Affirmed and Opinion filed February 20, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-02-00154-CV
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SASSAM SASSOON, INDIVIDUALLY and
d/b/a SASSOON PROPERTIES INVESTMENT GROUP, INC., Appellants
V.
HERBERT THOMPSON d/b/a HERBERT THOMPSON ROOFING COMPANY, Appellee
On Appeal from the County Civil Court at Law No. 1
Harris County, Texas
Trial Court Cause No. 728,381
M E M O R A N D U M O P I N I O N
Appellants, Sassam Sassoon, individually and d/b/a Sassoon Properties Investment Group, Inc. (Sassoon) appeals from a judgment in favor of Herbert Thompson d/b/a Herbert Thompson Roofing Company (Thompson) following a jury trial in which the jury found that both parties breached a contract between them, but Thompson=s breach was excused and Sassoon=s was not. In two issues, Sassoon challenges the legal and factual sufficiency of the evidence supporting the jury=s verdict and the damages awarded to Thompson. We affirm.
FACTUAL BACKGROUND
In April of 1999, Sassoon contracted with Thompson to repair and replace a section of roof on a commercial building it owned. The contract provided as follows:
We hereby propose to furnish all the materials and perform all the labor necessary for the completion of:
Tare [sic] off old roof, and sweep clean. Nail a base sheet, with special type galvanized nails. Hot mop one layer of fiberglass felt paper, with hot tar. Hot mop the single ply system of Tamko Tam Flex #170 White. Will cut tree limbs that are hanging low over the roof. Will put 2 very large vents [sic] tops back on that have been left off, and lying on the roof. Will clean and haul off my trash. All labor is guaranteed 5 years, and a 12 years manufacturing warranty on the materials.
The contract also provided that all material was guaranteed to be as specified, and the above work was to be performed “in accordance with the drawings and specifications submitted for above work and completed in a substantial workmanlike manner.” The total cost for the work specified was $23,500.00, with $5,000.00 due “3 days after work and all materials on site,” $5,000.00 after completion, and the balance of $4,500 due each month beginning June 1, 1999. The contract further provided that “[a]ny alterations or deviations from above specifications involving extra costs, will be executed only upon written orders, and will become an extra charge over and above the estimate.”
Shortly after Thompson began working on the roof, he encountered difficulty with the lightweight concrete deck material under the old roof. The material had been exposed to water, which caused it to degrade and become weakened. Thompson tried to contact Sassoon to discuss the alternatives for strengthening the deck before replacing the roof, but Sassoon refused to come to the work site to view the problem. Consequently, Thompson tried to dig out some of the deck material and fill in the weakened areas with “blackboard insulation” (described as a kind of plywood sheet) and some of the old roof materials. The areas where the deck material was degraded also would not hold nails, so Thompson was unable to nail down all of the base sheet as the contract specified.
Thompson then applied a single layer of fiberglass felt paper over the base sheet as specified in the contract, but because he was not satisfied that the single layer was sufficient, he applied a second layer even though the contract required only one. Thompson was unable to discuss the extra work with Sassoon or obtain a change order because he was still unable to contact Sassoon.
According to Thompson, he stopped working temporarily until Sassoon gave him the first $5,000.00 payment, although Sassoon contends on appeal that he made the payment before it was due because not all materials were at the site yet. After receiving the first payment, Thompson resumed working on the roof. As specified in the contract, Thompson used Tamko Tam Flex #170 roofing material on most of the area, but he also used another material, Gemstar GMS, which he considered to be the equivalent of the Tamko Tam Flex.[1] Thompson discussed using Gemstar GMS with Sassoon, who approved the substitution. Thompson also reinstalled the vent tops that previously had been left on the roof and attempted to make temporary repairs to them because they were in “bad shape,” but he did not request any extra money for making the repairs.
After Thompson finished working on the roof, Sassoon refused to make any more payments. In response to Thompson=s collection efforts, Sassoon contended that the work was not substantially completed, it was not performed in accordance with the contract, and was not completed in a workmanlike manner. Sassoon also contended that Thompson had not satisfied the statutory requirements for placing a lien on the property. Because Sassoon did not pay the balance due, Thompson refused to provide the labor guarantee and materials warranty specified in the contract.
PROCEDURAL BACKGROUND
Thompson filed suit to recover the balance due on the contract, alleging breach of contract and other claims, and ultimately adding an alternative claim for quantum meruit. Sassoon counterclaimed with a number of claims. On October 24, 2001, the case was tried to a jury.
