Dowtech Specialty Contractors, Inc. v. City of Weinert, Texas

Opinion filed September 25, 2020

In The

Eleventh Court of Appeals
__________

No. 11-18-00246-CV
__________

DOWTECH SPECIALTY CONTRACTORS, INC., Appellant
V.
CITY OF WEINERT, TEXAS, Appellee

On Appeal from the 39th District Court
Haskell County, Texas
Trial Court Cause No. 12278

OPINION
Appellant, Dowtech Specialty Contractors, Inc., sued Appellee, the City of
Weinert, Texas, for breach of contract after the City refused to pay Dowtech’s final
payment request on a contract for the construction of improvements to the City’s
pump station. Dowtech sought to recover both the unpaid balance on the contract
and the charges for work outside the original scope of the contract. The City filed
counterclaims for breach of contract and for breach of warranty and requested either
liquidated damages under the contract or, alternatively, the costs to complete the
unfinished work as well as its “repair expenses.”
 After a bench trial, the trial court ordered the City to pay Dowtech $2,052.50
for the additional work that Dowtech performed and denied Dowtech’s request for
the contract balance and for interest, the City’s request for damages, and both
Dowtech’s and the City’s request for attorney’s fees. In three issues, Dowtech
contends that the trial court erred when it determined (1) that Dowtech was not
entitled to recover on its claim for the contract balance, (2) that a change order that
reduced the amount of the contract was valid, and (3) that Dowtech was not entitled
to recover attorney’s fees. We affirm the trial court’s judgment.
Background
The City’s water supply is a combination of well water and water obtained
from the North Central Texas Municipal Water Authority (the NCTMWA). Because
the nitrates in the well water were in excess of regulatory limits, the well water
needed to be treated before it was distributed. To allow it to treat the well water, the
City decided to construct improvements to its pump station to separate the well water
system from the NCTMWA system and to “pressurize” the water distribution
system. The City ultimately obtained a total of $296,587 in grants for the project
from the Texas Department of Agriculture, the Texas Water Development Board,
and the Haskell County Water Supply District No. 1.
The City hired Chester Theodore Carthel, a civil engineer, to assist on the
project. Carthel prepared the plans, the technical specifications, and the bid package.
The bid form set out a number of “line items” for different parts of the project. The
bid was the total of the costs for each line item.
The bid form contained a line item for “NCTWMA [sic] controls &
communication allowance.” According to Carthel, this line item was for
Supervisory Control and Data Acquisition (SCADA) work that would allow the
NCTMWA to open and close the valve on its supply line. MGM Controls, LLC was
selected to do this work.
2
 On June 4, 2015, in Addendum No. 1 to the bid documents,1 Carthel provided
to the bidders an e-mail from MGM Controls that “outlin[ed] the scope of work for
the $20,000 NCTWA [sic] instrumentation line item.” In the e-mail, Leland Godbee,
the vice president of MGM Controls, stated that MGM Controls’ work was related
to the “control valve” and the “Tank pressure transmitter.” MGM Controls would
also provide “modifications to NCTWMA [sic] programs” and a maximum of four
hours of training on “troubleshooting and normal operation.” The cost for MGM
Controls’ work was $20,800. Attached to Addendum No. 1 was a bid form with
$20,000 entered for the NCTMWA controls and communication allowance line
item.
On June 5, 2015, in Addendum No. 2 to the bid documents, Carthel provided
the bidders with a revised bid form for the project. Carthel specifically noted that
the “NCTMWA instrumentation allowance was adjusted to $21,000.00 to better
match the estimate from MGM Controls of $20,800.”
On June 23, 2015, in Addendum No. 4 to the bid documents, Carthel noted
that the “Process & Instrumentation Diagram” had been revised. The revised
diagram depicted a valve in the NCTMWA line with an M in a square above it. Next
to the valve was the notation “NCTMWA control/comm. panel.”
Carthel also attached a revised bid form to be used for the project. Carthel
specifically noted that line items had been added for “distribution/well line
separation work” and for “Control Systems” and that the “Pumps” line item had been
modified “to remove pump controls and have unit price for each pump.”
Carthel instructed the bidders that “Specification Section 13400 –
Instrumentation and Control” should be replaced with a revised section that was

1
The addenda to the bid documents were part of the contract. In the addenda, Carthel provided
detailed information about the bid process and made changes to the bid form, the drawings, and the
specifications. We set out only those changes that are relevant to the issues in this appeal.

