Wing Aviation, LLC v. Art Balmanno D/B/A Paint Booth Services

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In The



Court of Appeals



Ninth District of Texas at Beaumont



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NO. 09-06-022 CV

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WING AVIATION, L.L.C., Appellant



V.



ART BALMANNO D/B/A PAINT BOOTH SERVICES, Appellee



On Appeal from the County Court at Law No. 2

Montgomery County, Texas

Trial Cause No. 03-07-04845 CV



MEMORANDUM OPINION

Wing Aviation, L.L.C. appeals the trial court's judgment for $11,188.44 in damages in favor of Art Balmanno d/b/a Paint Booth Services. We affirm the judgment on the contract claim.

Wing hired a general contractor, Southwest Refinishing Systems, Inc., to construct a paint booth facility at the Montgomery County Airport. Southwest subcontracted with Balmanno to provide and install the paint booth's exhaust ducts. Balmanno agreed to additional duct work at the request of Wing's representatives. Balmanno invoiced Wing for the additional labor and materials but never received payment.

Balmanno sued Wing and Southwest for "suit on account" and quantum meruit. The trial court entered a default judgment against Southwest. After a bench trial, the court held Wing directly responsible for the additional work Wing requested of Balmanno. The final judgment found Wing and Southwest jointly and severally liable, and awarded Balmanno actual damages of $11,188.44, prejudgment interest, and attorney's fees.

Wing presents two issues. First, Wing contends that because the express contracts between Wing and Southwest and Southwest and Balmanno covered the services or materials for which Balmanno seeks recovery, Balmanno is precluded from recovering from Wing under quantum meruit. Second, Wing argues there was no open account agreement between Wing and Balmanno. We address Wing's second issue as it is dispositive. (1)

In a suit on account, a plaintiff is required to prove: (1) the sale and delivery of merchandise or performance of services; (2) that the amount of the account is "just," that is, the prices charged are pursuant to an express agreement, or in the absence of an agreement, that the charges are usual, customary, or reasonable; and (3) that the outstanding amounts remain unpaid. Powers v. Adams, 2 S.W.3d 496, 499 (Tex. App.--Houston [14th Dist.] 1999, no pet.); see also Worley v. Butler, 809 S.W.2d 242, 245 (Tex. App.--Corpus Christi 1990, no writ); Tex. R. Civ. P. 185. Wing argues Balmanno cannot recover on this claim. Instead, Wing claims it could only be liable to Balmanno through a "pass through claim," which may permit a general contractor to bring an action against the owner if the general contractor is liable to the subcontractor. We disagree.

The dispute revolves around whether a separate contract existed between Balmanno and Wing. The controversy relates to Wing's instructions to Balmanno for duct work offsets and for duct work welding instead of silicone sealing. Balmanno testified that the original duct-work bid that he provided to Southwest involved twelve exhausts with the duct work going straight through the roof. Balmanno testified Wing representatives later informed him that the duct work would require "offsets" because the exhaust fans were moved on the exhaust plenum. Brian Wing, president of Wing, testified the "offsets" were necessary because of Southwest's poor planning and Southwest's failure to timely provide Wing with plans and specifications. Balmanno testified that when he informed Wing's representatives the offsets were going to cost more, Wing instructed him to do the offsets. Balmanno completed the duct work according to Wing's instructions.

As to the silicone sealing, Balmanno testified he was required to deliver the materials thirty to forty-five days before installation. In order to comply with the request, he delivered the stacks prior to preparing them for installation. He explained that rust appears on ninety-nine percent of the flanges his company buys, and any rust is remedied when the stacks are "cleaned up, primered, and painted" before installation. Balmanno had not yet completed cleaning, priming, and painting the flanges.

According to Brian Wing, the exhaust stacks were "rusting very badly" and the silicone was coming off. When he expressed his concern in a meeting attended by Gregg Goza, president of Southwest, Wing representatives, and Balmanno, Goza offered to take the exhaust stacks back to the shop and rework them. Balmanno testified that Wing requested the changed duct work and when Balmanno explained it would cost more, Wing's representatives told him to go ahead with the welding. Balmanno did the welding as instructed. (2)

The contract between Wing and Southwest provided that Southwest would "[c]omplete electrical wiring, airlines, plumbing and duct work" for the paint booth. According to Balmanno, Southwest hired his company to "furnish and install the exhaust ducts for the exhaust." Balmanno says that offsets requested by Wing representatives were not a part of his contract with Southwest. He stated that if the offsets had been a part of his contract with Southwest, Goza would have informed him of it. Brian Wing admitted that four months before the lawsuit was filed, he acknowledged to Balmanno the changes made to the intake were "engineering changes." Goza testified Southwest hired Balmanno's company to install the two air makeup systems, complete the duct work on the exhaust, and do the elbows and connections for the duct work. Goza testified the extra work by Balmanno was provided at Wing's request and that the extra work was "in excess of the original scope of the project." Balmanno introduced into evidence Southwest's letter to Brian Wing in which Southwest stated:

[T]he issues here relate to work performed beyond the scope of work [Southwest] had contracted [Balmanno] to do. The work [Southwest] contracted [Balmanno] to complete was in accordance to Standard Building Codes which all parties had agreed upon when the project was initiated. [Southwest] paid [Balmanno] accordingly.



