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noting that, "[a]s an appellate court, it is not our duty to perform an independent review" of the record for evidence supporting an appellant's position
Summary of this case from Werner Enters. v. BlakeOpinion
NO. 14-18-01020-CV
11-24-2020
Curtis TURNER and Deborah Turner, Appellants v. Robert EWING and Elizabeth Ewing, dba Ewing Builders, Appellees
Gus E. Pappas, Nicole Marie Hilburn, Houston, for Appellants. Joshua Scott Clover, Brenham, for Appellees.
Gus E. Pappas, Nicole Marie Hilburn, Houston, for Appellants.
Joshua Scott Clover, Brenham, for Appellees.
Panel consists of Justices Wise, Jewell, and Poissant.
Margaret "Meg" Poissant, Justice
This is an appeal by homeowners Curtis Turner and Deborah Turner (collectively "the Turners") from a final judgment awarding damages and attorney's fees to Robert Ewing and Elizabeth Ewing, d/b/a Ewing Builders (collectively "Ewing Builders") in Ewing Builders' suit to recover on a construction contract. The Turners raise four issues on appeal and ask that the trial court's final judgment be reformed and rendered or, in the alternative, reversed and remanded. We affirm.
I. BACKGROUND
In November of 2015, the Turners entered into a construction contract (hereinafter the "Contract") with Ewing Builders to build the "shell" of their house located in Hempstead, Waller County, Texas. The parties agreed that Ewing Builders would complete "framing to dry-in" for the Turners for a projected cost of $139,457.04. The Turners had purchased plans and intended to act largely as their own contractor.
Prior to entering the contract, the Turners hired Ewing Builders to oversee the construction of the foundation for the house. Ewing Builders completed this work, and the Turners paid for the work.
Ewing Builders began framing the house soon after entering into the contract. Ewing Builders acted as a general contractor in that it was subcontracting most of the labor necessary for the construction. Ewing Builders sent periodic invoices for draws to the Turners requesting payment for the labor and materials provided to date. Each of Ewing Builders' draw requests begins with a summary page tabulating the costs of materials and labor actually incurred up to the date of the invoice. Attached to the summary page are various invoices, receipts, and other documentation that substantiate the costs for which Ewing Builders sought to be paid.
Ewing Builders maintains the framing proceeded as expected until a subcontracted crew appeared on Thanksgiving Day and engaged in conduct "best described as horseplay." Ewing Builders contends it addressed the problem with the subcontractor. However, from that point forward, the relationship between Ewing Builders and the Turners deteriorated. The parties sent a series of emails to each other over the next several weeks which primarily revolved around payment issues. However, the Turners had paid the first two draws as requested by Ewing Builders.
On December 6, 2015, the Turners sent Ewing Builders a list of items "not completed and/or which need[ed] to be corrected" before the Contract "can be completed and funded." Additional correspondence was exchanged between the parties over various issues within the project, as well as payment for completed work. The Turners refused to pay the remaining three draw requests. On December 14, 2015, the Turners offered Ewing Builders $8,405.85, which the Turners assert covered the work completed by Ewing Builders in accordance with the Contract. Ewing Builders did not accept the payment. Ewing Builders then received a letter from the Turners' counsel dated December 23, 2015, forbidding Ewing Builders from completing the project.
On December 9, 2016, Ewing Builders filed suit against the Turners to recover the amounts still due under the Contract. In its First Amended Petition, Ewing Builders brought causes of action for breach of contract, quantum meruit, and promissory estoppel and also sought recovery of attorney's fees. The Turners filed an answer with a verified denial, which included affirmative defenses and counterclaims, seeking to recover the cost they allegedly would incur to compete the job left unfinished by Ewing Builders. The Turners' counterclaims included causes of action for breach of contract, quantum meruit or unjust enrichment, promissory estoppel, breach of fiduciary duty, violations of the Deceptive Trade Practices Act, fraud, fraud in the inducement, conversion. The Turners also sought recovery of their attorney's fees.