3
attached to Addendum No. 4. The revised Section 13400 contained the
“requirements, procedures, and equipment specifications for furnishing and
installing a complete and operational control system and accessories.” The revised
Section 13400 also provided that “[n]ot every component necessary for a
complete and operational system had been specified” and that it was the
“Contractor’s responsibility to provide and furnish ALL items necessary to
monitor the systems specified, control the systems necessary, and communicate
with the necessary components.”
The revised Section 13400 set out “System Loop Descriptions” to generally
describe the “operational intent of the control loops.” For the “Service Pump Loop,”
which controlled three service pumps, both the line pressure and the level in the
ground storage tank were required to be transmitted to the pump control panel.
When the line pressure reached a preset level, the pump control panel would start
the lead pump. When the line pressure dropped to a preset level, the pump control
panel would start the lag pump. When the line pressure reached “the high pressure,”
the pump control panel would turn off all the pumps. The pump control panel would
also turn the pumps off or on based on the level in the ground storage tank.
The revised Section 13400 specified that the pump control panel was required
to indicate the status of each pump, the line pressure level, and the pump run time;
to record the pump run time and the line pressure; to communicate with the “Well
Communication System to start or stop the wells based on the ground storage tank
level”; and to have audible and visual alarms for high or low level in the ground
storage tank and for high or low pressure in the water distribution system. It also
contained specifications for (1) a “level indicating transmitter” on the ground storage
tank; (2) a “Well Communication System” that required a FreeWave FGR2 series,
or equivalent, radio, an antenna, “wiring and other components for a complete spread
spectrum radio communication system to the existing wells,” and “a Yagi style
4
directional antennae [sic] mounted on the pump station building to communicate
with the existing well antennae”; (3) an autodialer alarm; and (4) audible and visual
alarms on the exterior of the pump station.
Finally, in Addendum No. 5 to the bid documents, Carthel instructed the
bidders to “add another FreeWave FGR2 radio receiver/transmitter to receive signals
from the pump station to start and stop the wells.” The radio was “to be installed by
the Contractor at the existing Weinert well field” to an existing antenna.
Dowtech and L. Howard Construction, Inc. submitted bids on the project. On
July 10, 2015, MGM Controls agreed to do the “NCTMWA SCADA work” for
$15,000. Both Dowtech’s and L. Howard’s bids were adjusted to reflect the
reduction in the NCTMWA controls and communication allowance as well as the
removal of certain line items related to improvements to the restroom at the pump
station. Dowtech’s adjusted bid was $309,247.75, and L. Howard’s adjusted bid
was $341,812.83. Over $34,500 of the discrepancy between the two bids was in the
line item for control systems. Dowtech bid $5,220 for the control systems line item
while L. Howard bid $39,750. The City awarded the contract to Dowtech on July 16,
2015.
At a pre-construction meeting on August 21, 2015, the parties discussed that
Dowtech’s bid exceeded the amount of the grants that the City had received. The
City informed Dowtech that, in order to decrease the amount of the contract, the City
intended to issue a change order that reduced the size of the pump house. At the pre-
construction meeting, Dowtech did not object to the reduced contract amount.
Dowtech and the City executed the contract on September 30, 2015. On
October 29, 2015, Carthel certified to the Texas Water Development Board that the
City had sufficient funds to pay the contract price of $309,247.75. In November
2015, Carthel issued Change Order No. 1 that reduced the size of the pump house

