Gibson v. Bostick Roofing and Sheet Metal

• Decision Date: 19 August 2004
• Docket Number: No. 08-02-00387-CV.,08-02-00387-CV.
• Citation: 148 S.W.3d 482
• Parties: Jimmy GIBSON, Appellant, v. BOSTICK ROOFING AND SHEET METAL COMPANY, Appellee.
• Court: Texas Court of Appeals

148 S.W.3d 482

Jimmy GIBSON, Appellant, v. BOSTICK ROOFING AND SHEET METAL COMPANY, Appellee.

No. 08-02-00387-CV.

Court of Appeals of Texas, El Paso.

August 19, 2004.

Richard D. Davis, Richard Davis Law Firm, Midland, for Appellant.

Michelle Greene, Odessa, for Appellee.

Before Panel No. 4, BARAJAS, C.J., LARSEN, and McCLURE, JJ.

OPINION

ANN CRAWFORD McCLURE, Justice.

Jimmy Gibson appeals the trial court's judgment in favor of Bostick Roofing and Sheet Metal Company (Bostick). Bostick sued Gibson on a sworn account and in the alterative on a theory of quantum meruit. It also requested foreclosure of its mechanic's and materialman's lien. Following a bench trial, the trial court entered judgment for $5,500, together with interest and attorneys' fees, and allowed foreclosure of the lien. We abated the case for entry of findings of fact and conclusions of law which are now filed of record. We reverse and render.

FACTUAL SUMMARY

On August 27, 1987, Gibson purchased an apartment complex located in Odessa, Texas from the Federal Home Loan Mortgage Corporation. The same day, he entered into a contract for deed to sell the complex to Jim and Mary Nell Brown and Gerald and Johnnie Jones. Mary Nell and Johnnie are Gibson's sisters.

In 1993, a hailstorm hit Odessa and the roof of the complex was damaged. Jim Brown (Brown) received an estimate for the repair from Eddie Conner, an estimator and salesman for Bostick. Brown presented himself to Conner as the owner and advised that insurance would cover the damage. Conner admittedly took no steps to verify that Brown was indeed the owner of the property, nor were such steps customary in his business. Conner never dealt with Gibson.

Conner first estimated the cost of replacing the roof at $6,450. Because Brown also wanted to have the roof on his own residence repaired, the price was negotiated down to $5,500 for each roof. The work on the apartment complex was completed near the end of July 1993. Bostick never received payment.

Bostick began sending invoices to Brown. These invoices were prepared by Bostick's president Andy Reed, who was responsible for the company's record keeping and billing. Reed testified that the invoices were prepared in the regular course of business and were sent on a regular basis. On February 8, 1994, Reed sent a letter to Brown notifying him that unless the bill was paid, interest, costs and attorneys' fees would be added to it. Reed also contacted an attorney to assist him in collecting the debt. After retaining counsel, Reed realized that Brown was not the only party with an interest in the property. He soon learned that Gibson was the legal owner while the Browns and the Joneses were the equitable owners. Reed filed an affidavit for a mechanic's and materialman's lien on March 4, 1994. Gibson was notified of the lien by letter, but Reed couldn't recall whether Gibson was notified before the lien was filed. Reed never dealt with Gibson and admitted that he had no contract whereby Gibson agreed to the repairs or the price. Nevertheless, Reed sued because Gibson "got value received."

Gibson, a resident of Dallas, testified that he didn't know about the hail storm or that the roof of the complex needed to be or was being replaced. He explained the transactions by which Brown owned the apartments and carried insurance on them while Gibson was listed as mortgagee holding a first lien on the property. Gibson admitted that Brown had a right to procure repairs. In fact, under the contract for deed, Brown had no obligation to report any property repairs and Gibson had no duty to inspect the property. He emphasized that Brown did not work for him nor did he have the authority to negotiate on his behalf.

After receiving demand letters, Gibson contacted Brown to inquire about the work. Brown admitted that he had a new roof put on the apartment complex, that it was covered by insurance, and that he would take care of everything. Gibson never followed up with the insurance company or his sisters. He later discovered a problem with the insurance checks that were issued to pay for the repairs. The checks were sent to the complex, Brown forged Gibson's name, and cashed the checks. Gibson filed a complaint with the district attorney's office and asked the insurance company to reissue the checks. The district attorney refused to file charges; the insurance company investigated and reported that the statute of limitations had expired.

On August 23, 1994, the Joneses transferred their interest in the complex to the Browns. In December 1995, Gibson repossessed the property and the Browns signed a quitclaim deed transferring their interest. The deed was never recorded. Gibson ultimately sold the property to the Thompsons on a contract for deed. Bostick filed suit on January 17, 1995.