The case proceeded to a jury trial from July 23, 2018, through July 27, 2018. Before the trial court tendered the charge to the jury, Ewing Builders moved for a directed verdict on the Turners' counterclaims for quantum meruit, promissory estoppel, breach of fiduciary duty, violation of the DTPA, fraud, fraud in the inducement, and conversion. The Turners moved for directed verdict on Ewing Builders' claims for quantum meruit and promissory estoppel. The trial court did not grant either parties' motion for directed verdict. The trial court advised the parties that neither the Turners' counterclaims for quantum meruit, promissory estoppel, breach of fiduciary duty, violation of the DTPA, fraud, fraud in the inducement, and conversion nor Ewing Builders' claims for quantum meruit and promissory estoppel would be presented to the jury, which the trial court stated has "the legal effect of a verdict on those issues." The trial court charged the jury, and the jury reached a verdict. The jury found that Ewing Builders breached the Contract; however, it also found that Ewing Builders substantially completed the Contract. The jury awarded Ewing Builders $35,242.99 in damages, less $5,963.00 for the costs of completion and the remedying of defects, if any. They jury awarded each party $30,000.00 in attorney's fees.
Ewing Builders filed a motion to enter judgment, asserting the jury rendered a verdict in its favor. The Turners filed a motion for judgment notwithstanding the verdict, arguing that there was no evidence to support the jury findings and requesting that the trial court disregard the findings and enter a judgment in favor of the Turners because they were the prevailing party on their breach of contract claim. In response, Ewing Builders reasserted the jury rendered a verdict in its favor.
On August 27, 2018, the trial court signed a final judgment. Based on the jury's verdict, the trial court ordered "[o]n the claim for breach of contract, the jury finds in favor of [Ewing Builders]" in the amount of $29,279.99. The trial court awarded Ewing Builders pre- and post-judgment interest as well as $30,000.00 in attorney's fees. The Turners filed a motion for new trial, rearguing their previously asserted contentions. This appeal followed. II. ANALYSIS
The Turners present the following issues on appeal:
The Turners' appellate brief identifies three "Issues Presented"; however, under "Argument," the Turners have set forth four issues.
1) Did the trial court err in failing to offset the damage amounts awarded to Ewing Builders by the collective total of the actual damages and attorney's fees awarded to the Turners?
2) Did the trial court err in awarding Ewing Builders its attorney's fees?
3) Did the trial court err in entering a judgment in favor of Ewing Builders?
4) Was there sufficient evidence to support the jury's finding as to the Turners' completion and repair costs?
A. SUFFICIENCY OF THE EVIDENCE
In their third and fourth issues, the Turners challenge the sufficiency of the evidence as to the damages awarded to Ewing Builders as well as the jury's finding as to their cost to repair or complete.
1. STANDARD OF REVIEW
When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would supports it. City of Keller v. Wilson , 168 S.W.3d 802, 821–22, 827 (Tex. 2005) ; see also Graham Cent. Station, Inc. v. Pena , 442 S.W.3d 261, 263 (Tex. 2014) (per curiam). The evidence is legally sufficient if it would enable a reasonable and fair-minded person to reach the verdict under review. City of Keller , 168 S.W.3d at 827. "If the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then jurors must be allowed to do so." Id. at 822. "A reviewing court cannot substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone of reasonable disagreement." Id. There is "no evidence" or legally insufficient evidence when (a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. See id. at 810.
When reviewing a challenge to the factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding. Maritime Overseas Corp. v. Ellis , 971 S.W.2d 402, 406–07 (Tex. 1998). After considering and weighing all the evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See id. at 407 ; see also Bennett v. Comm'n for Lawyer Discipline , 489 S.W.3d 58, 66 (Tex. App.—Houston [14th Dist.] 2016, no pet.). The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. GTE Mobilnet of S. Tex. Ltd. P'ship v. Pascouet , 61 S.W.3d 599, 616 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). "If we determine that the evidence is factually insufficient, we must detail the evidence relevant to the issue and state in what regard the contrary evidence greatly outweighs the evidence in support of the challenged finding; we need not do so when we affirm." Bennett , 489 S.W.3d at 66. We apply these standards mindful that this court is not a fact finder. Ellis , 971 S.W.2d at 407. The trier of fact is the sole judge of witnesses credibility and the weight afforded their testimony. See City of Keller , 168 S.W.3d at 819 ; Pascouet , 61 S.W.3d at 615–16.