5
and lowered the contract price to $293,751.35. Although the change order contained
an acceptance block for Dowtech, Dowtech did not sign Change Order No. 1.
On January 12, 2016, Clint Carlile, Dowtech’s foreman, sent a request for
information to Carthel about the valve in the NCTMWA line. Carlile specifically
asked if the valve was “motor controlled” and noted that, if the valve was “motor
controlled,” he needed specifications for the valve. Carlile also asked if the valve
was “included in the NCTMWA line item.” In an e-mail on January 20, 2016,
Carlile noted that he had not received a response to the request for information. On
January 25, 2016, Carlile informed Carthel that, because he had not received a
response to the request for information, he had released the order for a gate valve
that was not motor operated.
Dowtech submitted pay requests as it performed work on the contract. Carthel
was required to approve the pay requests and then submit the requests to the funding
agencies. Dowtech did not receive regular payments and, at some point, threatened
to stop work on the project. From January 19, 2016, through September 2, 2016, the
City issued four checks to Dowtech in a total amount of $233,872.28.
On May 3, 2016, Carthel issued Change Order No. 2 that required Dowtech
to move a meter vault. The cost for this work was $2,052.50. Dowtech did not sign
Change Order No. 2.
Carthel inspected the project after Dowtech indicated that it had completed its
work. Carthel prepared a “punch list” of items that had not been completed. The
items included the installation of (1) a motor operated valve on the NCTMWA
supply line, (2) a radio communication system between the pump station and the
well field, (3) the SCADA system to signal the wells to activate and deactivate, (4) a
level indicator for the ground storage tank, (5) an autodialer alarm, and (6) audible
and visible alarms. Carthel also noted that the pump control panel neither indicated

6
the run hours for each pump nor electronically recorded the pump run time and line
pressure.
Dowtech claimed that it had completed all of the work required by the
contract. It asserted that the contract did not require a motor operated valve on the
supply line from the NCTMWA. Dowtech also contended that much of the work
that had not been completed was SCADA work that MGM Controls was required to
perform, that it had not selected MGM Controls to do the work, and that it had no
ability to compel MGM Controls to do the work.
Without completing the work on the punch list, Dowtech submitted a final
pay estimate on September 6, 2016, in the amount of $84,004.37. The City declared
Dowtech to be in default and terminated the contract on September 9, 2016.
Dowtech sued the City for breach of contract and sought to recover both the
contract balance and the charges for the additional work that it had performed. The
City filed counterclaims for breach of contract and breach of warranty and requested
either liquidated damages or the expenses that it had incurred to complete some of
the work and to repair two of the pumps. Both Dowtech and the City requested an
award of attorney’s fees.
The case was tried to the bench. In its final judgment, the trial court found
(1) that MGM Controls was Dowtech’s subcontractor, (2) that the change orders
were signed and valid and that the decrease in the original contract price by the City
was valid, (3) that Dowtech did not complete all work as required under the contract,
(4) that the City terminated Dowtech’s right to complete the work, and (5) that the
City paid Dowtech $233,872.98 of the $293,745.75 contract price. The trial court
ordered the City to pay Dowtech $2,052.50 for the additional work that Dowtech
performed and denied Dowtech’s request for the contract balance and for interest,
the City’s request for damages, and both Dowtech’s and the City’s request for

