dismantling the building and reassembling it on Shipwash's property. Shipwash acknowledged that the sheet metal on the outside of the building was in a state of disrepair, but he had plans to "cut the bottom [of the sheet metal] off, put brick on it, stone on it." He stated that the "red irons," or the steel beams that formed the structure of the building and were bolted together, and the "purlins," which attached the sheet metal to the red irons, were in good shape. Memon offered to facilitate purchasing the building, dismantling it, and moving it to Shipwash's property, where the parties would "repair the metal that we could and utilize it to rebuild another building."
On February 23, 2015, Memon, on behalf of AKIB, and Shipwash entered into a contract to facilitate the purchase, dismantling, removal, storage, and eventual reassembly of the building. The contract included the following provisions:
1. [AKIB will w]ork as Facilitator to purchase Steel building located at [an address in Dickinson.]
2. The total price of the steel building will be $40,000 which will include all steel sheet metal fixtures[,] fittings[,] doors[, and] windows of the property located at [the Dickinson address].
3. Joe's Construction and Erection will be responsible for removing, transportation of all the items given above at storage facility located at [an address in La Porte, Texas]. An additional $5000 will be paid to Joe's Construction and Erection for this phase of the job.
4. [AKIB] Construction Inc. will be responsible to make foundation drawings based on the steel structure for future use of the steel building. [AKIB] Construction shall be paid additional $2000 for developing these drawings.
5. The payments will be made as follows: $14000.00 upon signing the contract, $2000 upon completion of
drawings, $14500 upon first delivery of steel and $14500 on second delivery, $2000 upon completing of delivery of all the steel and sheet metal.
6. Joe's Construction and Erection will be given the job to erect this steel and sheet metal[ ] walls at new location as soon as new land is acquired for $3.50 per sq. ft. of the building. All other additional work like concrete [s]and blasting and painting of steel will be billed separately.
7. [AKIB] Construction Inc. shall supervise the job and complete the job including assistance in getting the occupancy permit for the new warehouse at future location per the conditions given below.
Thus, the parties agreed that AKIB would facilitate the purchase of the building for $40,000, and it would oversee the dismantling and reconstruction of the building, which would be performed by Joe's Construction. Because the building was to be reassembled on Shipwash's property, AKIB was also to provide Shipwash with a drawing of the building, "a footprint," so the parties could reconstruct the building on Shipwash's property in the same manner in which it had been constructed on the Dickinson Independent School District property.
The contract also included the following schedule of fees and payments owed to AKIB:
1. $5000 in advance payment before commencing construction phase of the project. All other payments will be done as per progress of the work.
2. [AKIB] Construction Inc. will charge 25% of the total construction cost of the project as management fees for all the construction services provided as given above. All other work will be billed at a rate of $50 per hour based on the scope of the work performed.
3. [AKIB] Construction shall provide owner [Shipwash] bi-monthly cost analysis of the project on excel sheet or as required to make a bank draw if required. [AKIB] will bill the fees based on the work done and owner/Bank shall reimburse [AKIB] within seven working days of the billing.
4. Owner will pay for all the materials, equipment rental, permits, insurance and labor contracts directly to the sub-contractors. [AKIB C]onstruction will negotiate the contract prices[;] however[,] owner shall have the right to award contracts to contractors they choose but the fee schedule shall remain the same.
5. [AKIB] shall be paid its total fees for the complete project even if owner decides to change the general contractor to complete the project. In case of termination of this contract by the owners [AKIB] shall be paid the fees based on the total cost incurred by the owners to complete the job.
In March 2016, Shipwash filed suit against AKIB for breach of contract, alleging that AKIB "failed to properly deconstruct the building and failed to deliver any of the building to [Shipwash's] storage facility." Shipwash sought the recovery of "[a]ctual or economic damages for out of pocket damages."
AKIB answered and asserted affirmative defenses, including impossibility of performance, frustration of purpose, anticipatory repudiation, failure to satisfy a condition precedent, and offset. AKIB later amended its answer and asserted counterclaims against Shipwash for breach of contract and promissory estoppel. AKIB alleged that it fulfilled its obligations under the contract by "securing, paying for, dismantling, storing, transporting, and delivering the steel building" to Shipwash, but Shipwash refused to accept delivery of the building and did not pay AKIB the amounts agreed to in the contract.
At a bench trial, the trial court asked Shipwash several questions about how the steel building was constructed and how it should be taken down, such as whether the workers needed to "un-weld" the red irons that formed the frame of the building. Shipwash testified that the red irons were bolted together with large, one-inch bolts and that the red irons were heavy, requiring a crane to move them. He also testified that if the building was not taken down properly, and pieces were allowed to fall to the ground, the metal could bend at the ends and workers would be unable to reassemble the building because the various pieces would no longer match up properly. He characterized the dismantling of the building as "not a simple process."
Shipwash testified that he paid AKIB $14,000 upon signing the contract, and AKIB started on the project. Shipwash kept one of his own workers at the jobsite so he could monitor and oversee what was occurring. Although the contract required AKIB to complete blueprint drawings of the building so it could be reassembled in the same configuration on Shipwash's property, by the time the workers had taken the sheet metal down and were ready to start taking the red irons down, AKIB had not given any drawings to Shipwash. Shipwash ended up hiring another person to complete the drawings for $2,500.
