Lee v. Ardoin
| Decision Date | 23 August 1984 |
| Docket Number | No. 09,09 |
| Citation | 677 S.W.2d 686 |
| Parties | Ricky LEE and wife, Lou Ann Lee, and Randy Lee and wife, Cynthia Lee, Appellants, v. Stanley ARDOIN, d/b/a Ardoin & Ardoin, Appellee. 83 148 CV. |
| Court | Texas Court of Appeals |
This is an appeal by Ricky Lee and wife, Lou Ann Lee and Randy Lee and wife, Cynthia Lee, appellants, from a judgment awarded in a non-jury trial in favor of Stanley Ardoin, d/b/a Ardoin & Ardoin, appellee. The dispute arose out of two transactions wherein the appellants contracted with appellee, a building contractor, for the construction of two (2) houses, on a cost-plus basis with the appellee to receive 10% of the cost for his services. A builder's and mechanic's lien contract in favor of appellee was executed by each appellant, along with promissory notes which were collaterally assigned to Allied Merchants Bank. 1
After the houses were substantially completed according to the plans and specifications as modified, the parties were unable to complete the transactions when a dispute arose over the total cost and quality of the two houses. Suits were filed by appellee against each appellant seeking foreclosure and judgment for amounts still owed and were consolidated by the trial court. In both suits appellee named several subcontractors who were still owed sums due for labor and materials, alleging that appellants were responsible for payment to them and sought damages which included the amounts still owed subcontractors.
The bank joined, asking payment and foreclosure of their collaterally assigned obligations. Several of the subcontractors intervened, some being represented by the same counsel as appellee.
The trial court appointed a master in chancery to hear facts and make factual and legal recommendations, but with the strict limitation that the trial court "may confirm, modify, correct, reject, reverse or recommit the report, after it is filed."
The trial court did not accept all of the master's recommendations or findings, and awarded judgment for appellee and against appellants, which included amounts claimed by the subcontractors. The court directed that the appellee pay the subcontractors out of said judgment but did not specify nor set out what amounts or what subcontractors were to be paid. The trial court also granted the bank a judgment and foreclosure against appellants and appellee.
Neither the bank nor any subcontractor appealed.
Appellants' first two points of error complain of the trial court's disregarding the master's findings and awarding appellee an amount which included the subcontractors claims. Points of error three and four contend there was no showing that the expenses of the contractor and subcontractors were reasonable and necessary and there was no evidence or insufficient evidence to support the judgment.
This was a non-jury trial, and as no findings of fact or conclusions of law requested, none were filed. Therefore, the court's judgment implies all facts necessary to support the judgment and we will affirm the judgment if it can be upheld on any legal theory finding support in the evidence. Goodyear Tire and Rubber Co. v. Jefferson Construction Co., 565 S.W.2d 916 (Tex.1978); Lassiter v. Bliss, 559 S.W.2d 353 (Tex.1977) and authorities cited therein.
Appellants' argument that the trial court erred in awarding a lump sum which included subcontractors' claims is based on TEX.REV.CIV.STAT.ANN. art. 5463, (Vernon 1961) (the "trapping statute" whereby subcontractors can trap funds in the owners' hands not yet paid to the general contractor) and TEX.REV.CIV.STAT.ANN. art. 5469 (Vernon 1961) (the "retainage statute" whereby the owner must retain 10% of the contract price, and on failing to do so, may be subject to a subcontractors lien to the extent of the 10% to secure payment to the subcontractors). 2 Appellants cite First National Bank in Graham v. Sledge, 653 S.W.2d 283 (Tex.1983) and Da-Col Paint Manufacturing Co. v. American Indemnity Co., 517 S.W.2d 270 (Tex.1974). Unlike the above cases, involving a bankrupt contractor with a sum certain for the contract price, our facts are entirely different. The contract was a cost-plus agreement, and appellant made no objection to the finding of the master or the trial court that appellee had substantially performed and could enforce...
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Sage Street Associates v. Northdale Const. Co.
...breach, and the total reimbursable costs. See Burditt v. Sisk, 710 S.W.2d 114, 118 (Tex.App.--Corpus Christi 1986, no writ); Lee v. Ardoin, 677 S.W.2d 686, 688-89 (Tex.App.--Beaumont 1984, no writ). 6 Here a further complication is presented by the contractual ceiling on reimbursable costs.......
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Burditt v. Sisk
...of a "cost-plus" contract has been required to prove only the contract, the breach and the total costs in order to recover. Lee v. Ardoin, 677 S.W.2d 686, 688-89 (Tex.App.--Beaumont 1984, no In the instant case, the contractor sued to recover his 5% fee only for the work he completed before......