The billings in question were additions on the job site requested and approved by WING personnel (i.e. Carlin and Frank). These requests or orders are recognized in the industry as "Changes of Order" and were given by WING, therefore to be billed separately and directly to WING as these specifications were not a part of [Southwest's] contract with either WING or [Balmanno].



Wing asserts the contract between Wing and Southwest was not "complete" until the offset duct work was finished. Essentially, Wing claims Balmanno's work on the offsets was part of the Wing/Southwest contract and not a separate agreement. Wing relies on Texas Wood Mill Cabinets, Inc. v. Butter, 117 S.W.3d 98 (Tex. App.--Tyler 2003, no pet.). In Butter, the court interpreted "completion" according to its ordinary meaning. See id. at 103-04. The court determined the contract was not completed "until the cabinets were constructed, installed, and functional." See id. at 104. Applying the same ordinary meaning, Wing contends the contract between Wing and Southwest was not complete until all the work, including the extra work, was finished. Butter addressed whether a contractor had timely filed his statutory lien under the Texas Property Code. See id. at 103-04. The court in Butter interpreted "completion" because the statutory definition did not apply to contracts entered into before September 1, 1999. See id. at 104.

Wing provides no authority for the application of Butter to these facts. Brian Wing stated at trial that Wing could make changes "within reason" for the changes to still be considered part of the contract between Wing and Southwest. Balmanno testified offsets have never been included in any of his contracts and they are "always the owner's additional expense." Balmanno stated that out of approximately 2000 duct jobs he has completed, the welding Wing demanded has never been a requirement. (3)

Sufficient evidence supports the trial court's finding that the extra work requested by Wing and performed by Balmanno was outside the scope of the original contracts between Wing and Southwest and Southwest and Balmanno. A separate contract existed between Wing and Balmanno for the extra work, and this contract is subject to a suit on an account. Appellant's issue challenging Balmanno's suit on account claim is overruled.

The trial court's judgment is affirmed.

AFFIRMED.

_________________________________

DAVID GAULTNEY

Justice



Submitted on May 11, 2006

Opinion Delivered August 24, 2006



Before McKeithen, C.J., Gaultney and Kreger, JJ.

1.

The trial court's conclusions of law include the alternative theories of "suit on account" and quantum meruit. Because the trial court implicitly found an express contract existed between Wing and Balmanno, Balmanno's quantum meruit claim should have been precluded. See In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 740 (Tex. 2005). But cf. Freeman v. Carroll, 499 S.W.2d 668, 670 (Tex. Civ. App.--Tyler 1973, writ ref'd n.r.e.); Univ. State Bank v. Gifford-Hill Concrete Corp., 431 S.W.2d 561, 574 (Tex. Civ. App.--Fort Worth 1968, writ ref'd n.r.e.); Clower v. Brookman, 325 S.W.2d 440, 444 (Tex. Civ. App.--San Antonio 1959, no writ). A reviewing court may review the trial court's legal conclusions drawn from the facts to determine their correctness. Templeton v. Dreiss, 961 S.W.2d 645, 656 n.8 (Tex. App.--San Antonio 1998, pet. denied); Dallas County v. Sweitzer, 881 S.W.2d 757, 763 (Tex. App.--Dallas 1994, writ denied). If the reviewing court determines a conclusion of law is erroneous, but the trial court rendered the proper judgment, the erroneous conclusion of law does not require reversal. Scholz v. Heath, 642 S.W.2d 554, 559 (Tex. App.--Waco 1982, no writ). Because the trial court here rendered the proper judgment, the conclusion of law allowing for Balmanno's alternate recovery under quantum meruit does not require reversal.

2.

Wing also requested that Balmanno install water heaters known as "hotsy units." Wing contends this work was under a direct contract with Balmanno and was the only work outside the scope of the paint booth contract. Balmanno testified he informed Frank Zimmerman, a Wing representative, that the job would cost extra and Zimmerman told him to do the work. Wing paid Balmanno for his work on the hotsy units.

3.

Wing challenges the legal sufficiency of the evidence supporting the trial court's finding of fact that "Wing Aviation had originally agreed to pay Balmanno directly for the extra services and charges but then later changed its position and refused to pay for those services and charges." In addition to Balmanno's testimony, Goza testified that a Wing representative informed him that Wing would pay Balmanno, but then Wing subsequently decided the work should have been included in the original contract, and informed Goza that Wing refused to pay Balmanno. As factfinder, the trial judge determined the credibility of the testimony. Sufficient evidence exists to support the trial court's finding that Wing agreed to pay Balmanno for the extra work but later refused to pay.