During Shipwash's testimony, the trial court admitted a video recording of the building being dismantled, as well as multiple pictures depicting the sheet metal after it had been removed and the red irons. Shipwash testified that, during the dismantling process, the workers bent the sheet metal that had formed the outside walls of the building. Some pieces of sheet metal were rusted along the bottom. Shipwash testified that that was not necessarily a problem because the rusted parts could be cut off and the remainder of the piece used, but he stated that "when the whole rest of [the sheet metal piece] is all bent up, there's no need to cut the bottom off" because the entire piece cannot be used. Several of the pictures depicted sheet metal and retractable garage-type doors from the building lying in disorganized piles, and Shipwash testified that "whoever took this down had no intention of anybody ever putting this back up." He stated, "[I]f somebody was to take this down in a manner so they could reuse it, this would all be single sheets [of sheet metal] or a stack of single sheets over to the side. We're just showing that there's multiple piles of sheet metal laying all over the property."
The video recording is not included in the appellate record. The trial court, when questioning Shipwash about the parts of the building that he had expected to be able to use in the reassembly, referred to the video recording, stating that the video showed that the red irons "all just kind of fell down at once" during the dismantling.
The trial court also admitted pictures of the red irons from the building. One of the pictures depicted a red iron that had been cemented in a concrete block and parts of the concrete had been broken off. Shipwash testified that, with repairs, this red iron could have been used again. He stated, "We expected stuff like this" and explained that the red iron could "be sandblasted and a new plate welded on it." Some of the red irons had ends that were rusted with portions broken off, and Shipwash testified that the ends of these beams would need to be cut off, and even then, because they had been shortened, the beams could not be used in the reassembly of the building. Instead, these particular beams could only be used to construct a separate structure, such as a lean-to.
Shipwash testified that AKIB never delivered any part of the disassembled building. He stated that when he saw the video of the dismantling, he spoke with his son Matt, who had been having routine conversations with Memon during the dismantling process, and told him to offer AKIB a "salvage price" for the metal. He stated that he did not get anything of value from his contract with AKIB.
Shipwash also testified concerning the costs he had expended in connection with this project. He paid an initial $14,000 to AKIB prior to the dismantling pursuant to the contract. He paid $2,500 to a third party to complete the blueprints of the building. Shipwash had also prepared space on his property for the building to be reassembled, including clearing the land, laying gravel and sand, leveling the land, and laying crushed asphalt. He paid $500 to put material on top of the clay soil, $3,274.50 for a sand and rocks mix to put on the site, $2,650 for the leveling of this material, and $7,500 to place crushed asphalt on the site. AKIB did not object to any of this testimony.
Shipwash's counsel discussed this evidence with the trial court during closing argument, and AKIB's counsel again did not object.
Matt Shipwash, David Shipwash's son, was also involved with the project, acting as an observer during the dismantling. Matt disagreed that the building was dismantled, instead stating that "it was demolished." He testified that the primary problem with the way this building was taken down was that the workers, instead of removing the bolts with a wrench, used an oxygen acetylene torch to blow the bolts out of their placements, which caused oversized holes in the metal where the bolts used to be. When asked if, after removing bolts in this way, the metal would be reusable, Matt testified, "I couldn't say if it was reusable. You would have to convince an engineer somewhere that it was reusable." He stated that the metal needed to have structural integrity and needed to withstand up to 150 miles-per-hour wind and that the way a building is bolted or welded together affects the structural integrity and "you change that once you blow holes" in the metal. He also testified that because pieces of the building were allowed to fall to the ground, "all of the ends of the metal were bent" and the bent ends could not be re-used.
Matt testified that he sent a text message to Memon, informing him that "the condition of the metal was unacceptable, that I felt like that he did not take care of the metal in any way, shape or form and that it was not acceptable to us." Matt then met Memon at the jobsite, and they looked at "the red irons that had holes blown through [them]" and "the sheet metal that had been wadded up in a ball." Memon stated "that it wasn't that bad," but Matt informed him that the metal "was not usable for its intended purposes" and that it had value only as scrap.
Johnny Rivera, a field service supervisor for a company owned by Shipwash, testified that he was often present at the jobsite during the dismantling, and one of his duties was to mark each piece that was dismantled so, when it came time to reassemble the building, the workers would know which piece went where. He stated that, at first, the dismantling process went well, but as the project continued, he felt that the workers started "rush[ing] along" and "tearing [the building] down." He was not present at the jobsite at the time the video recording was taken, but he was present after, and he noticed a lot of damage to the purlins, the structure, and the "cross members," including bent ends for "a good portion of them." He stated that he saw the workers unbolting pieces of the building in the early stages of the dismantling, but as time went by, the workers started using a torch to blow the bolts out of their holes. Rivera testified that he did not consider the metal removed from the building to be reusable; instead, he considered it to be scrap.
Rivera testified on cross-examination that he had never been involved in the dismantling of steel buildings or in the assembling of buildings, although he had been involved, "years back," in removing bolts from columns and purlins. He stated that these bolts were around "an inch and an eighth" in size and that he removed the bolts with a wrench.
Memon testified that he was present at the jobsite every day supervising the workers from Joe's Construction, who were actually dismantling the building. He stated that there was no damage to the main columns of the building. He was not present at the time the video recording was taken. He disagreed that the building was dismantled in an improper way stating, "When I see the video I see that all the purlins were secured. They were trying to remove it. Something happened. It fell down." Memon also disagreed that the red irons of the building were destroyed during the dismantling process. He also stated that, despite falling to the ground, the purlins were not damaged, and even if they had been, they cost around $20 to $25 each and could have easily been replaced. He further stated that the building was sixty years old, that wear and tear would be "natural" for a building that age, and that Shipwash, who viewed the building at least three times before signing the contract, knew the building was old and had rusted in places but agreed to the contract anyway.