The jury made the following pertinent findings: (1) the roof was repaired in accordance with the contract; (2) Thompson breached the contract in some manner; (3) Thompson=s failure to comply with the contract was excused; (4) Sassoon breached the contract by failing to pay; (5) Sassoon=s breach was not excused; (6) Thompson=s failure to comply with the warranty was a producing cause of damages to Sassoon, but the jury was not asked to assess damages; (7) Sassoon waived his right to recover against Thompson for breach of contract; and (8) Thompson=s damages were $23,500.
After the jury returned its verdict, the trial court signed a judgment awarding Thompson damages of $18,500.00 (the jury award was reduced to reflect Sassoon=s payment of $5,000.00), interest, and attorney=s fees. Sassoon filed a motion for judgment notwithstanding the verdict, or alternatively, motion for new trial or remittitur, which was overruled by operation of law. This appeal followed.
DISCUSSION
On appeal, Sassoon raises two issues. In the first, he contends that the evidence is legally and factually insufficient to support the jury=s finding that Sassoon=s failure to comply with the contract was excused. In the second, Sassoon contends that the evidence is legally and factually insufficient to support the jury=s damage award to Thompson. We address each in turn.
1. Is the evidence sufficient to support the finding that Sassoon=s failure to comply with the contract was not excused?
Sassoon acknowledges that he had the burden at trial to demonstrate that his breach of contract was excused. See, e.g., Howell v. Kelly, 534 S.W.2d 737 (Tex. Civ. App.CHouston [1st Dist.] 1976, no writ). Therefore, on appeal, Sassoon=s legal sufficiency challenge requires him to show that the evidence conclusively established that his failure to perform under the contract was excused as a matter of law. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). To sustain a factual sufficiency challenge, he must show that the jury=s finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. See Francis, 46 S.W.3d at 242; Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
The crux of Sassoon=s argument is that his breach is excused because Thompson breached the contract first by failing to repair the roof in a workmanlike manner, by providing substandard work, and by causing greater damage to the roof. Sassoon contends the jury=s finding that Thompson failed to comply with the contract and failed to comply with a warranty supports his argument.[2] Sassoon also contends, as part of this issue, that the evidence was legally and factually insufficient to support the jury=s finding that Thompson=s failure to comply was excused.
Sassoon has not carried his burden to show that Thompson breached the contract first. The quality of Thompson’s work was hotly disputed at trial. Thompson testified in detail about the contract and the work he performed on the roof. He also testified that Sassoon never asked him to come out and make any repairs to the roof. Thompson then introduced the testimony of his expert roofing consultant, Jerry Garrett. Garrett testified generally about the condition of the roof at the time he inspected it, and responded to specific complaints that Sassoon had made regarding alleged defects in the work.[3] On cross-examination, he acknowledged that Thompson=s work “left a little to be desired” and some of his methods were not industry standard. However, he did not say that the work was deficient, or that the roof did not perform as intended. In fact, as to one of the main complaintsCthat the roof had soft spotsCGarrett said it was very possible that Thompson=s method, while unorthodox, would hold and would seal the area back together.[4]
Sassoon was the only witness in support of his claims against Thompson. He testified that the section of the roof Thompson did not work on had been replaced by another company approximately a year earlier at a cost of $8,500.00, and that section had no leaks or damage. In contrast, the section of the roof Thompson replaced was in worse condition after he worked on it than before, and there were more leaks. Sassoon submitted into evidence several photographs of various sections of the roof, including some showing standing water, and several pictures of interior leaks.[5] Sassoon also testified that he did not get the repairs to the roof he felt he bargained for. Finally, Sassoon also disputed Thompson’s contention that he was not given an opportunity to return to the property to make repairs, although the only evidence of this was an offer contained in a lawyer=s demand letter.
In sum, the testimony regarding the quality of Thompson=s work was conflicting. On this issue, neither side proved anything as a matter of law. This was a classic case for the jury, and the jury made a decision. As the sole judge of the credibility of the witnesses and the weight to be given their testimony, a jury=s findings will not be disturbed if there is evidence of probative force to support them. See Benoit v. Wilson, 150 Tex. 273, 281, 239 S.W.2d 792, 796B97 (1951); Tigner v. City of Angleton, 949 S.W.2d 887, 889 (Tex. App.CHouston [14th Dist.] 1997, no writ). On this record, Sassoon has not conclusively demonstrated (1) that Thompson breached the contract first by performing substandard or deficient work on the roof, or (2) that the jury=s finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.