2. APPLICABLE LAW
A breach of contract claim requires four elements be proven: (1) a valid contract existed between the plaintiffs and the defendants; (2) the plaintiffs tendered performance or were excused from doing so; (3) the defendants breached the terms of the contract; and (4) the plaintiffs sustained damages as a result of the defendants' breach. See Mays v. Pierce , 203 S.W.3d 564, 575 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).
While the common law did at one time require strict compliance with the terms of a contract, this rule has been modified for building or construction contracts by the doctrine of substantial performance. Dobbins v. Redden , 785 S.W.2d 377, 378 (Tex. 1990) ; Vance v. My Apartment Steak House of San Antonio, Inc. , 677 S.W.2d 480, 481 (Tex. 1984) ; Atkinson v. Jackson Bros. , 270 S.W. 848, 850 (Tex. Comm'n App. 1925, holding approved). "Substantial performance" is defined by the Texas Commission of Appeals in Atkinson :
To constitute substantial compliance the contractor must have in good faith intended to comply with the contract, and shall have substantially done so in the sense that the defects are not pervasive, do not constitute a deviation from the general plan contemplated for the work, and are not so essential that the object of the parties in making the contract and its purpose cannot without difficulty, be accomplished by remedying them. Such performance permits only such omissions or deviation from the contract as are inadvertent and unintentional, are not due to bad faith, do not impair the structure as a whole, and are remediable without doing material damage to other parts of the building in tearing down and reconstructing.
Atkinson , 270 S.W. at 851. The rule of substantial performance is an equitable doctrine adopted to allow a contractor who has substantially completed a construction contract to sue on the contract rather than being relegated to a cause of action for quantum meruit. Vance , 677 S.W.2d at 482. The doctrine of substantial performance recognizes that the contractor has not completed construction, and therefore is in breach of the contract. Id. Under the doctrine, however, the owner cannot use the contractor's failure to complete the work as an excuse for non-payment. Atkinson , 270 S.W. at 850.
"By reason of this rule a contractor who has in good faith substantially performed a building contract is permitted to sue under the contract, substantial performance being regarded as full performance, so far as a condition precedent to a right to recover thereunder is concerned." Id. (citing Linch v. Paris Lumber & Grain Elevator Co. , 80 Tex. 23, 15 S.W. 208 (Tex. 1891) (holding that contractor who had substantially complied with building specifications substantially performed)).
In a substantial performance claim, the contractor must prove three elements to prevail: its substantial performance, the amount unpaid under the contract, and "the cost of remedying the defects due to his errors or omissions." Vance , 677 S.W.2d at 483.
3. THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE SUBSTANTIAL COMPLETION AWARD OF $35,242.99 TO EWING BUILDERS In their third issue, the Turners challenge the sufficiency of the evidence supporting the $35,242.99 damages award to Ewing Builders on multiple fronts.
a. EWING BUILDERS PREVAILED ON ITS SUBSTANTIAL PERFORMANCE CLAIM AND WERE AWARDED DAMAGES
The Turners argue that "while there is a jury finding that [Ewing Builders] breached the Contract, there is no jury finding that the [Turners] breached the same, making the [Turners] the only prevailing party." The Turners assert "that in addition to not being a prevailing party, rather than pouring a contractor out for its own breach, the law has effectively created what is tantamount to an offset defense for the contractor for his substantial performance." The Turners opine that "a contractor only receives an offset from the damages, it should not and does not benefit by its breach."
The Turners mischaracterize the law of substantial performance. Substantial performance is not limited to a defensive issue. Substantial performance may be raised by a party seeking to recover on a contract. As set forth by the Supreme Court, to prevail in a substantial performance claim, the contractor must prove substantial performance, the amount unpaid under the contract, and the cost of remedying the defects due to his errors or omissions. Vance , 677 S.W.2d at 483. Moreover, the Turners fail to recognize that the doctrine of substantial performance is the legal equivalent of full compliance, less any offsets for remediable defects. Uhlir v. Golden Triangle Dev. Corp. , 763 S.W.2d 512, 515 (Tex. App.—Fort Worth 1988, writ denied). The doctrine "assumes, if there is substantial performance, the breach is immaterial." Gentry v. Squires Constr., Inc. , 188 S.W.3d 396, 403 n.3 (Tex. App.—Dallas 2006, no pet.) ; see also Bayer Corp. v. DX Terminals, Ltd. , 214 S.W.3d 586, 599 n.11 (Tex. App.—Houston [14th Dist.] 2006, no pet.) ("[S]ubstantial performance generally permits a party to a contract that breaches nonmaterial terms (but has otherwise substantially performed) to sue the other party to the contract for breach.").