With respect to the blueprint of the building, Memon testified that he hired a third party designer to prepare the drawings, but Shipwash informed him that he had already had another company prepare the drawings, so Memon terminated the contract he had with his designer. Memon testified that he told Shipwash that, if Shipwash had had another party complete the drawings, Memon would not charge Shipwash the $2,000 required under the contract for the drawings. Memon also testified that one load of steel was delivered to Shipwash after the dismantling, but Shipwash "refused to take the building" and sent the steel back to the jobsite, and the job was not completed because Shipwash fired AKIB. He testified that, under the contract, Shipwash was supposed to pay AKIB $14,500 upon the first delivery of steel, but AKIB did not receive these funds because Shipwash refused to take delivery of the steel.
Matt Shipwash testified that AKIB never delivered any sheet metal or red irons.
Memon testified that he received a text message from Matt Shipwash, on behalf of David Shipwash, on May 28, 2015, that stated:
I am not pleased with the outcome of the [Dickinson] building. I don't see how this deal has gone as planned in any way. At this point in time the delays, the fact that the building was TORN down (leaving the metal in unusable condition) and the overall general lack of care for the integrity for the metal has left me with no choice but to negate our deal. I feel that nothing we spoke of has been correct, and we are too far away on value on the current building. The current value that we are willing to pay for
the complete [Dickinson] project is $8000.
Memon stated that, prior to receiving this test message, he had never had any communications from the Shipwashes indicating that they were dissatisfied with the building or how the project had been progressing.
According to Memon, the parties' contract was only for the steel structure, not for the sheet metal that made up the siding of the building, which was aluminum. Memon testified that Shipwash should have accepted the steel that was depicted in the pictures admitted into evidence, stating:
It is my position that the steel was in good shape. They knew it was 60-year-old steel. Some of it will be crushed to get out of the concrete and this could have been used and we had a contract that we were to refurbish it, re-blast it and put it back. But then they [Shipwash] wouldn't give us the opportunity to do it. So I think they had already decided not to do this building because what I understand is that they were installing a new building in their premises and they didn't want this building anymore. They were finding excuses to just terminate my contract and not buy the steel.
He stated that the terms of the contract contemplated that some of the steel would need to be blasted and sanded before the building could be reassembled. Memon testified that he believed Shipwash was the party that breached the contract, and he wanted Shipwash to pay AKIB the full amount under the contract, or $40,000.
AKIB called Wade Howard, the vide-president of a steel building erection company, to testify as an expert witness. He stated that he had spent his entire career, since graduating high school in 2001, working with steel buildings, and he stated that his specialty was working with pre-engineered metal buildings. He testified that he had been involved with the dismantling and assembly of both new and used steel buildings. He had also been involved in projects that required the refurbishing of used steel building components, including a dismantling project where "salty air and concrete" had rusted plates at the ends of columns, and he had to cut off the bottom of the columns and weld on new plates before reassembling the building elsewhere. He also testified that oxygen acetylene torches are commonly used when dismantling steel buildings, "especially if you have a 50- to 60-year-old plus building," although he stated that he would use a wrench to remove a bolt before he tried a torch. He also testified that, with older buildings, sheet metal is attached to the building with screws and that, upon removing the pieces of sheet metal, there are "tons of holes in them."
Howard viewed the pictures of the building, as well as the video of the purlins falling to the ground. He stated that he did not see any of the main frame steel fall to the ground, and he opined that "the main frame steel was unharmed" and that it could be re-used in another construction project. He acknowledged that if he were dismantling the building, he would not have allowed the purlins to fall to the ground. He stated that the damaged purlins could be refurbished and reused, and they could also be replaced "at a pretty minimum cost." He also stated that he saw the pictures of the rusted columns that had been encased in concrete, and he testified that the ends would need to be cut off and new ends fabricated before they could be re-used. He opined that the building "could have been re-erected on a different job site."
On cross-examination, Howard agreed that the dismantling process used in the video recording was not the proper way for the building to be taken down. He stated that he had not seen any pictures of what the main frame looked like after the tear down, nor had he seen pictures of the ends of columns or the holes where the bolts had been blown out. He stated that if bolts had been blown out of a red iron with a torch, the holes for the bolts would not be able to be re-used, so a new plate with new holes would need to be welded on. He stated that if he were using a torch to remove bolts, he would use the torch to cut off the head of the bolt; he would not use the torch to blow the bolt back through the hole. He stated that any "secondary steel" that was damaged, such as purlins and the sheet metal, could be replaced with relatively little expense.
After the bench trial, the trial court signed a final judgment finding in favor of Shipwash on his claim for breach of contract against AKIB. The trial court awarded Shipwash $30,424.50 in damages, pre- and postjudgment interest, $27,700 in trial-level attorney's fees, $27,500 in conditional appellate-level attorney's fees, and court costs.
The trial court made the following findings of fact:
1. On or about 2/23/15 Plaintiff [Shipwash] and Defendant [AKIB] signed an agreement for the purchase of a steel building on Dickinson ISD school property.
