George Thomas Homes, Inc. v. Southwest Tension Systems, Inc.

• Decision Date: 12 October 1988
• Docket Number: No. 08-88-00087-CV,08-88-00087-CV
• Citation: 763 S.W.2d 797
• Parties: GEORGE THOMAS HOMES, INC., Appellant, v. SOUTHWEST TENSION SYSTEMS, INC., Stephen H. Scott, and Henry Ng, Appellees.
• Court: Texas Court of Appeals

Page 797

763 S.W.2d 797

GEORGE THOMAS HOMES, INC., Appellant, v. SOUTHWEST TENSION SYSTEMS, INC., Stephen H. Scott, and Henry Ng, Appellees.

No. 08-88-00087-CV.

Court of Appeals of Texas El Paso.

Oct. 12, 1988.

Larry Baskind, Brenda J. Norton, Diamond, Rash, Leslie & Smith, El Paso, for appellant.

Texas S. Ward, El Paso, for appellees.

Before OSBORN, C.J., and SCHULTE and WOODARD, JJ.

OPINION

WOODARD, Justice.

This is an appeal from a bench trial judgment awarding Plaintiff Southwest $8,590.54, plus interest and attorney's fees, Plaintiff Scott $8,800.00 actual damages, $7,500.00 exemplary damages, plus interest and attorney's fees, and Plaintiff Ng $3,400.00 actual damages, $7,500.00 exemplary damages, plus interest and attorney's fees. We affirm except as to the award of attorney's fees.

The Defendant contracted Plaintiff Southwest to design plans for post-tension cement foundations on houses to be built. Southwest was also to install the cables, inspect them and place stress on those cable tendons after the concrete was laid. In post-tensioning, the cables are leveled across the foundation site. The concrete is then poured and hardened around them. The concrete foundation is then compressed by the tightening device on the ends of each cable. The purpose is to provide tensile strength and resist any lengthwise stress caused by the building of the structure.

Before Defendant could construct a new home in El Paso, he had to obtain a city building permit. If the house was to be built on a post-tension foundation, the permit application had to contain the plans therefor bearing an engineer's seal. The Defendant was a volume builder of houses. The oral agreement was that Plaintiff Southwest would draw foundation plans for each particular model of house. The Defendant was to keep the plans in its office and would make copies of a particular plan if it was to use a post-tension foundation on that house model. If the Defendant used Southwest's plans, it was to use its services in the construction of the foundation. In 1983, it was discovered that the Defendant had used the plans to obtain building permits on approximately sixty houses and had not engaged Southwest's services in the construction. Southwest sued for breach of contract, conversion of their plans, and Plaintiffs Scott and Ng brought suit for conversion of their professional engineer's seals.

In that several of the points of error concern legal and factual insufficiency assertions, we set forth here the standards of review we apply to such points to avoid repetition under each of them. In considering a "no evidence" legal insufficiency point, we consider only the evidence which tends to support the court's findings and disregard all evidence and inferences to the contrary. A "no evidence" point must be sustained if there is complete absence of or no more than a scintilla of evidence which supports the court's findings. McKnight v. Hill & Hill Exterminators, Inc., 689 S.W.2d 206 (Tex.1985). A factual insufficiency point requires us to examine all of the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). The reviewing court cannot substitute its conclusions for those of the judge. If there is sufficient competent evidence of probative force to support the finding, it must be sustained. Carrasco v. Goatcher, 623 S.W.2d 769 (Tex.App.--El Paso 1981, no writ). It is not within the province of the court to interfere with the trial judge's resolution of conflicts in the evidence or to pass on the weight or credibility of the witness's testimony. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951). Where there is conflicting evidence, the trial judge's finding on such matters is generally regarded as conclusive. Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508 (1947).

Point of Error No. One claims there is insufficient or no evidence to support the award of damages to Plaintiffs Scott and Ng. The judgment recited that the court was of the opinion that the two Plaintiffs were entitled to $8,800.00 and $3,400.00, respectively, "as actual damages for the fraudulent and illegal use of the said Plaintiff's Professional Engineer's seal and for the prospect of his individual liability under the Texas Engineering Practice Act and Section 16.008 Civil Practice and Remedies Code". In subsequent paragraphs, the judgment states: "IT IS FURTHER ORDERED, ADJUDGED AND DECREED" that the respective Plaintiffs recover those sums "as actual damages for the fraudulent and illegal use of the said Plaintiff's Professional Engineer's seal". [Emphasis added]. The Defendant contends that the prospect of individual liability is too speculative. We need not reach that decision. The trial court's opinion is merely a preamble recital, and not controlling. Cox v. City & County of Dallas Levee Improvement, Dist., 258 S.W.2d 851 (Tex.Civ.App.--Dallas 1953, writ ref'd n.r.e.); 4 R. McDonald, sec. 17.09.3 at 84 (rev. 1984). The decretal portion of the judgment expressly adjudicated the sums "as actual damages", and it is that phrase that dominates. There was testimony that $200.00 was a reasonable charge for the drawing of a foundation plan by an engineer. According to record, forty-four plans bearing Scott's engineering seal, and seventeen bearing Ng's, were filed without their permission with the City of El Paso. 200 X 44 = 8,800, and 200 X 17 = 3,400, the exact dollar amounts of damages awarded. The trial court's finding of facts discloses a reiterate of this basis. There is no allowance for prospective damages expressed, although the court did recognize the possibility of future liability in an unrelated paragraph and finding. The trial court's finding of facts and conclusions of law should be construed together with the judgment and in support thereof. Gulf Liquid Fertilizer Co. v. Titus, 163 Tex. 260, 354 S.W.2d 378 (1962). Point of Error No. One is overruled.

Points of Error Nos. Two, Three, Four and Seven attack the trial court's finding of conversion and damages flowing...