Schear Hampton Drywall, LLC v. Founders Commercial, Ltd., 14-17-01010-CV

• Court: Court of Appeals of Texas
• Writing for the Court: Frances Bourliot, Justice
• Citation: 586 S.W.3d 80
• Parties: SCHEAR HAMPTON DRYWALL, LLC, Appellant v. FOUNDERS COMMERCIAL, LTD., Appellee
• Docket Number: NO. 14-17-01010-CV,14-17-01010-CV
• Decision Date: 29 August 2019

586 S.W.3d 80

SCHEAR HAMPTON DRYWALL, LLC, Appellant
v.
FOUNDERS COMMERCIAL, LTD., Appellee

NO. 14-17-01010-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed August 29, 2019

Jeffrey Scott Lowenstein, Dallas, for Appellant.

J. W. Beverly, for Appellee.

Panel consists of Justices Christopher, Bourliot, and Spain.

Frances Bourliot, Justice

This dispute involves the foreclosure of a mechanic's lien.¹ Schear Hampton Drywall, LLC sued to foreclose on its lien against Founders Commercial Ltd. and challenges in three issues the trial court's reduction of the amount of Schear Hampton's lien and failure to award attorney's fees to Schear Hampton. We affirm.

Background

Founders entered into a general contract with Construction Supervisors, Inc., for the construction of a senior living residential project in Houston, Texas known as "The Abbey." Construction Supervisors entered a subcontract with Target Masonry to complete brick and stucco work on The Abbey. Target Masonry subsequently walked off the job. Construction Supervisors then hired Schear Hampton to complete the stucco work. The subcontract between Construction Supervisors and Schear Hampton called for Schear Hampton to "[f]urnish and install [s]tucco in compliance with plans and specifications for a complete turnkey job" for the sum of $235,000. According to Schear Hampton, the contract price was increased by $155,967 pursuant to change orders approved by Construction Supervisors.

Midway into construction on The Abbey, Construction Supervisors notified Founders that it could not comply with the general contract because of financial problems. Founders agreed to pay the subcontractors directly and let Construction Supervisors manage the project.

Schear Hampton served Founders with a "Notice to Owner and Prime Contractor of Unpaid Claim for Materials and/or Labor Furnished." In the notice, Schear Hampton claimed that under its subcontract with Construction Supervisors, there was an unpaid balance of $152,173.60 for "materials and/or labor during the months of ... October [and] September 2014." Schear Hampton described its services as "[s]tucco-labor and material." Schear Hampton later filed an "Amended Affidavit for Mechanic's and Materialman's Lien" in the amount of $152,173.60 and then filed this lawsuit against Founders and Construction Supervisors, seeking foreclosure of the lien.

Founders answered and asserted that Schear Hampton's lien claim should be offset by "damages caused by Schear [Hampton's] breach of its subcontract with Construction Supervisors," "the cost to correct errors and omissions by Schear [Hampton] in the performance of its subcontract," and "the amount necessary to complete the work Schear [Hampton] agreed to perform in its subcontract." Founders filed a counterclaim for negligence and breach of contract in connection with Schear Hampton's performance under the subcontract. Founders also sought a

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declaration that Schear Hampton "has been paid the full amount to which it is entitled for its services rendered and materials supplied."

After a bench trial, the trial court rendered judgment that Schear Hampton's lien was partially valid "in the amount of $36,678.32" and that Founders was entitled to an offset for $15,000 in damages on its counterclaim. The trial court awarded Schear Hampton damages of $21,678.32 against Founders and awarded Founders that amount in a default judgment against Construction Supervisors.² The trial court declared that the lien is "null and void and of no force and effect ... to the extent it exceeds the amount of $21,678.32." The trial court also ordered that if the judgment for Schear Hampton was not "paid when final," then Schear Hampton could "conduct a foreclosure sale in compliance with the provisions of the Texas Property Code, with respect to the real property identified" in the lien.

Discussion

Schear Hampton challenges the judgment in three issues, contending (1) the trial court's reduction of the lien and offset for Founders' damages are not supported by legally and factually sufficient evidence; (2) the trial court erred in denying Schear Hampton's request for attorney's fees; and (3) the trial court failed to order a foreclosure in compliance with the Property Code.