2. Defendant prepared the agreement.
3. The agreement required the Defendant to work as a facilitator to purchase the steel building.
4. The agreement required the Defendant to make foundation drawings.
5. The agreement required the Defendant to supervise the job and complete the job including assistance in getting the company permit for the new warehouse.
6. The agreement called for Plaintiff to pay $14,000.00 upon beginning which Plaintiff did.
7. Defendant failed to make foundation drawings.
8. Plaintiff paid another party $2,500.00 to make the foundation drawing[s] that Defendant failed to make.
9. Defendant failed to properly supervise the job.
10. Defendant failed to obtain the permit.
11. The crew failed to properly disassemble the building.
12. The material from the building was damaged and unusable.
13. Plaintiff paid $500.00 to Charles Marta for material to prepare the building site.
14. Plaintiff paid $3,274.50 [t]o Scott Manuel to prepare the building site.
15. Plaintiff paid $2,650.00 to Charles Toppe to prepare the building site.
16. Plaintiff paid $7,500.00 to Action Paving to tamp down the building site.
17. Defendant never delivered the material to Plaintiff.
18. The agreement did not say "No Warranty."
19. Plaintiff was damaged a total of $30,424.50.
20. The parties stipulated that $27,700.00 would be reasonable and necessary attorney fees for Plaintiff.
21. Defendant did not seek economic damage[s].
22. Defendant breached the agreement.
The trial court's conclusions of law included conclusions that AKIB breached the contract, that the contract included an implied warranty that AKIB would perform in a workmanlike manner, that AKIB was indebted to Shipwash in the amount of $30,424.50, and that Shipwash was not indebted to AKIB.
AKIB filed a motion for new trial, which was overruled by operation of law. This appeal followed.
Necessity of Expert Testimony
In its first issue, AKIB contends that Shipwash was required to present expert testimony that AKIB caused the metal from the building not to be reusable because the reusability of previously-damaged metal was an issue not within the experience of a layperson. AKIB argues that because Shipwash did not present expert testimony on this point, Shipwash did not prove that AKIB materially breached the parties' contract.
A. Standard of Review and Applicable Law
Texas Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.
By contrast, if a witness is not testifying as an expert, the witness's opinion testimony is limited to an opinion that is "rationally based on the witness's perception" and is also "helpful to clearly understanding the witness's testimony or to determining a fact in issue." TEX. R. EVID. 701. Whether expert testimony is necessary to prove a particular issue is a question of law that we consider de novo. FFE Transp. Servs., Inc. v. Fulgham , 154 S.W.3d 84, 89 (Tex. 2004). Whether expert testimony is necessary is not an admissibility-of-the-evidence question; instead, it is question of what legal weight should be given to non-expert evidence in the record. Id.
In the negligence context, the Texas Supreme Court has held that expert testimony is necessary "when the alleged negligence is of such a nature as not to be within the experience of the layman." Id. at 90 (quoting Roark v. Allen , 633 S.W.2d 804, 809 (Tex. 1982) ). The court noted that, in making this determination, courts "have considered whether the conduct at issue involves the use of specialized equipment and techniques unfamiliar to the ordinary person." Id. at 91. In FFE Transportation Services , which involved whether a trucking company was negligent after a coupler assembly broke loose and separated from a trailer, causing an accident, the supreme court reasoned:
The upper coupler assembly, kingpin, and base rail of a refrigerated trailer are specialized equipment, and the proper inspection and maintenance of those parts involve techniques unfamiliar to the ordinary person. Few people not involved in the trucking industry are familiar with refrigerated trailers, the mechanisms for connecting them to tractors, and the frequency and type of inspection and maintenance they require. While the ordinary person may be able to detect whether a visible bolt is loose or rusty, determining when that looseness or rust is sufficient to create a danger requires specialized knowledge. Therefore, the layman does not know what the standard of care is for the inspection and maintenance of the upper coupler assembly, kingpin, and base rail of a refrigerated trailer.
Id. The supreme court thus concluded that, in that case, expert testimony was necessary to establish the trucking company's negligence. Id.
"Proof other than expert testimony will constitute some evidence of causation only when a layperson's general experience and common understanding would enable the layperson to determine from the evidence, with reasonable probability, the causal relationship between the event and the condition." Mack Trucks, Inc. v. Tamez , 206 S.W.3d 572, 583 (Tex. 2006) ; Seitel Data, Ltd. v. Simmons , 362 S.W.3d 782, 791–92 (Tex. App.—Texarkana 2012, no pet.). "Expert testimony is required when an issue involves matters beyond jurors' common understanding." Mack Trucks , 206 S.W.3d at 583 ; Seitel Data , 362 S.W.3d at 792.
The Texas Supreme Court has held:
The trier of fact is usually allowed to decide the issue of causation in cases of this nature: (1) when general experience and common sense will enable a layman fairly to determine the causal relationship between the event and the condition; (2) when scientific principles, usually proved by expert testimony, establish a traceable chain of causation from the condition back to the event; and (3) when probable causal relationship is shown by expert testimony.
Lenger v. Physician's Gen. Hosp., Inc. , 455 S.W.2d 703, 706 (Tex. 1970).