Here, Ewing Builders presented evidence proving its substantial completion of the Contract. Ewing Builders also demonstrated the amount unpaid by the Turners under the Contract. Additionally, Ewing Builders proved the cost of completion or remedying any defects. See Vance , 677 S.W.2d at 483. On these elements, the jury found substantial completion in favor of Ewing Builders. As such, Ewing Builders was the prevailing party. The cost of completion or remedying defects was an element Ewing Builders had to prove under its substantial performance claim; it was not a recovery of damages by the Turners on their counterclaim for breach of contract. See Uhlir , 763 S.W.2d at 517 (citing Vance , 677 S.W.2d at 482–83 ) (offset under substantial performance theory is not considered a successful counterclaim for the counter-plaintiff)). Although the Turners assert that Ewing Builders did not submit a question that the Turners failed to comply with the Contract, their contention fails because the question submitted to the jury shows the amounts the Turners had not paid, which establishes breach by the Turners. As such, Ewing Builders did not need a separate finding that the Turners failed to comply.
b. SATISFACTION CLAUSE IN THE CONTRACT DID NOT ALLOW THE TURNERS THE RIGHT TO REFUSE WORK REASONABLY PERFORMED AND DELIVERED BY EWING BUILDERS
In addition to disputing the issue of the prevailing party, the Turners contest the amount of the "offset," claiming there was insufficient evidence to support the jury's $35,242.99 award. The Turners assert that Ewing Builders was not entitled to recover anything (1) for which the Turners were not satisfied, (2) above the quoted price for labor in the Contract unless the Turners were notified and agreed to the same, and (3) above the quoted price for materials without notice and approval. The Turners further claim that, if the contract were terminated, Ewing Builders was entitled only to payment for the work it completed to the Turners' satisfaction, which the Turners contend to be $8,405.85. In the alternative, the Turners argue that Ewing Builders' damages should be reduced by $6,032.07, which constitute unagreed upon overages for labor and materials and $2,585.00 for items the Turners did not receive. In response, Ewing Builders maintains that the "satisfaction clause" contained in the Contract did not give the Turners a carte blanche right to refuse work and materials reasonably performed and delivered.
Generally, a construction contract that allows an owner to pass upon the adequacy of the builder's performance requires the owner to make his judgment in good faith. BDB Interests, L.C. v. Arcadia Fin. Ltd. , No. 14-06-00055-CV, 2007 WL 949645, at *3 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (mem. op. on reh'g) (citing Tex. Dep't of Transp. v. Jones Bros. Dirt & Paving Contractors, Inc. , 92 S.W.3d 477, 481 (Tex. 2002) ). The owner's discretion under a satisfaction clause is to be made in good faith under an objective, reasonableness standard. Id. "This standard does not seek to determine the actual mental satisfaction of the party making the determination; rather it examines whether the performance would satisfy a reasonable person." Id.
Here, there was sufficient evidence before the jury from which it could have concluded that the Turners were not acting in good faith in claiming to be unsatisfied with Ewing Builders' work. For example, Robert Ewing testified that the Turners initially appeared satisfied with the appearance of the front entrance; however, later it became a point of dissatisfaction when Ewing Builders asked to be paid.
Q. Okay. Let me ask you about the esthetic [sic] look of what the front entrance looked like. How involved were you with meeting with either Mark Kos or Deborah Turner to discuss what the front entrance would look like?
A. We were e-mailed a picture for an alternate front -- different from the original drawing. So we were e-mailed a picture. That material was ordered, delivered to the project. You know, it only takes Mark [Kos] a day, not even a day, to do something like that. And it probably would have been a morning that I wasn't out there first thing in the morning. They were already being framed up and installed and Mark [Kos] had a conversation with Deborah [Turner] and I believed everything was worked out at that point. He finished it and everybody seemed happy with the way it was, the result of it.