In reaching this conclusion, we cannot help noting that Sassoon=s attempt to meet his burden on appeal was complicated by the charge, which was a mess. Although Sassoon claims on appeal that Thompson breached the agreement first so that Sassoon’s breach was excused, the charge did not ask the jury to decide this specific issue. At trial, Sassoon objected to the submission of several jury questions, including question 5, saying that it might result in conflicting findings, but on appeal, Sassoon attacks only two questions in the chargeCwhich we have already held are supported by evidenceCand does not complain about conflicting findings. Because the rest of the questions are not attacked on appeal, we must try to harmonize the jury’s answers so that the charge can be upheld. Bender v. S. Pac. Transp. Co., 600 S.W.2d 257, 261B62 (Tex. 1980). We can do that here.
From reading the record and the jury=s answers, it appears that the jury concluded the following: the roof was completed in accordance with the contract (based on the “yes” answer to question 1); Sassoon breached by not paying Thompson (based on the answer to question 2); Thompson breached by not providing Sassoon a warranty[6]; but, Thompson=s breach was excused because Sassoon did not pay him.[7] Finally, Sassoon waived his right to recover against Thompson for any breach.
We admit that this is not the easiest way to get to a verdict in this case, but this is how the parties chose to submit the case, and we are limited on review to the issues raised on appeal.[8]
In summary, Sassoon did not carry his burden to prove as a matter of law that Thompson breached the contract in the manner in which he repaired the roof and, therefore, that Sassoon=s breach was excused. The evidence is legally and factually sufficient to support the jury=s finding that Sassoon=s breach was not excused. Issue one is overruled.
2. Is the evidence legally and factually sufficient to support the jury=s damages award to Thompson?
In this issue, Sassoon contends that the evidence is insufficient to support the jury=s award of damages to Thompson in response to Question 4.[9] Specifically, Sassoon argues that there was no evidence or insufficient evidence of the cost of Thompson=s labor and materials.
When, as here, a party challenges the legal sufficiency of the evidence supporting an adverse finding on an issue on which it does not have the burden of proof, that party must demonstrate on appeal that there is no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). If the record contains any evidence of probative force to support the jury=s finding, the legal insufficiency challenge must be overruled. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997). When reviewing a jury verdict to determine the factual sufficiency of the evidence, we must consider and weigh all the evidence, and should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985); In Re King’s Estate, 150 Tex. 662, 664B65, 244 S.W.2d 660, 661 (1951).
Question 4 read as follows:
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate [Thompson] for his damages, if any, that resulted from the failure of [Sassoon] to comply with its agreement with [Thompson] on the Project?
Consider the following elements of damages, if any, and none other. Consider each element separately. Do not include damages for one element in any other element. Do not include any amount for interest on past damages, if any.
Element a: The reasonable and necessary costs to compensate [Thompson] for the labor and/or materials provided to the project.
Element b: Any and all other damages, costs or expenses incurred in connection with [Sassoon=s] failure to comply with the agreement.
You are instructed that, with respect to Question No. 4, [Thompson] need only prove his damages with a reasonable degree of certainty. This does not require proof to an absolute mathematical certainty. If a wrong has been done from which monetary loss results, you may make a just and reasonable estimate of the damage based on relevant data, including opinion evidence, even if the extent of damages cannot be proved precisely.
Answer in dollars and cents for damages:
Answer: “$23,500 a” “0 b”
The jury=s answer indicates that the jury awarded damages only for element “a,” the “reasonable and necessary costs to compensate [Thompson] for the labor and/or materials provided to the project.” Therefore, we will consider only the sufficiency of the evidence supporting this element. See Rice Food Markets, Inc. v. Ramirez, 59 S.W.3d 726, 732B33, 735 (Tex. App.CAmarillo 2001, no pet.).
Sassoon contends that the wording of element “a” reflects Thompson=s decision to seek reliance damages rather than expectancy damages for breach of contract. Because Thompson failed to present any evidence of “what Thompson’s costs were for the labor or materials, what his profit margin was, or whether his costs incurred were reasonable and necessary to the project,” Sassoon argues, the evidence is insufficient to support the damages award. We find that, under the facts of this case, the evidence was sufficient to support the jury=s award because the contract was one for labor and materials, and Thompson was working for himself.