In Lenger , the supreme court further cautioned, "This does not mean that the court, in determining whether the issue should be submitted to the jury, must consider only evidence of one type to the exclusion of that falling into the other categories." Id. ; see also Seitel Data , 362 S.W.3d at 791 ("Generally, lay testimony establishing a sequence of events which provides a strong, logically traceable connection between the event and the condition is sufficient proof of causation."). "[W]hen expert testimony is required, lay evidence supporting liability is legally insufficient." Seitel Data , 362 S.W.3d at 791. But, "[c]onversely, when lay testimony can be used and the testimony establishes a sequence of events providing a strong, logically traceable connection between the event and condition, it is not just legally, but factually sufficient to support a jury verdict." Id. However, the plaintiff need show a causal connection between the event and the injury. Id.
In Seitel Data , the plaintiff, Simmons, contracted with Seitel to come onto his property and conduct seismic testing. See 362 S.W.3d at 784. Shortly after Seitel completed its testing, a water well on Simmons' property failed, and Simmons sued Seitel under both fraud and breach of contract theories, ultimately electing to recover solely on his contract claim. Id. at 784–85. One of the issues on appeal was whether expert testimony was required to prove that the seismic testing Seitel conducted caused the damage to Simmons's well. Id. at 785. In discussing whether expert testimony was required, the Texarkana Court of Appeals discussed several cases in the products liability and medical malpractice contexts in which the courts held that a "lay person's general experience and common sense will not enable that person to determine causation" in these highly technical and specialized areas. Id. at 789.
The Texarkana Court noted that the Texas Supreme Court has held that "lay testimony is adequate to prove causation in those cases in which general experience and common sense will enable a layman to determine, with reasonable probability, the causal relationship between the event and the condition" and that, generally, "lay testimony establishing a sequence of events which provides a strong, logically traceable connection between the event and the condition is sufficient proof of causation." Id. at 791 (citing Lenger , 455 S.W.2d at 706 and Morgan v. Compugraphic Corp. , 675 S.W.2d 729, 733 (Tex. 1984) ). The court refused to state a "bright-line rule" that expert testimony concerning seismic testing and an injury is necessary in every case, holding that, in that case, "a juror, applying commonsense understanding, can tie the relationship of the vibrations of the earth caused by seismic testing with reasonable probability to the concurrent abrupt sanding of a water well." Id. at 791–92. The court thus concluded that "although expert testimony is often helpful to the understanding of the effects of seismic testing and is often advised, when there has been convincing lay witness evidence presented (as here), it is not absolutely mandatory." Id. at 792.
B. Analysis
Here, the contract between Shipwash and AKIB required AKIB to facilitate the purchase, dismantling, transportation, and reassembly of a steel building from a site owned by the Dickinson Independent School District to property owned by Shipwash. The actual dismantling and reassembly of the building would be performed by Joe's Construction, but AKIB was to supervise this process. Shipwash sued AKIB for breach of contract, alleging that the building was dismantled in such a way as to render the metal unusable and unsuitable for reconstruction on Shipwash's property.
On appeal, AKIB argues that the "real question" in this case is whether it "facilitated dismantling a sixty-year-old steel building in such a way that harmed the already damaged steel to the point that it could not be reused, constituting a material breach of the contract." It argued that, as in FFE Transportation Services , in which the Texas Supreme Court held that expert testimony was necessary to establish whether a trucking company was negligent when a coupler assembly loosened and a trailer detached from a truck, the question whether the dismantling process in this case harmed the steel building was so highly technical that expert testimony was required. Under the facts of this case, we disagree.
At trial, the trial court admitted several pictures depicting what the building looked like before the dismantling process began as well as what pieces of the building looked like during and after the dismantling process. The "before" pictures show a steel building with functional doors and sheet metal that appears intact. Shipwash presented several pictures of the sheet metal and the doors after they had been removed from the building, and these pictures show pieces of sheet metal lying crumpled and bent in piles around the jobsite. Shipwash also presented pictures showing other components of the building, such as doors and retractable garage-type doors, lying bent and broken on the ground. Shipwash testified that "whoever took this down had no intention of anybody ever putting this back up" and that "if somebody was to take this down in a manner so they could reuse it, this would all be single sheets [of sheet metal] or a stack of single sheets over to the side."
Memon's testimony indicates a dispute between the parties concerning what was to be reassembled at Shipwash's property. Memon testified that the parties' contract was only for the dismantling and reassembly of the steel structure of the building and not the sheet metal, which was aluminum. The contract, however, provides: "6. Joe's Construction and Erection will be given the job to erect this steel and sheet metal walls at new location...." (Emphasis added.)
Although, as the Texarkana Court of Appeals noted in Seitel Data , it might be helpful for parties to present expert testimony concerning the proper method of dismantling steel buildings, we conclude that, in this case, a factfinder applying a "commonsense understanding" could consider the before and after pictures of the steel building and, with reasonable probability, reach a conclusion that the building was damaged during the dismantling process. See 362 S.W.3d at 791–92 ; see also Mack Trucks , 206 S.W.3d at 583 (stating that lay testimony constitutes some evidence of causation "when a layperson's general experience and common understanding would enable the layperson to determine from the evidence, with reasonable probability, the causal relationship between the event and the condition" and that expert testimony is required when issue "involves matters beyond jurors' common understanding"). We hold that Shipwash was not required to present expert testimony in this case to establish that AKIB breached the contract by failing to properly supervise the dismantling of the building.
We overrule AKIB's first issue.
Factual Sufficiency of the Evidence
In its second issue, AKIB contends that the trial court's judgment was against the great weight and preponderance of the evidence. Specifically, AKIB contends that Shipwash presented factually insufficient evidence that AKIB caused the metal to be unusable, thus breaching the contract, and because Shipwash could not demonstrate that AKIB breached the contract, his actions in failing to accept delivery of the materials excused any further performance by AKIB.