However, Robert Ewing testified that later on in the project it came to his attention that the Turners had problems with the appearance of the front entrance. From this testimony, the jury could have questioned whether the Turners were acting reasonably in regard to the satisfaction clause of the Contract. Moreover, the jury could have found the evidence demonstrates that the Turners were satisfied until they were asked to pay for the work and materials provided by Ewing Builders.
c. EWING BUILDERS PRESENTED LEGALLY AND FACTUALLY SUFFICIENT EVIDENCE TO SUPPORT DAMAGES OF $35,24.99 IN FAVOR OF EWING BUILDERS
The evidence in the record is sufficient to support damages of $35,242.99 in favor of Ewing Builders. In her testimony, Beth Ewing explained to the jury how each of the draws submitted to the Turners were calculated and how the amounts those calculations were based on could be traced back to the source documents.
Q. Look at the first one here. This is Draw 1, correct?
A. Yes, sir.
Q. And this is -- for the record this is Plaintiff's Exhibit 5.
A. Okay. I can read that now.
Q. I'm sorry. This draw, the front page, who prepares this front page?
A. I do.
Q. Okay. And what's attached to the draw?
A. Attached is the documentation that shows what those charges are for, so the bills from Scholl Forest that add up to that $24,000, the bill from Kos Construction that shows he charged $9,000, and then the 12 1/2 percent profit fee that we put on to those.
Q. Okay. And that's what adds up the labor -- the math there, but that's what adds up to the final cost on this first draw of $37,900.78?
A. Yes, sir.
Q. Now, we won't do this with every draw but to give the jury an idea, attached to this draw there is an invoice from Scholl Forest -- I'm sorry, Scholl Lumber -- and it's an invoice dated November 2nd, up here at the top. And even though some attorney, named me, put an exhibit over that, that reflects a certain amount at the bottom of that, correct?
A. Yes, sir.
Q. There is another invoice from Scholl Lumber that, again, here at the bottom reflects an amount of $1906.01, correct?
A. I can't see the number, but I assume so.
Q. Fair enough. Gets better. There is another invoice from Scholl Lumber for $5,906.92, I believe.
A. Yes, sir.
Q. Correct? And here in this case there's even a fourth invoice for 8-by-8 rough cedar for $1142.08, correct?
A. Yes.
Q. And so, if the -- I forgot on this one, there's one more invoice attached from Scholl Lumber as well, correct?
A. Yes.
Q. So if the jury wanted to do the math for themselves, they could take those -- those five invoices in this case and add those numbers together and they should arrive at this number that you have listed here for Scholl Forest material?
A. Yes, sir.
Q. Okay. And in this case just what was that number?
A. The Scholl Forest number?
Q. Yes.
A. $24,689.58.
Q. Okay. And then also attached to this draw, the very last item, this is an invoice. Who is this invoice from?
A. That was from Mark Kos, Kos Construction, and that was his first draw for framing for $9,000.
Additionally, through her testimony, Beth Ewing walked the jury line-by-line through her accounting in order to show the jury exactly how Ewing Builders arrived at its claim for damages arising from its substantial completion of the Contract. Beth Ewing "showed her work" on a document entitled "Turner Cost Sheet" which she had prepared on December 11, 2015, just as the dispute over payment arose. In light of the evidence presented, we conclude the jury's finding of damages of $35,242.99 in favor of Ewing Builders is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Ellis , 971 S.W.2d at 407. We hold that the evidence is legally and factually sufficient to support the jury's findings.
The Turners' third issue is overruled.
4. COMPLETION AND REPAIR COSTS OF THE TURNERS
In their fourth issue, the Turners assert the trial court erred in limiting their completion and repair costs to $5,963.00. The Turners argue that the amount is "against the great weight and preponderance of the evidence, requiring the substitution of $68,250.00 in place of that jury finding."