7
attorney’s fees. Neither Dowtech nor the City requested additional findings of fact
or conclusions of law.
Analysis
In its first issue, Dowtech asserts that the trial court erred when it failed to
award Dowtech the contract balance because (1) Dowtech’s performance under the
contract was excused based on the City’s “multiple breaches,” (2) the City is liable
to Dowtech for the contract price, and (3) alternatively, the City is liable for actual
damages.
A claim that a party is excused from performance under a contract by the other
party’s prior material breach is an affirmative defense. Leonard v. Knight, 551
S.W.3d 905, 910 (Tex. App.—Houston [14th Dist.] 2018, no pet.); Park v. Payne,
381 S.W.3d 615, 618 (Tex. App.—Eastland 2012, no pet.). An affirmative defense
must be pleaded or it is waived. TEX. R. CIV. P. 94; Compass Bank v. MFP Fin.
Servs., Inc., 152 S.W.3d 844, 851 (Tex. App.—Dallas 2005, pet. denied). Dowtech
did not plead the affirmative defense that its performance under the contract was
excused and does not argue that the issue was tried by consent. Therefore, Dowtech
failed to preserve this complaint for appellate review. See TEX. R. CIV. P. 94;
Compass Bank, 152 S.W.3d at 851.
Further, even if preserved, Dowtech’s complaint has no merit. Dowtech had
the burden to prove its affirmative defense that its performance under the contract
was excused by the City’s prior material breach. Purnell Furniture Servs., Inc. v.
Warehouse Rack Co., No. 14-04-00270-CV, 2006 WL 2167229, at *3 (Tex. App.—
Houston [14th Dist.] Aug. 1, 2006, no pet.) (mem. op.); see also Orr v. Broussard,
565 S.W.3d 415, 422 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Dowtech
argues that it met this burden because the evidence established that the City breached
the contract by paying late, by attempting to reduce the price of a non-unit item
contract, by “playing cat and mouse with its position on MGM and the SCADA,”
8
and by failing to respond to the request for information about the motor operated
valve. Dowtech essentially challenges the sufficiency of the evidence to support the
trial court’s failure to find that the City committed a prior material breach that
excused Dowtech’s performance under the contract.
In an appeal from a judgment that was rendered after a bench trial, the trial
court’s findings of fact have the same weight as a jury verdict, and we review the
sufficiency of the evidence to support the findings using the same standards as when
we review a jury’s verdict. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).
When, as in this case, the trial court did not make findings of fact and conclusions
of law on the disputed issue, “we imply all relevant facts necessary to support the
judgment that are supported by evidence.” Moncrief Oil Int’l, Inc. v. OAO Gazprom,
414 S.W.3d 142, 150 (Tex. 2013). We will affirm the trial court’s judgment if it can
be upheld on any legal theory supported by the evidence. Worford v. Stamper, 801
S.W.2d 108, 109 (Tex. 1990) (per curiam); Builders First Source–S. Tex., LP v.
Ortiz, 515 S.W.3d 451, 456 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).
An appellant who attacks the legal sufficiency of an adverse finding on an
issue on which it had the burden of proof “must demonstrate on appeal that the
evidence establishes, as a matter of law, all vital facts in support of the issue.” Dow
Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam) (citing
Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989)). When we consider
a legal sufficiency challenge, we “must first examine the record for evidence that
supports the finding, while ignoring all evidence to the contrary.” Id. (citing Sterner,
767 S.W.2d at 690); see also City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.
2005) (When appellate court considers a no-evidence challenge, it views the
evidence in the light most favorable to the verdict, crediting favorable evidence
when reasonable jurors could do so and disregarding contrary evidence unless
reasonable jurors could not.). Only if there is no evidence to support the finding will
9
we examine the entire record to determine if the contrary proposition is established
as a matter of law. Francis, 46 S.W.3d at 241.
“The ‘test for legal sufficiency must always be whether the evidence at trial
would enable reasonable and fair-minded people to reach the verdict under review.’”
W&T Offshore, Inc. v. Fredieu, No. 18-1134, 2020 WL 3240869, at *9 (Tex. June 5,
2020) (quoting City of Keller, 168 S.W.3d at 827). We must uphold the factfinder’s
verdict if more than a scintilla of evidence supports the judgment. Id. We will
sustain a challenge to the legal sufficiency of the evidence only if (1) there is a
complete lack of evidence of a vital fact, (2) rules of law or evidence bar the court
from giving weight to the only evidence offered to prove a vital fact, (3) there is no
more than a scintilla of evidence offered to prove a vital fact, or (4) the opposite of
the vital fact is conclusively established. Pike v. Tex. EMC Mgmt., LLC, No. 17-
0557, 2020 WL 3405812, at *14 (Tex. June 19, 2020) (citing Volkswagen of Am.,
Inc. v. Ramirez, 159 S.W.3d 897, 903 (Tex. 2004)).
To successfully challenge the factual sufficiency of the evidence to support
an adverse finding on an issue on which it bore the burden of proof at trial, the
appellant must demonstrate that the finding is against the great weight and
preponderance of the evidence. Francis, 46 S.W.3d at 242; Pool v. Ford Motor Co.,
715 S.W.2d 629, 635 (Tex. 1986). We must consider and weigh all of the evidence
and will set aside a verdict only if it is so contrary to the overwhelming weight of
the evidence that it is clearly wrong and unjust. Francis, 46 S.W.3d at 242; Cain v.
Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).
It is the factfinder’s role to evaluate the credibility of the witnesses and
reconcile any inconsistencies or conflicts in the evidence. Anderson v. Durant, 550
S.W.3d 605, 616 (Tex. 2018) (legal sufficiency); Golden Eagle Archery, Inc. v.
Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (factual sufficiency). Generally, the
factfinder may believe or disregard all or any part of the testimony of any witness.
10
Anderson, 550 S.W.3d at 616; Golden Eagle Archery, 116 S.W.3d at 774–75. We
will not substitute our opinions on credibility for those of the factfinder. See
Windrum v. Kareh, 581 S.W.3d 761, 781 (Tex. 2019) (factual sufficiency); City of
Keller, 168 S.W.3d at 816–17 (legal sufficiency).
“[W]hen one party to a contract commits a material breach of that contract,
the other party is discharged or excused from further performance.” Bartush-
Schnitzius Foods Co. v. Cimco Refrigeration, Inc., 518 S.W.3d 432, 436 (Tex. 2017)
(per curiam) (quoting Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195,
196 (Tex. 2004)). “But ‘[a] party who elects to treat a contract as continuing
deprives himself of any excuse for ceasing performance on his own part.’” Long
Trusts v. Griffin, 222 S.W.3d 412, 415 (Tex. 2006) (per curiam) (alteration in
original) (quoting Hanks v. GAB Bus. Servs., Inc., 644 S.W.2d 707, 708 (Tex.
1982)); Man Indus. (India), Ltd. v. Midcontinent Express Pipeline, LLC, 407 S.W.3d
342, 368 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). “[A] nonbreaching
party conclusively chooses to treat the contract as continuing if it seeks to benefit
from the contract after the other party’s material breach.” Man Indus., 407 SW.3d
at 368; see also Henry v. Masson, 333 S.W.3d 825, 841 (Tex. App.—Houston [1st
Dist.] 2010, no pet.).
The uncontroverted evidence demonstrated that Dowtech sought to benefit
from the contract after the City paid late, issued Change Order No. 1, and failed to
respond to the request for information. Specifically, the evidence established
(1) that, even though the City “paid late,” Dowtech accepted the late payments and
continued its work under the contract; (2) that, after the City issued Change Order
No. 1 that reduced the size of the pump house and decreased the price of the contract,
Dowtech not only constructed the pump house but continued its other work under
