Bavishi v. Sterling Air Conditioning, Inc.
| Decision Date | 11 August 2011 |
| Docket Number | NO. 01-10-00610-CV,01-10-00610-CV |
| Court | Texas Court of Appeals |
| Parties | NILESH BAVISHI AND DIPTI BAVISHI, Appellants v. STERLING AIR CONDITIONING, INC. D/B/A AIRTRON, INC., A/K/A AIRTRON HEATING & AIR CONDITIONING, Appellee |
Sterling Air Conditioning, Inc. d/b/a Airtron, Inc., a/k/a Airtron Heating & Air Conditioning ("Airtron") sued Nilesh and Dipti Bavishi ("Bavishi") on a swornaccount and asserted alternative claims for breach of contract and quantum meruit arising out of Bavishi's failure to pay Airtron for air conditioning work that Airtron had completed at Bavishi's new house. The trial court rendered summary judgment in favor of Airtron. In four issues, Bavishi contends that the trial court erroneously rendered summary judgment because (1) Airtron failed to allege that all lawful offsets had been applied to the account; (2) Airtron did not conclusively establish that it fully performed under the contract and that Bavishi breached the contract; (3) Airtron failed to prove that Bavishi accepted Airtron's services; and (4) Airtron's summary judgment affidavit contained conclusory statements.
We affirm.
Bavishi began construction on a new house in 2006. In June 2008, Transtar Builders, Inc. ("Transtar"), the general contractor on the project, terminated its relationship with G.K. Mechanical, Inc., the original air conditioning subcontractor. Transtar hired Airtron as air conditioning subcontractor to complete the project in place of G.K. Mechanical, and it executed a contract with Airtron for a "total turnkey price" of $42,954. Transtar's contract with Airtron listed nine distinct items under "Scope of Work Included," including: installing condensers, programmable thermostats, a zone control board, fresh-air intake controllers, and supply and return grills; connecting the vent hoods; adding supply drops to asecond floor bathroom; modifying "return air on the first floor plus additional return on [second] floor landing"; obtaining a permit from the City of Sugar Land; and supplying "miscellaneous material and labor." Under the "Notes" section, the contract provided that: The contract similarly stated that the "condition of zone dampers is unknown, replacement of existing equipment (if needed) is extra." This contract did not include a provision specifically obligating Airtron to correct any problems created by previous subcontractors.
In March 2009, Bavishi terminated his relationship with Transtar and himself assumed the role of general contractor. At the time Bavishi fired Transtar, Airtron had not yet completed its work for Transtar, although it had installed some materials at Bavishi's house, including grills, registers, and fan covers.
On May 12, 2009, Bavishi and Airtron executed a contract governing Airtron's remaining work on the project. This contract provided that Airtron would install thermostats and a total of seven condensers for a price of $32,215. The contract also included the following statement:
This Contract has been modified to show what remaining work is to be completed, as per the original agreement. Based upon previous conversations, the remaining [w]ork left is 1) Completing the trim, both outside and inside the house. 2) Setting the condensers on Builder supplied pad. 3) Starting up systems and installing all thermostats to appropriate locations.
As with Airtron's contract with Transtar, Airtron's contract with Bavishi did not include a provision requiring Airtron either to correct any problems with the air conditioning system created by previous subcontractors or to complete all necessary work to make the system operational.
On June 2, 2009, Airtron issued an invoice to Bavishi in the amount of $32,215.50 for "HVAC final—finish trim & set units." During the course of Airtron's work at Bavishi's property, Airtron employees discovered a problem in the copper line that fed coolant to the condensers. The copper line had been installed by another company, but, at Bavishi's request, Airtron repaired a leak in the line. Airtron invoiced Bavishi an additional $150 for parts and labor.