A. Standard of Review
In an appeal of a judgment rendered after a bench trial, the trial court's findings of fact have the same weight as a jury's verdict, and we review the sufficiency of the evidence supporting those findings by using the same standards to review jury verdicts. Ferrara v. Nutt , 555 S.W.3d 227, 235 (Tex. App.—Houston [1st Dist.] 2018, no pet.) ; see MBM Fin. Corp. v. Woodlands Operating Co. , 292 S.W.3d 660, 663 n.3 (Tex. 2009). When challenged, a trial court's findings of fact are not conclusive if, as here, there is a complete reporter's record on appeal. Choice! Power, L.P. v. Feeley , 501 S.W.3d 199, 208 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (citing BMC Software Belg., N.V. v. Marchand , 83 S.W.3d 789, 795 (Tex. 2002) ). We review a trial court's conclusions of law de novo. BMC Software , 83 S.W.3d at 794.
In a factual sufficiency review, we consider and weigh all of the evidence. Choice! Power , 501 S.W.3d at 209 ; see Crosstex N. Tex. Pipeline, L.P. v. Gardiner , 505 S.W.3d 580, 615 (Tex. 2016). When an appellant challenges the factual sufficiency of evidence supporting an adverse finding on which it did not have the burden of proof at trial, we set aside the verdict only if the evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, as to make the verdict clearly wrong and manifestly unjust. Crosstex N. Tex. Pipeline , 505 S.W.3d at 615 ; Choice! Power , 501 S.W.3d at 209. In a bench trial, the trial court, as the finder of fact, is the sole judge of the credibility of the witnesses. Puntarelli v. Peterson , 405 S.W.3d 131, 135 (Tex. App.—Houston [1st Dist.] 2013, no pet.) ; see Dupree v. Boniuk Interests, Ltd. , 472 S.W.3d 355, 364 (Tex. App.—Houston [1st Dist.] 2015, no pet.) ("In a bench trial, the trial court judges the credibility of the witnesses, determines the weight of testimony, and resolves conflicts and inconsistencies in the testimony."). B. Analysis
The essential elements of a breach of contract claim are: (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 as a result of the breach. APMD Holdings, Inc. v. Praesidium Med. Prof'l Liab. Ins. Co. , 555 S.W.3d 697, 707 (Tex. App.—Houston [1st Dist.] 2018, no pet.) ; Schlumberger Ltd. v. Rutherford , 472 S.W.3d 881, 892 (Tex. App.—Houston [1st Dist.] 2015, no pet.). A breach of contract occurs when a party fails or refuses to do something it has promised to do. APMD Holdings , 555 S.W.3d at 707 ; Mays v. Pierce , 203 S.W.3d 564, 575 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).
It is undisputed that the contract between the parties required AKIB to facilitate the dismantling and reassembly of the steel building and that it hired Joe's Construction to perform the actual dismantling work while Memon, AKIB's president, acted in a supervisory capacity. At a bench trial, the parties presented conflicting evidence concerning whether the building was damaged through the dismantling process. David Shipwash acknowledged that the building was not in perfect condition prior to the dismantling, and he testified that he had contemplated needing to make some repairs to the building when it was reassembled on his property. Specifically, he noted that the sheet metal was rusty in spots and "in disrepair" and that he had planned to "cut the bottom [of the sheet metal] off, put brick on it, stone on it." He also testified that he considered the red irons and purlins to be in good condition, but he had still expected there to be some damage to the red irons where they had been encased in concrete. He had initially believed that, if problems of that nature had been discovered, they could be fixed by sandblasting the red iron and welding a new plate to the red iron.
Section six of the contract provided that Joe's Construction would reassemble the building on Shipwash's property and provided: "All other additional work like concrete [s]and blasting and painting of steel will be billed separately."
Shipwash testified that, after the dismantling of the building, the damage was much more extensive than he had anticipated. He testified concerning how the sheet metal, doors, and retractable doors to the building had been left crumpled and bent at the jobsite, and he stated that cutting the rusty bottom portions of the sheet metal off would not solve any problems because the rest of the pieces were too bent to be used. He stated that it appeared to him that "whoever took this down had no intention of anybody ever putting this back up." Shipwash also testified concerning a video recording of a portion of the dismantling process that apparently depicted red irons and purlins falling to the ground. Several of the red irons had bent ends, and other red irons had pieces broken off at the ends where they had been encased in concrete. Shipwash testified that, while it was possible to cut the damaged ends of these red irons off, because they would then be shorter than other red irons, he would be unable to use them in the reassembly of the building. If they could be used, it would have to be in a new structure, such as a lean-to.
Matt Shipwash and Johnny Rivera also testified that, when dismantling the building, the workers used an oxygen acetylene torch to remove bolts from the structure of the building. They both testified that the workers used the torch to blow the bolts back through the holes into which they had been screwed, which was problematic because, in doing so, larger holes were created in the metal and those holes could not be used when bolting the structure back together during reassembly. David Shipwash, Matt Shipwash, and Johnny Rivera all testified that they could not use the metal for the intended purpose of rebuilding the building on Shipwash's property and that, instead, the only value the metal had was as scrap.