An appellant's brief must contain a clear and concise argument for the contentions made, with appropriate citations to the record. See Tex. R. App. P. 38.1(i). Here, the Turners briefing on this issue fails to meet the standards set forth in the Texas Rules of Appellate Procedure as they only set forth conclusory allegations without any citations to the record or citations to legal authorities to support their contentions. See id. ; Priddy v. Rawson , 282 S.W.3d 588, 595 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (noting that "[a]s an appellate court, it is not our duty to perform an independent review" of the record for evidence supporting an appellant's position); Lundy v. Masson , 260 S.W.3d 482, 503 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (concluding that appellant failed to provide argument or cite authority for contention on appeal and appellate court was "not required to do the job of the advocate"). Even construing the Turners' appellate brief liberally, we cannot conclude that they have adequately briefed their fourth issue; thus, we find briefing waiver. See San Saba Energy, L.P. v. Crawford , 171 S.W.3d 323, 337 (Tex. App.—Houston [14th Dist.] 2005, no pet.) ; see also Marathon Petroleum Co. v. Cherry Moving Co. , 550 S.W.3d 791, 798 (Tex. App.—Houston [14th Dist.] 2018, no pet.).
Notwithstanding briefing waiver, there was sufficient evidence before the jury to support its finding of $5,963.00 as the amount it would cost to repair and complete the work. The Turners designated only a partial reporter's record. The appellant bears the burden to bring forward on appeal a sufficient record to show the error committed by the trial court Davis v. Angleton Indep. Sch. Dist. , 582 S.W.3d 474, 482–83 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) ; see also Christiansen v. Prezelski , 782 S.W.2d 842, 843 (Tex. 1990) (per curiam) ("The burden is on the appellant to see that a sufficient record is presented to show error requiring reversal."). In the absence of a record containing the relevant evidence considered by the jury, we "must presume that the omitted portions of the record are relevant and would support the judgment." In the interest of J.A.T. , 502 S.W.3d 834, 836 (Tex. App.—Houston [14th Dist.] 2016, no pet.) ; see also Davis , 582 S.W.3d at 482–83 ("When an appellant challenges the sufficiency of the evidence supporting the trial court's judgment against him, he cannot prevail without first meeting his burden of presenting a sufficient record on appeal because it is presumed that the omitted portions of the record support the trial court's judgment."). Here, the jury could have found credible the testimony of Robert Ewing as well as the testimony of Mark Kos, the carpenter who, with his crew, performed the bulk of the work on the project, that the cost to repair and complete the work was $5,963.00. We presume the testimony not presented in the partial record designated by the Turners would support the jury's determinations. The jury also could have discredited the testimony of the Turners' expert, Edwin Neumann. We will not substitute our judgment for the trier of fact as it is the sole judge of witnesses credibility and the weight afforded their testimony. Pascouet , 61 S.W.3d at 615–16.
Finding briefing waiver, the Turners' fourth issue is overruled.
B. AWARD OF ATTORNEY'S FEES
The Turners' first and second issues dispute the trial court's judgment awarding attorney's fees. 1. STANDARD OF REVIEW
We review a trial court's award of attorney's fees for an abuse of discretion. El Apple I, Ltd. v. Olivas , 370 S.W.3d 757, 761 (Tex. 2012). A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without regard to guiding legal principles. Ford Motor Co. v. Garcia , 363 S.W.3d 573, 578 (Tex. 2012). We presume that the trial court acted within the bounds of its discretion unless the record shows the contrary. See Sanchez v. AmeriCredit Fin. Servs., Inc. , 308 S.W.3d 521, 526 (Tex. App.—Dallas 2010, no pet.).
2. APPLICABLE LAW
"As a general rule, litigants in Texas are responsible for their own attorney's fees and expenses in litigation." Ashford Partners, Ltd. v. ECO Res., Inc. , 401 S.W.3d 35, 41 (Tex. 2012). A court may award attorney's fees only when authorized by statute or by the parties' contract. MBM Fin. Corp. v. Woodlands Operating Co. , 292 S.W.3d 660, 669 (Tex. 2009). Whether a party is entitled to seek an award of attorney's fees is a question of law that we review de novo. Holland v. Wal–Mart Stores, Inc. , 1 S.W.3d 91, 94 (Tex. 1999).