I. Is the judgment supported by legally and factually sufficient evidence?

Schear Hampton in its second issue challenges the sufficiency of the evidence in support of the trial court's findings that Schear Hampton was owed less than the amount alleged in its lien and that the lien amount should be offset by the damages awarded to Founders.

We review the trial court's decision for legal and factual sufficiency of the evidence using the same standards applied in reviewing the evidence supporting a jury's finding. Catalina v. Blasdel , 881 S.W.2d 295, 297 (Tex. 1994). We review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson , 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. Id. at 827.

We sustain a legal sufficiency or "no evidence" challenge only when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. Marathon Corp. v. Pitzner , 106 S.W.3d 724, 727 (Tex. 2003) ; Vast Constr., LLC v. CTC Contractors, LLC , 526 S.W.3d 709, 719 (Tex. App.—Houston [14th Dist.] 2017, no pet.). A party attacking the legal sufficiency of an adverse finding on an issue on which it had the burden of proof must show that the evidence conclusively establishes all vital facts in support of the issue. Dow Chem. Co. v. Francis , 46 S.W.3d 237, 241 (Tex. 2001). When a party

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challenges the legal sufficiency of the evidence on a finding on which it did not bear the burden of proof, the party must show that no evidence supports the finding. Exxon Corp. v. Emerald Oil & Gas Co., L.C. , 348 S.W.3d 194, 215 (Tex. 2011) ; Sloane v. Goldberg B'Nai B'Rith Towers , No. 14-17-00557-CV, 577 S.W.3d 608, 621–23, 2019 WL 2000484, at *9 (Tex. App.—Houston [14th Dist.] May 7, 2019, no pet. h.).

In reviewing factual sufficiency, we examine the entire record, considering both the evidence in favor of and contrary to the challenged findings. Mar. Overseas Corp. v. Ellis , 971 S.W.2d 402, 406–07 (Tex. 1998) ; 2900 Smith, Ltd. v. Constellation NewEnergy, Inc. , 301 S.W.3d 741, 746 (Tex. App.—Houston [14th Dist.] 2009, no pet.). When a party attacks the factual sufficiency of an adverse finding on which it bore the burden of proof, it must establish that the finding is against the great weight and preponderance of the evidence. Dow Chem. Co. , 46 S.W.3d at 242 ; Burton v. Prince , 577 S.W.3d 280, 285 (Tex. App.—Houston [14th Dist.] 2019, no pet.). When a party challenges the factual sufficiency of the evidence supporting a finding on which it did not have the burden of proof, we may set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Mar. Overseas Corp. v. Ellis , 971 S.W.2d 402, 407 (Tex. 1998) ; Safeco Ins. Co. of Am. v. Clear Vision Windshield Repair, LLC , 564 S.W.3d 913, 919 (Tex. App.—Houston [14th Dist.] 2018, no pet.). If we determine 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 supporting the trial court's judgment; we need not do so when affirming the judgment. Gonzalez v. McAllen Med. Ctr., Inc. , 195 S.W.3d 680, 681 (Tex. 2006) ; 2900 Smith , 301 S.W.3d at 746.

We apply these standards mindful that the factfinder is the sole judge of the credibility of the witnesses and the weight to be given to their testimony, and we indulge every reasonable inference in support of the factfinder's findings. See City of Keller , 168 S.W.3d at 819, 822 ; 2900 Smith , 301 S.W.3d at 745. When, as here, there is a complete reporter's record of the trial, the trial court's findings of fact will not be disturbed on appeal if there is any evidence of probative force to support them. See Barrientos v. Nava , 94 S.W.3d 270, 288 (Tex. App.—Houston [14th Dist.] 2002, no pet.). Likewise, incorrect conclusions of law will not require reversal if the controlling facts support a correct legal theory. BMC Software Belgium, N.V. v. Marchand , 83 S.W.3d 789, 794 (Tex. 2002).

A. Evidence of Amount Owed to Schear Hampton

Schear Hampton challenges the trial court's finding that "[t]he balance owed to [Schear Hampton] for work on The Abbey performed by [Schear Hampton] is $36,678.32." Schear Hampton argues that it presented the following evidence: (1) it was owed $390,967 under the subcontract and change...