The contract consisted, in summary, of a proposal to “furnish all the materials and perform all the labor necessary for the completion of” the specified work, for the sum of $23,500.00. Thus, the contract reflects the parties’ agreement that $23,500.00 was a reasonable sum to compensate Thompson for his provision of labor and materials. Likewise, element “a” instructed the jury to consider the reasonable and necessary costs to compensate Thompson for exactly what he agreed to provide: labor and materials. At trial, the contract was admitted into evidence and Thompson testified as to the contract balance. He testified in detail about the work he performed, the materials he used, and why the work was necessary to replace the roof. He also testified that he worked for himself and owned his company, and the record reflects that he did the work on Sassoon=s building by himself. Therefore, the contract price, less the cost of materials, represented payment for his own labor and, consequently, his profit.[10] Under these facts, it was not necessary for Thompson to provide detailed evidence of the amount of money he spent on the materials purchased, his profit margin, or a breakdown of the cost of his own labor by rate and time. The evidence is sufficient in this circumstance to support the jury=s answer to Question 4. Cf. Stamp-Ad, Inc. v. Barton Raben, Inc., 915 S.W.2d 932, 936 (Tex. App.CHouston [1st Dist.] 1996, no writ) (holding evidence of contract price was sufficient, in action by executive search firm against client to recover remaining amount owed on contract, to uphold jury award). We overrule Sassoon=s second issue, and, as a result, we affirm the judgment of the trial court.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Opinion filed February 20, 2003.
Panel consists of Chief Justice Brister and Justices Hudson and Fowler.
[1] At trial, Thompson=s expert, a roofing consultant, testified that the Tamko Tam Flex #170 and the Gemstar GMS were Avirtually the same product.@
[2] Sassoon takes the position that the jury=s affirmative answer to Question 1, which asked whether Thompson repaired the roof in accordance with the contract, does not conflict with these findings, because the jury may have determined that Thompson performed some work in accordance with the contract in Question 1, but found in answer to Question 5 that Thompson breached certain specific obligations under the contract. In the alternative, however, Sassoon states that the jury=s answer to Question 1 is not supported by legally or factually sufficient evidence.
[3] For example, Garrett acknowledged that there were Asoft spots@ in the roof, but opined that they were probably the result of the unstable decking below. Garrett testified that Thompson=s attempt to repair the soft spots using old roof material was not one of his suggested options for repair, but it was a method used quite a bit in the industry. Moreover, he testified, the existence of soft spots did not necessarily mean there was a breach in the integrity of the roof. He also admitted, however, that a new roof should not have soft spots. Garrett acknowledged there were areas where water collected, but he attributed those to the sagging understructure of the deck.
[4] Sassoon=s lawyer objected to this testimony, but the jury was not instructed to ignore it.
[5] Only two of the photographs were discussed in any detail. One showed a large puddle or pond of water on a section of the roof Sassoon contended was part of the section Thompson had repaired; it also showed several tree limbs hanging over the roof. Sassoon explained that another picture showed the portion of the roof that Thompson did not work on. Other photographs were referenced generally as showing interior leaks or Thompson=s repairs to the vent tops.
[6] This conclusion is based on the jury=s answer to question 1, in which the jury concluded Thompson performed in accordance with the contract, on the jury=s answer to question 5, in which the jury was instructed that A>failure to comply with its contract= means failure to perform any promise which forms a whole or any part of the contract,@ (emphasis added) and on the jury=s answer to question 8, in which the jury held that Thompson failed to comply with the contractual requirement to give Sassoon a warranty. This conclusionCthat the breach only had to do with the warranty and not the workmanshipCis consistent with the jury=s finding that the roof was repaired in accordance with the contract.
[7] The uncontroverted expert testimony was that it was not customary for a roofer to give a warranty if he were not paid.
[8] Sassoon has not brought an issue attacking the following findings: (1) that the roof was repaired and replaced in accordance with the contract; and (2) that Sassoon waived his right to recover against Thompson. Since they were not challenged, we presume there is sufficient evidence to support them. He also has not argued that the jury=s answers fatally conflict with each other. See Bay Petroleum Corp. v. Crumpler, 372 S.W.2d 318, 319 (Tex. 1963).
[9] Sassoon argues that Question 19, in which the jury also awarded damages of $23,500.00 to Thompson, is duplicative of Question 4. Question 19 asked, A[w]hat is the value of the labor done and materials furnished by [Thompson] for the construction of improvements or repair of the building and property located at 2616 Blodgett?@ Our resolution of Sassoon=s issue two makes it unnecessary for us to discuss Question 19.
[10] If Thompson had hired other people to help him with the work, we could probably assume that the contract price included an amount for profit. However, that did not happen. ThompsonCwho was self-employedCworked for himself, and so it was unnecessary for him to add in a layer of profit above and beyond his basic labor rate.