A party can recover attorney's fees for breach of contract. Tex. Civ. Prac. & Rem. Code § 38.001(8). However, the party seeking attorney's fees must first prevail on its claim. See Ashford Partners, Ltd. , 401 S.W.3d at 40 (holding, in order to qualify for attorney's fees under section 38.001, "a litigant must prevail on a breach of contract claim and recover damages."). "[T]he party seeking a fee award must prove the reasonableness and necessity of the requested attorney's fees." Rohrmoos Venture v. UTSW DVA Healthcare, LLP , 578 S.W.3d 469, 484 (Tex. 2019). "Both elements are questions of fact to be determined by the fact[-] finder...." Id. at 489.
3. THE TURNERS' ATTORNEY'S FEES
In their first issue, the Turners contend the trial court erred by failing to account for the $30,000.00 in attorney's fees awarded by the jury to the Turners. The Turners maintain that the "amount assigned to the Appellees by the Jury should have been offset by the full amount of damages awarded to the Appellants to include not only the $5,963.00 in actual damages, but also the $30,000.00 in attorney's fees awarded Appellants by the Jury." The Turners argue that, independent of other relief requested, we should reverse the trial court's final judgment and render a new judgment in favor of Ewing Builders in the amount of $29,279.43.
The Turners' assertion that they are entitled to recover their attorney's fees is premised on their contention that they prevailed on their counterclaim for breach of contract based on the jury's answer to question number one—that Ewing Builders breached the Contract—and the jury's answer to question number four—the Turners' cost of completion and remedying defects, if any, is $5,963.00. The Turners assertion, however, ignores the jury's answer to question number two—there was substantial completion of the Contract by Ewing Builders—and the jury's answer to question number three—Ewing Builders' damages were $35,242.99, less the cost of completion and remedying defects in the amount of $5,963.00. Contrary to the Turners' contention, the Turners did not prevail on any of their counterclaims. See Green Int'l, Inc. v. Solis , 951 S.W.2d 384, 390 (Tex. 1997). The assignment of $5,963.00 as the cost of completion and remedying of defects was not an assignment of damages in response to the Turners' counterclaim. Rather, it was a reduction of the damages awarded to Ewing Builders for its breach of contract claim based on substantial performance. Because the Turners did not prevail on its breach of contract counterclaim and did not recover damages, the trial court did not abuse its discretion in refusing to award attorney's fees to the Turners. See Tex. Civ. Prac. & Rem. Code § 38.001(8) ; see also Ashford Partners, Ltd. , 401 S.W.3d at 41.
The Turners' first issue is overruled.
4. EWING BUILDERS' ATTORNEY'S FEES
In their second issue, the Turners maintain the trial court erred in awarding Ewing Builders attorney's fees, asserting Ewing Builders was not the prevailing parties and Ewing Builders was not entitled to recover their fees because it failed to segregate its attorney's fees.
Ewing Builders' attorney testified regarding his fees. On appeal, the Turners do not dispute the reasonableness of the rate charged per hour or the total number of hours billed. Rather, their dispute is limited to the failure to segregate the fees.
a. EWING BUILDERS PREVAILED
As set forth above, Ewing Builders prevailed on its breach of contract claim. Ewing Builders presented evidence of each element of its claim: the substantial completion by Ewing Builders of the Contract; the amount unpaid by the Turners under the Contract, and the cost of completion or remedying of any defects. See Vance , 677 S.W.2d at 483. As such, Ewing Builders was the prevailing party. As the prevailing party, Ewing Builders was entitled to recover its attorney's fees under Section 38.001(8). See Tex. Civ. Prac. & Rem. § 38.001(8). Accordingly, the trial court did not abuse its discretion in awarding attorney's fees to Ewing Builders. See Ashford Partners, Ltd. , 401 S.W.3d at 41.
Next, the Turners argue there was no evidence that they actually breached the Contract, asserting there were no payment terms in the Contract nor a draw schedule with which the Turners had to comply. The Turners further maintain that the clear language of the Contract specifies that they do not have to pay for any work not to their satisfaction. As set forth above, the Turners' contention fails because the question submitted to the jury shows the amounts the Turners had not paid, which establishes breach by the Turners. As such, Ewing Builders did not need a separate finding that the Turners failed to comply. See Vance , 677 S.W.2d at 483 (setting requirement for contractor to prevail on breach of contract claim based on substantial performance). The jury did not award the Turners any damages. The cost of completion or remedying defects was an element Ewing Builders had to prove under its substantial performance claim in order to prevail. See Uhlir , 763 S.W.2d at 517 (citing Vance , 677 S.W.2d at 482–83 ).