the contract; and (3) that, after the City failed to respond to Carlile’s request for
information on whether a motor operated valve was required on the NCTMWA
11
supply line, Dowtech ordered a valve and continued its work under the contract.
Because Dowtech chose to treat the contract as continuing after these alleged
breaches by the City, Dowtech’s performance under the contract was not excused.
See Long Trusts, 222 S.W.3d at 415; Man Indus., 407 S.W.3d at 368.
As to Dowtech’s contention that it was excused from performance under the
contract because the City “play[ed] cat and mouse with its position on MGM and the
SCADA,” the evidence reflects that the City included a line item in the bid for
SCADA work by MGM Controls that would allow the NCTMWA to control the
valve on its supply line. The scope of MGM Controls’ work for the “NCTWMA
[sic] controls & communication” did not include work related to the pumps.
In addition to the NCTMWA controls and communications line item, the
original bid form included a line item for “Pumps & controls.” In Addendum No. 4,
Carthel informed the bidders that a line item had been added for “Control Systems”
and that the “Pumps line item” had been modified to remove pump controls. Carthel
also instructed the parties that “Section 13400 – Instrumentation and Control” had
been revised. The revised specification contained detailed information on the pump
control system but did not reference the control system for the valve on the
NCTMWA supply line.
The revised Section 13400 provided that it was the contractor’s responsibility
to install the pump control system. Specifically, the contractor was required to
provide and install (1) a “level indicating transmitter” that would report the ground
storage tank level to the pump control panel; (2) a pressure transmitter that would
report the line pressure to the pump control panel; (3) a pump control panel that
would start a pump at a certain line pressure; that would indicate the pump status,
the line pressure, and the pump run time; that would electronically record the line
pressure and the pump run time; that would shut off all pumps when the high
pressure was reached; that would turn all pumps off or on based on the level in the
12
tank; that would communicate with the Well Communication System to start or stop
the wells based on the water level in the tank; and that had audible and visual alarms
for high or low level in the ground storage tank and for high or low pressure in the
water distribution system; (4) a Well Communication System consisting of radios
and associated equipment that allowed for communication between the well field
and the pump house; (5) an autodialer alarm; and (6) audio and visual alarms on the
exterior of the pump station. There was no evidence that any of this equipment
pertained to the valve in the NCTMWA supply line.
Through Addendum No. 4, the City informed Dowtech that the “Control
Systems” line item was separate from the “NCTMWA” line item and that the
contractor, not MGM Controls, had the responsibility to install the necessary control
systems. The City also provided Dowtech with the specifications for the pump
control system. After Dowtech contended that it had completed all of the work
required by the contract, Carthel prepared a punch list that included the installation
of the necessary equipment for the pump control system. There was no evidence
that the City ever took the position that Dowtech was not responsible for the pump
control system. Therefore, the evidence was legally sufficient to support the trial
court’s implied finding that the City did not breach the contract by “playing cat and
mouse with its position on MGM and the SCADA.”
As to the factual sufficiency of the evidence to support the trial court’s implied
finding, Gerald Downing, the owner of Dowtech, testified that all of the equipment
that was not installed was the responsibility of MGM Controls. However, as
discussed above, the “Control Systems” line item, which applied to the pumps, was
separate from the “NCTMWA” line item that was the subject of MGM Controls’
work. Further, the revised Section 13400 that was attached to Addendum No. 4
provided that the contractor was responsible for the installation of the pump control
system. Carthel reiterated that the pump control system was the contractor’s
13
responsibility when, in Addendum No. 5, he instructed the bidders to add another
radio.
Further, L. Howard, the other bidder on the project, estimated that the
“Control Systems” line item would cost $39,750. L. Howard’s estimate was $34,530
more than Dowtech’s estimate for the same line item. The trial court, therefore,
could reasonably infer that L. Howard included more “control” equipment in its bid
than Dowtech included in its bid. Finally, in June 2016, Dowtech sought a bid from
MGM Controls for the equipment that had not been installed. MGM Controls
provided an estimate for its costs to provide and install the equipment, which
supports an inference that MGM Controls did not include those items in the
NCTMWA line item.
Based on this record, the implied findings by the trial court that the City
informed Dowtech through Addendum No. 4 that it was the responsibility of the
contractor to install the pump control system, that Dowtech neither included the
pump control system equipment in its bid nor installed the pump control system, and
that the City never took the position that Dowtech was not responsible for the pump
control system are not against the great weight and preponderance of the evidence.
Therefore, the evidence was factually sufficient to support the trial court’s implied
finding that the City did not breach the contract by “playing cat and mouse with its
position on MGM and the SCADA.”
In its summary of the argument for its first issue, Dowtech also asserts that
the trial court erred when it denied Dowtech’s claim for breach of contract based on
the findings that MGM Controls was Dowtech’s subcontractor and that Dowtech did
not complete all work required under the contract. However, in its first issue,
Dowtech did not substantively argue any error by the trial court when it made either
of these findings. Therefore, Dowtech waived any challenges to these findings on
appeal. See TEX. R. APP. P. 38.1; see also St. John Missionary Baptist Church v.
14
Flakes, 595 S.W.3d 211, 215 (Tex. 2020) (noting that court of appeals has authority
to deem an unbriefed point waived).
Even if preserved, Dowtech’s position is unpersuasive. As set out above,
there was both legally and factually sufficient evidence that Dowtech was required
by the contract to install the pump control system and that Dowtech failed to perform
this work. Therefore, the trial court did not err when it denied Dowtech’s request
for the contract balance based on a finding that Dowtech did not complete all work
as required by the contract. Accordingly, we need not address Dowtech’s complaint
that the trial court erred when it denied Dowtech’s request for the contract balance
based on the finding that MGM Controls was Dowtech’s subcontractor. See TEX. R.
APP. P. 47.1.
Finally, in a footnote, Dowtech argues, “Inexplicably, the trial Court denied
interest even though it found Dowtech to be entitled to $2052.50 for unpaid
additional work. Though small, this failure to award interest is revers[i]ble error.”
Generally, to preserve a complaint for appellate review, the party must present the
complaint to the trial court by timely request, objection, or motion. TEX. R.
APP. P. 33.1(a). Dowtech did not file a motion for new trial or otherwise object to
the trial court’s failure to award prejudgment interest. Therefore, Dowtech failed to
preserve this issue for our review. See id.; Allright, Inc. v. Pearson, 735 S.W.2d
240, 240 (Tex. 1987) (per curiam) (holding that, because the plaintiff did not
complain to the trial court of its failure to award prejudgment interest and did not
assign a point of error on appeal to the issue, she failed to preserve complaint for
appellate review); JSC Nizhnedneprovsky Tube Rolling Plant v. United Res., LP,
No. 13-15-00151-CV, 2016 WL 8921926, at *12 (Tex. App.—Corpus Christi–
Edinburgh Dec. 21, 2016, no pet.) (mem. op.).