Beginning in June 2009, after Airtron had installed the contracted-for condensers and thermostats, Bavishi and Airtron disputed both the quality of Airtron's work and the scope of its responsibilities under the contract. Specifically, the parties disputed whether the contract obligated Airtron to correct all problems with the air conditioning system that were created by the subcontractors who had worked on the project prior to Airtron. After the parties were unable to achieve a resolution of this dispute, Airtron ceased working on the project on July 1, 2009.
Bavishi subsequently refused to pay Airtron in accordance with the two invoices Airtron had issued. Airtron then sued Bavishi on a sworn account andasserted claims for breach of contract and quantum meruit. Airtron attached the affidavit of William Nylan, Airtron's Operations Manager, to its original petition in support of the sworn account. Nylan averred that he had personal knowledge of the contents of the affidavit and control over the records of the account. He stated:
Airtron attached the contract and the two invoices to Bavishi to its original petition. Airtron also alleged that it had completed its obligations under the May 2009 contract and that Bavishi had breached the contract by failing to pay the invoiced amounts. In its quantum meruit claim, Airtron asserted that it was entitled to the reasonable value of materials and supplies that it had sold and delivered to Bavishi while Transtar was still the general contractor on the project and before Airtron entered into its own contract with Bavishi.
Bavishi answered by filing an unsworn general denial.
Airtron moved for summary judgment on each of its own claims. As summary judgment evidence, Airtron attached an affidavit by William Nylan; itscontract with Bavishi; the two unpaid invoices to Bavishi; an unpaid invoice for $2,972.80 to Transtar for work performed by Airtron for Transtar prior to Bavishi's assuming the role of general contractor; and Bavishi's interrogatory answers, in which Bavishi acknowledged the contract he had made with Airtron and admitted that he owed Airtron $21,742.
Nylan averred that at the time Bavishi fired Transtar as the general contractor Transtar owed Airtron $2,972.80 for materials, including "grills, registers, and fan covers," that Airtron had installed at Bavishi's property pursuant to its contract with Transtar. Airtron argued that it was entitled to recover those funds under quantum meruit. Nylan further averred that Airtron "sold, delivered, and installed for [Bavishi] certain labor, materials and supplies on account" and that Airtron "provided and/or installed said air conditioning labor, materials and supplies pursuant to the terms of [the May 2009 contract between Airtron and Bavishi]." According to Nylan, Airtron's records indicated that, "after allowing for all just and lawful offsets, payments, and credits," Bavishi owed it $32,365 on its suit on a sworn account or, alternatively, for breach of contract.
In his interrogatory answers, Bavishi claimed that he was entitled to $10,473 in offsets because, after Airtron left the project, he had to hire additional air conditioning subcontractors to "complete the work" and make the air conditioningsystem operational.1 Airtron argued that Bavishi was not entitled to any of the claimed offsets because the subsequent subcontractors corrected deficiencies in the work of subcontractors that Transtar had hired prior to contracting with Airtron. These subcontractors did not correct deficiencies in the work that Airtron had completed pursuant to its contract with Bavishi. Because Airtron was not contractually obligated under either its original contract with Transtar or its subsequent contract with Bavishi to correct the work of the prior subcontractors, it argued that Bavishi was not entitled to any offsets.
In response to Airtron's summary judgment motion, Bavishi argued that the summary judgment evidence reflected that "[Airtron] did not finish the job, that [Bavishi] had to expend considerable sums after [Airtron] left [the job] to correct and complete the work [Airtron] had contracted to do, and that [Bavishi was] entitled to significant offsets to the amount of [Airtron's] claim." Bavishi argued that Airtron's original contract with Transtar was for a "turnkey job," that Airtron's contract with Bavishi noted that "the work in the original contract was incomplete and that the new contract was a modification of the previous one," and that the "turnkey" contract between Airtron and Bavishi required Airtron "to recognize the previous problems with the [air conditioning] system and make it operational," andthis was not done. Bavishi argued that he was entitled to over $10,000 in offsets expended "to correct the inadequacies of Airtron's work."
As summary judgment evidence, Bavishi attached his own affidavit, Airtron's contract with Transtar, and a series...
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