In sum, the trial court did not abuse its discretion in awarding attorney's fees to Ewing Builders as the prevailing party.
b. EWING BUILDERS' ATTORNEY'S FEES WERE INEXTRICABLY INTERTWINED
The Turners assert that because the trial court granted a directed verdict on Ewing Builders' quantum meruit and promissory estoppel claims, at best, Ewing Builders would only be entitled to recover its attorney's fees associated with its breach of contract claim. In response, Ewing Builders contends that its claims for breach of contract, quantum meruit, and promissory estoppel were inextricably intertwined; providing an exception to the duty to segregate attorney's fees between multiple claims and defenses.
Generally, when a party presents multiple claims, some of which support recovery of attorney's fees and some of which do not, the party must segregate the attorney's fees attributable to claims for which fees are recoverable. Tony Gullo Motors I, L.P. v. Chapa , 212 S.W.3d 299, 310–11 (Tex. 2006). The Supreme Court, however, has carved out an exception to the segregation requirement when claims are "inextricably intertwined."
"Whether a party seeking attorney's fees must segregate fees generated in connection with work relating to one claim or party from fees generated in connection with work relating to other claims or parties is a difficult issue that is frequently litigated." Air Routing Int'l Corp. (Canada) v. Britannia Airways, Ltd. , 150 S.W.3d 682, 687 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
A recognized exception to this duty to segregate arises when the attorney's fees rendered are in connection with claims arising out of the same transaction and are so interrelated that their "prosecution or defense entails proof or denial of essentially the same facts." Flint & Assoc. v. Intercontinental Pipe & Steel, Inc. , 739 S.W.2d 622, 624–25 (Tex. App.—Dallas 1987, writ denied). Therefore, when the causes of action involved in the suit are dependent upon the same set of facts or circumstances and thus are "intertwined to the point of being inseparable," the party suing for attorney's fees may recover the entire amount covering all claims. Gill Sav. Ass'n v. Chair King, Inc. , 783 S.W.2d 674, 680 (Tex. App.—Houston [14th Dist.]1989), modified , 797 S.W.2d 31 (Tex. 1990)....
Stewart Title Guar. Co. v. Sterling , 822 S.W.2d 1, 11–12 (Tex. 1991). We conduct a de novo review of the trial court's segregation determination. Air Routing Int'l Corp. (Canada) v. Britannia Airways, Ltd. , 150 S.W.3d 682, 688 (Tex. App.—Houston [14th Dist.] 2004, no pet).
For this exception to apply, Ewing Builders must show: (1) the attorney's fees incurred are in connection with claims arising out of the same transaction, and (2) the claims are so interrelated that their prosecution or defense entails proof or denial of essentially the same facts. See Air Routing Int'l Corp. (Canada) , 150 S.W.3d at 694 (citing Sterling , 822 S.W.2d at 11–12 (stating this standard, then restating this standard and indicating that, if this standard is satisfied, the fees are deemed to be "intertwined to the point of being inseparable," and the party seeking fees may recover the entire amount of fees covering all claims)).
Here, the gravamen of each of Ewing Builders' claims is that Ewing Builders built a house for the Turners for which the Turners refused to pay. The operative facts supporting each of Ewing Builders' claims are identical. Furthermore, the operative facts are the same operative facts necessary to defend against the Turners' counterclaims. The prosecution of Ewing Builders' claims entailed the proof of the same facts necessary to disprove the Turners' counterclaims. Thus, Ewing Builders' causes of action as well as the Turners' counterclaims are so inextricably intertwined as to fall within the exception and excuse Ewing Builders from the general duty to segregate its attorney's fees. See Sterling , 822 S.W.2d at 11–12 ; Air Routing Int'l Corp. (Canada) , 150 S.W.3d at 694. We conclude that the trial court did not abuse its discretion in awarding Ewing Builders, as the prevailing party, its full measure of attorney's fees
The Turners' second issue is overruled.
III. CONCLUSION
We affirm the trial court's judgment.