AKIB presented contrary evidence in the form of testimony from Memon, as well as AKIB's expert, Wade Howard. Memon acknowledged the video recording, but he disagreed that the building had been improperly dismantled, and he also disagreed that any portion of the building, specifically the red irons and the purlins, had been damaged. He testified that even if the purlins had been damaged, they were relatively inexpensive to replace. He stated that the building was around sixty years old, that it had wear and tear that one would normally expect to see with a building that age, and that Shipwash had viewed the building multiple times before signing the contract. Memon testified that he believed the steel structure of the building was in good shape and that, while some portions of the red irons needed to be sandblasted prior to reassembly, that had been contemplated by the contract and was not a basis for negating the parties' deal.
Howard, who had spent nearly two decades working with steel buildings, opined that the "main frame steel" structure of the building was not harmed during the dismantling of the building and could be re-used in another construction project. He stated that the rusted ends of the red irons would need to be removed, but the red irons could be refurbished and used in another project. He also acknowledged that, if he had been dismantling the building, he would not have allowed the purlins to fall to the ground, although he agreed with Memon that any damaged purlins could be replaced with minimal expense. He also acknowledged that if the workers used an oxygen acetylene torch to blow the bolts back through the holes in the metal, this was improper and the holes for the bolts could not be re-used. He stated that a new plate with new bolt holes would need to be welded to the metal before those pieces could be used again. On cross-examination, Howard stated that he had not seen any pictures of what the main steel frame looked like after the tear down, nor had he seen pictures of the ends of the red irons or the holes where the bolts had been blown out.
Shipwash presented evidence that, after being dismantled, the metal components of the building were damaged and unusable to reassemble the building, as required by the contract. AKIB, in contrast, presented evidence that the main frame steel structure of the building was not harmed and could be used in another construction project and that any damage that had occurred to the metal components during the dismantling was minor and could easily be repaired, as the contract had contemplated. The trial court, as the fact finder in this case, was the sole judge of the credibility and weight of the evidence and could resolve any conflicts and inconsistencies in the evidence. See Dupree , 472 S.W.3d at 364 ; Puntarelli , 405 S.W.3d at 135. The trial court found that AKIB "failed to properly supervise the job," that the "crew failed to properly disassemble the building," and that "the material from the building was damaged and unusable." We conclude that the evidence in the record supporting these fact findings is not so weak or contrary to the overwhelming weight of the evidence as to make the findings, and the trial court's judgment based on these findings, clearly wrong and manifestly unjust. See Crosstex N. Tex. Pipeline , 505 S.W.3d at 615 ; Choice! Power , 501 S.W.3d at 209. We therefore hold that Shipwash presented factually sufficient evidence that AKIB breached the contract by failing to properly supervise the dismantling, leading to the damage of the metal components of the building.
We overrule AKIB's second issue.
Because we conclude that Shipwash presented factually sufficient evidence that AKIB breached the contract, we do not address AKIB's argument on appeal that Shipwash repudiated the contract by failing to pay AKIB the amounts due to it under the contract, excusing AKIB's failure to perform under the contract. See El Paso Prod. Co. v. Valence Operating Co. , 112 S.W.3d 616, 621 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) ("To constitute a repudiation, a party to a contract must have absolutely and unconditionally refused to perform the contract without just excuse. ") (emphasis added); see also Mustang Pipeline Co. v. Driver Pipeline Co. , 134 S.W.3d 195, 198 (Tex. 2004) (per curiam) ("[A] party is released from further obligation under the contract only if the other party materially breached."). Here, Shipwash presented sufficient evidence that AKIB materially breached the contract when the metal components to the building became damaged in the dismantling process.
Pleading of Reliance Damages
In its third issue, AKIB argues that the trial court's damages award is erroneous because Shipwash only pleaded for general out-of-pocket damages and did not specifically plead for $13,924.50 in reliance damages.
"The goal in measuring damages for a breach-of-contract claim is to provide just compensation for any loss or damage actually sustained as a result of the breach." Parkway Dental Assocs., P.A. v. Ho & Huang Props., L.P. , 391 S.W.3d 596, 607 (Tex. App.—Houston [14th Dist.] 2012, no pet.). "The facts of the case determine the proper measure of damages as well as any allowance offsets." Sharifi v. Steen Auto., LLC , 370 S.W.3d 126, 148 (Tex. App.—Dallas 2012, no pet.).
Damages for a breach of contract claim protect three interests: a restitution interest, a reliance interest, and an expectation interest. Id. ; Chung v. Lee , 193 S.W.3d 729, 733 (Tex. App.—Dallas 2006, pet. denied). The normal measure of damages for breach of contract is the expectancy, or benefit of the bargain, measure, which seeks to restore the injured party to the economic position it would have occupied had the contract been fully performed. Parkway Dental Assocs. , 391 S.W.3d at 607 ; see Sharifi , 370 S.W.3d at 148 ("Expectancy damages, similar to benefit-of-the-bargain recoveries, award damages for the reasonably expected value of the contract.").