15
 On this record, even if Dowtech preserved its complaint that its performance
under the contract was excused, the trial court did not err when it denied Dowtech’s
request to recover the contract balance. Because Dowtech failed to establish that it
was entitled to recover the contract balance, we need not address Dowtech’s
remaining complaints in its first issue as to the amount of damages it should recover
on the claim. See TEX. R. APP. P. 47.1. We overrule Dowtech’s first issue.
In its second issue, Dowtech contends that the trial court erred when it found
that Change Order No. 1 was valid and that the price of the contract was
$293,745.75. This issue is relevant only to the amount of damages that Dowtech
would be entitled to recover if it had prevailed on its claim for the contract balance.
Because we have held that the trial court did not err when it determined that Dowtech
was not entitled to recover the contract balance, we need not address this issue. See
id.
In its third issue, Dowtech argues that the trial court erred when it failed to
award attorney’s fees in the amount of $65,000 to Dowtech. The parties stipulated
that attorney’s fees in the amount of $65,000 were reasonable and necessary.2
We review a trial court’s decision to award attorney’s fees for an abuse of
discretion. Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 850 (Tex.
2018). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or
without regard to guiding legal principles. Bocquet v. Herring, 972 S.W.2d 19, 21
(Tex. 1998).
To be entitled to an award of attorney’s fees from the opposing party, a party
must prove that the recovery of attorney’s fees is legally authorized and that the