THE TRIAL COURT'S FINDINGS

Succinctly put, the trial court's findings of fact were as follows:

• Gibson executed a contract for deed providing for the transfer of the apartment complex to the Browns and the Joneses.

• Gibson admitted that he considered Brown to be an owner of the property who had authority to contract with Bostick.

• On or about May 18, 1993, Brown represented himself to Bostick as the owner and entered into an agreement whereby Bostick would install a new roof for a price of $5,500.00.

• On or about July 23, 1993, Bostick installed a new roof in accordance with his agreement.

• The reasonable fair market value of the roofing job at the time of installation was $5,500.00, which remains unpaid.

• Gibson was notified in writing that the roofing work had been performed and Bostick claimed $5,500.00 was due.

• On or about December 1995, the complex was deeded back to Gibson.

• The reasonable value of the necessary services provided by Bostick's attorney was $1,000.00.

The trial court's conclusions of law were as follows:

• Gibson was unjustly enriched in the amount of $5,500.00.

• Gibson is indebted to Bostick in the amount of $5,500.00 plus attorney's fees of $1,000.00.

• The judgment bears interest at the rate of 10% per annum from September 1, 1993, until paid.

LIABILITY ISSUES

In his first supplemental point of error, Gibson challenges the legal and factual sufficiency of the evidence to support the trial court's finding that Brown had authority to enter into the contract since the court failed to find that (1) there was a contract between Gibson and Bostick; (2) that Bostick undertook its repair of the roof for Gibson, the party to be charged; and (3) that Brown was Gibson's agent or had authority to directly contract on Gibson's behalf. Simply stated, Gibson complains that he cannot be liable for a debt for which he did not contract and of which he knew nothing at all. He also argues that he cannot be liable under a theory of quantum meruit because the trial court failed to find that Gibson considered Brown to have authority to act on his behalf. Finally, he contends that no evidence was offered to show that he was liable under a sworn account or a quantum meruit theory.

Standard of Review

In any case tried to the court without a jury, a party may request findings of fact and conclusions of law. Tex.R.Civ.P. 296. Findings of fact have the same force and dignity of a jury verdict. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994); Franco v. Franco, 81 S.W.3d 319, 332 (Tex.App.-El Paso 2002, no pet.). However, they are not conclusive when a complete reporter's record appears in the appellate record. Tucker v. Tucker, 908 S.W.2d 530, 532 (Tex.App.-San Antonio 1995, writ denied). When the trial court acts as a fact finder, its findings are reviewed under legal and factual sufficiency standards. In re Doe, 19 S.W.3d 249, 253 (Tex.2000). Although a trial court's conclusions of law may not be challenged for factual sufficiency, the appellate court may review the conclusions drawn from the facts to determine their correctness. Ashcraft v. Lookadoo, 952 S.W.2d 907, 910 (Tex.App.-Dallas 1997, pet. denied).

In considering a "no evidence" legal sufficiency point, we consider only the evidence and inferences that tend to support the findings and disregard all evidence and inferences to the contrary. See Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992); Texas Tech Univ. Health Sciences Ctr. v. Apodaca, 876 S.W.2d 402, 411-12 (Tex.App.-El Paso 1994, writ denied). If more than a scintilla of evidence supports the questioned finding, the "no evidence" point fails. See Tseo v. Midland Am. Bank, 893 S.W.2d 23, 25 (Tex.App.-El Paso 1994, writ denied).

In reviewing factual sufficiency, we consider all of the evidence, but we do not view it in the light most favorable to the verdict. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996); Levario v. State, 964 S.W.2d 290, 295 (Tex.App.-El Paso 1997, no pet.). We will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Levario, 964 S.W.2d at 295. In conducting a factual sufficiency review, the reviewing court cannot substitute its conclusions for those of the fact finder. See id. It is not within the province of this court to interfere with the fact finder's resolution of conflicts in the evidence or to pass on the weight of credibility of the witnesses' testimony. See id. Where there is conflicting evidence, the fact finder's verdict on such matters is generally regarded as conclusive. See id.

Theory of Quantum Meruit

Quantum meruit damages are available in two contexts: (1) when a plaintiff has partially performed an express contract, but because of the defendant's breach, the plaintiff is prevented from completing the contract and (2) in the absence of an express contract, under the theory of an implied contract. McFarland v. Sanders, 932 S.W.2d 640, 646 (Tex.App.-Tyler 1996, no pet.). Here, quantum meruit damages would have to arise independent of an express contract since Bostick did not contend that it partially...