Another measure of damages for breach of contract is the reliance measure, which seeks to put the injured party in as good an economic position as it would have occupied had the contract not been made. Parkway Dental Assocs. , 391 S.W.3d at 607–08 ; see Siam v. Mountain Vista Builders , 544 S.W.3d 504, 515 (Tex. App.—El Paso 2018, no pet.) ("Reliance damages entitle a plaintiff to be reimbursed for the out-of-pocket expenditures that were caused by his reliance on the contract...."). "Reliance damages, similar to out-of-pocket recovery, reimburse one for expenditures made towards the execution of the contract in order to restore the status quo before the contract." Sharifi , 370 S.W.3d at 149 ; see Jerry L. Starkey, TBDL, L.P. v. Graves , 448 S.W.3d 88, 109 n.28 (Tex. App.—Houston [14th Dist.] 2014, no pet.) ("In a contract claim, out-of-pocket damages protect a reliance interest by restoring to the non-breaching party the expenditures made in reliance on the contract."); Sterling Chems., Inc. v. Texaco Inc. , 259 S.W.3d 793, 798 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) ("Reliance damages are measured as the out-of-pocket expenditures made by one party in reliance on the actions of another party...."); see also Foley v. Parlier , 68 S.W.3d 870, 884–85 (Tex. App.—Fort Worth 2002, no pet.) (noting, in case involving election of remedies between damages awarded for breach of contract and damages awarded for fraudulent inducement, that fraud damages consisted of out-of-pocket damages, which "constitute ‘reliance’ damages").
Under the common law, "actual damages" encompasses both "direct" and "consequential" damages. DaimlerChrysler Motors Co. v. Manuel , 362 S.W.3d 160, 179 (Tex. App.—Fort Worth 2012, no pet.) (citing Arthur Andersen & Co. v. Perry Equip. Corp. , 945 S.W.2d 812, 816 (Tex. 1997) ). Direct damages, or "general" damages, "are those inherent in the nature of the breach of the obligation between the parties, and they compensate a plaintiff for a loss that is conclusively presumed to have been foreseen by the defendant as a usual and necessary consequence of the defendant's act." Id. Direct or general damages include out of pocket damages. Zorrilla v. Aypco Constr. II, LLC , 469 S.W.3d 143, 153 (Tex. 2015) (stating such in context of fraud claim). Consequential damages, or "special" damages, "are those said to result naturally but not necessarily from the wrongful act because they require the existence of some other fact beyond the relationship of the parties." DaimlerChrysler Motors , 362 S.W.3d at 180.
General or direct damages need not be specifically pleaded because they " ‘are so usual an accompaniment of the kind of breach alleged that the mere allegation of the breach gives sufficient notice’ that such damages were sustained." Archer v. DDK Holdings, LLC , 463 S.W.3d 597, 609 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (quoting Hess Die Mold, Inc. v. Am. Plasti-Plate Corp. , 653 S.W.2d 927, 929 (Tex. App.—Tyler 1983, no writ) ); Airborne Freight Corp. v. C.R. Lee Enters., Inc. , 847 S.W.2d 289, 296 (Tex. App.—El Paso 1992, writ denied) ("The law does not require specific pleading of general damages, so the ‘benefit of bargain’ and ‘out-of-pocket’ measures were available to [the plaintiff]."). Special or consequential damages, however, "are so unusual as to normally vary with the circumstances of each individual case, and must be shown to have been contemplated or foreseen by the parties." Archer , 463 S.W.3d at 609. When a plaintiff claims items of special damages, those items of damages "shall be specifically stated" in the pleadings. TEX. R. CIV. P. 56 ; Am. Title Co. of Houston v. Bomac Mortg. Holdings, L.P. , 196 S.W.3d 903, 911 (Tex. App.—Dallas 2006, pet. granted, judgm't vacated w.r.m.) (holding that unpaid amount of loan constituted direct damages, not consequential damages, in claim for DTPA violations and, thus, plaintiff was not required to specifically plead these damages under Rule 56 ).
Here, in his original petition, Shipwash sought the recovery of "[a]ctual or economic damages for out of pocket damages." At trial, Shipwash presented, without objection, evidence of the following expenditures that he had made during the course of the project: the $14,000 initial payment to AKIB; $2,500 to a third party to complete the blueprints of the building that AKIB did not complete; $500 for material to prepare the building site; $3,274.50 for a sand and rock mixture to put at the site; $2,650 for leveling of this material; and $7,500 to place crushed asphalt on the site. The trial court awarded all of these amounts to Shipwash, for a total damage award of $30,424.50. On appeal, AKIB argues that $13,924.50 of the damages award—or everything but the $14,000 initial payment and the $2,500 payment for the blueprints—constitutes "reliance damages" that were required to be specially pleaded, and because Shipwash only pleaded for "out of pocket damages," he cannot recover these amounts. What AKIB overlooks, however, is that reliance damages for breach of contract are out-of-pocket damages. See, e.g. , Siam , 544 S.W.3d at 515 ("Reliance damages entitle a plaintiff to be reimbursed for the out-of-pocket expenditures that were caused by his reliance on the contract...."). Reliance damages "reimburse one for expenditures made towards the execution of the contract in order to restore the status quo before the contract." Sharifi , 370 S.W.3d at 149. All of the damages that Shipwash sought at trial, and was awarded by the trial court in its final judgment, are out-of-pocket expenditures that he made in reliance on the contract that he signed with AKIB. Out-of-pocket damages are general or direct damages that are not required to be specially pleaded. See Archer , 463 S.W.3d at 609 ; Airborne Freight Corp. , 847 S.W.2d at 296. Nevertheless, Shipwash pleaded for "[a]ctual or economic damages for out of pocket damages." We hold that the trial court did not err by awarding Shipwash these damages.
We overrule AKIB's third issue.
Conclusion
We affirm the judgment of the trial court.