2
The parties presented no evidence in support of the stipulation that attorney’s fees in the amount
of $65,000 were reasonable and necessary, and the record reflects that the stipulated amount included
appellate attorney’s fees that were not contingent on a party’s success on appeal. Because we need not
determine whether the fees were reasonable and necessary in order to address Dowtech’s complaints, we
express no opinion on whether attorney’s fees in the amount of $65,000 were reasonable or necessary.
16
requested attorney’s fees are reasonable and necessary for the legal representation.
Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 487 (Tex.
2019). On both its claim for the contract balance and its claim based on the
additional work, Dowtech sought an award of attorney’s fees pursuant to
Section 271.153(a)(3) of the Texas Local Government Code. Section 271.153(a)(3)
provides that an award of money in an adjudication brought against a local
governmental entity for breach of contract “is limited to,” among other things,
“reasonable and necessary attorney’s fees that are equitable and just.” TEX. LOC.
GOV’T CODE ANN. § 271.153(a)(3) (West 2016).
“Matters of equity are addressed to the trial court’s discretion.” Bocquet, 972
S.W.2d at 21. The trial court has discretion to “conclude that it is not equitable or
just to award even reasonable and necessary fees.” Id.; see also Bailey v. Smith, 581
S.W.3d 374, 398 (Tex. App.—Austin 2019, pet. filed). The question of whether a
fee award would be equitable and just is “a matter of fairness in light of all the
circumstances.” Ridge Oil Co. v. Guinn Invs., Inc., 148 S.W.3d 143, 162 (Tex.
2004). “The trial court must decide whether it would be just and equitable to award”
the fees. Id. at 163. Whether an award of attorney’s fees is equitable and just is a
question of law. Bocquet, 972 S.W.2d at 21.
Dowtech asserts that the trial court erred when it failed to award to Dowtech
the reasonable and necessary fees stipulated to by the parties because “Dowtech was
the prevailing party. Not only did Dowtech obtain damages, but it defeated a
$190,000.00 counterclaim.” However, although the City was not awarded damages
on its counterclaims, Dowtech was not awarded damages on its claim to recover the
contract balance. Rather, Dowtech recovered damages of $2,052.50 based only on
its claim that the City had not paid for the additional work. The trial court had
discretion, in light of all the circumstances, to determine that it was not “equitable

17
and just” to award Dowtech attorney’s fees in the amount of $65,000.3 See Ridge
Oil, 148 S.W.3d at 162; Bocquet, 972 S.W.2d at 21. Because there is no indication
in the record that the trial court’s decision was arbitrary or unreasonable, we will not
reverse the trial court’s judgment. See Ridge Oil, 148 S.W.3d at 163. We overrule
Dowtech’s third issue.
This Court’s Ruling
We affirm the trial court’s judgment.

KEITH STRETCHER
JUSTICE

September 25, 2020
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.4

Willson, J., not participating.

3
Because Dowtech argues only that the trial court should have awarded attorney’s fees in the
amount of $65,000, we do not address whether the trial court erred when it failed to award any attorney’s
fees or whether an award of a different amount of fees would be equitable and just.
4
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

18