Affirmed and Opinion Filed October 14, 2014
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-00941-CV
CLASSIC SUPEROOF LLC, Appellant V. DONNA K. BEAN, Appellee
On Appeal from the County Court at Law No. 3 Collin County, Texas Trial Court Cause No. 3-1546-2010
MEMORANDUM OPINION Before Justices Bridges, Francis, and Lang-Miers Opinion by Justice Bridges This is an appeal from a bench trial in which the trial court found in favor of appellee
Donna K. Bean on her contract and DTPA claims against appellant Classic Superoof LLC.
Classic raises seven issues on appeal: (1) the evidence is legally and factually insufficient to
support the trial court’s findings of fact and conclusions of law to support liability under Bean’s
contract and DTPA causes of action; (2) the trial court abused its discretion by admitting a report
over Classic’s hearsay objection because the report was made in anticipation of litigation; (3) if
the trial court’s finding of liability hinged on incomplete flashing work, then the evidence is
legally and factually insufficient to support damages; (4) the trial court erred by awarding
$29,000 in damages because Bean failed to show the cost to repair the roof was reasonable and
necessary; (5) the trial court erred by excluding the testimony of Classic’s expert; (6) the trial court erred by awarding Bean $100,000 in attorneys’ fees because she failed to establish
damages; and (7) the trial court erred in awarding attorneys’ fees because Bean failed to present
sufficient evidence to support the award. We affirm the trial court’s judgment.
Background
During the process of building her home, Bean searched the internet for information
about metal roofs. Metal Roof Alliance’s website provided her with the ability to reach out to
metal roof contractors in her area. Stanley Keith Lyles, the president of Classic, received an
email with Bean’s information and responded via email to her request. He provided basic
information about Classic’s metal roof services. She also visited Classic’s website, at Lyles’s
suggestion, and looked at previous roofs installed by Classic. She thought the work “was
beautiful.” Based on language from the website that Classic’s products “are more durable, more
energy efficient, longer lasting, and more beautiful,” she thought “[Classic] would do a very
good job.”
After Lyles contacted Bean, they talked several times on the phone before setting up a
meeting. When he came to her home, they discussed several roofing material options and color
choices. She asked about a white roof, and Lyles told her a white roof would show dirt sooner
than other types of colors. Lyle also explained a painted finish would cost more than an
unpainted finish.
Lyles brought material samples to show Bean. He described galvalume, which is a
coating that protects steel from the elements, and she was impressed with its sturdiness. She
liked the stainless look but was concerned it might look like barn metal after a period of time,
–2– “and that’s why I chose the galvalume plus.”1 She believed that based on their conversation,
Lyles understood the look of the roof was important to her.
The parties entered into a $40,000 contract on December 21, 2009 for the installation of a
galvalume plus roof. Bean wrote a check for $9,000. She later wrote another check for $20,000.
Roof installation began in early January. Luis Hevert and a crew of six to eight people
installed the roof. The roof installation took longer than anticipated because of rain. The rain
also caused mud accumulation around the home and despite the crew’s best efforts, some mud
prints were left on the roof.
After installation, Bean immediately noticed a problem with the roof’s appearance. Lyles
said it was the nature of a metal roof and “it,” which he thought was mud, would wash off.
Hevert came out twice in February and March to try and clean the mud, but to no avail.
Lyles later referred to the markings as handling tracks left by handprints or footprints
during installation. The appearance of the markings varied depending on lighting conditions.
Lyles told Bean these “stains” would become less visible over time, but he also testified, “There
is probably a few more” scuff marks than he would normally expect on this type of roof.
Bean did not sign the certificate of completion after installation of the roof and objected
immediately to the roof as “unacceptable.” Lyles admitted he did not ask her to sign the
certificate of completion because he knew there was a problem with the roof. Bean said Lyles
offered to replace her roof in March. He repeatedly admitted something was wrong with the roof
and said he had seen thousands of roofs but never seen one “do this.”
When cleaning did not remove the stains, Lyles told Bean perhaps something was wrong
with the acrylic coating. Lyles suspected it might be a manufacturing defect so he contacted
1 Galvalume was described as “very oily” and extremely sensitive to stains when touched or walked on. Acrylume, a plastic coating, was developed to serve as a coating for galvalume to help cut down on some of the abrasions and staining that could occur. Galvalume with an acrylume coating is referred to as galvalume plus.
–3– Sheffield Metal International, the supplier that provided Classic with the material. Sheffield
Metal, in turn, contacted U.S. Steel Corporation, the manufacturer of the galvalume plus coating
from which the roofing panels were made.
In May of 2010, approximately four months after installation, David Head, a
metallurgical engineer with U.S. Steel, went to Bean’s home to inspect the roof. Mike Blake
from Sheffield Metals was also present. Head took pictures, inspected the roof from a ladder,
and requested samples from areas that were “representative of the concern that we observed.”
During Head’s visual inspection, he observed what appeared to be scuffs or scratches in
random locations across the roof, specifically near seam edges and the “roof cap.” The scuffs
and scratches became more apparent as lighting conditions changed. His initial impression of
the roof was that it did not look the way it should and further evaluation through sampling was
necessary. He estimated that seventy-five percent of the roof’s panels were effected. Head
testified handprints and footprints are different from scuffs on a roof’s surface. A handprint or
footprint on bare galvalume that has been “oiled” results in a stain on the roof’s surface, whereas
a scuff is a mechanical deformation of the surface.
After testing the samples, U.S. Steel produced a report stating the galvalume coating was
mechanically deformed and damaged in the scuff mark areas. However, the testing revealed the
damage had not penetrated through the galvalume to the steel substrate, which would result in
almost immediate rusting. Despite the absence of rust, Head did not believe the damage was
purely cosmetic. Rather, he believed “there is a possibility that the long-term service life of this
galvalume was minimized or potentially minimized by the damage that had occurred.” Simply
because rust had not occurred yet, did not mean the roof was not damaged.
Head admitted his primary purpose of evaluating the roof was to determine whether a
problem existed with U.S. Steel’s product (he concluded there was no manufacturing defect), but
–4– that was not his only purpose. His goal was to determine the problem, if any, and find a solution.
His ultimate opinion was that the galvalume coating on the roof was damaged during installation,
the damage was beyond cosmetic, and if rust appeared in the damaged areas, US Steel would
void its warranty.
Bean sent Classic a demand letter on May 21, 2010. She gave Classic until May 31, 2010
to respond. After receiving Bean’s demand letter, Lyles offered to remove and replace those
portions of the roof that Bean thought were stained. He also offered to pay her $1,000 for
attorneys’ fees and expenses. Bean rejected the offer. He then offered to walk away and forgive
the $11,000 she owed under the contract, but she also rejected this offer. She sued on June 11,
2010 for breach of contract and various DTPA violations.
During trial, Bean testified Classic maintained the problematic appearance of the roof
was a manufacturing defect “quite a long time . . . up until the time that they decided to say there
is just nothing wrong with the roof at all, no damage.” She did not feel the contract was honored
because Classic did not deliver what they promised. While she acknowledged Classic provided a
“good sturdy roof,” she argued “it’s not more beautiful” or what the parties agreed to in the
contract.
At the conclusion of the bench trial, the trial court awarded $29,000 in damages for
breach of contract and DTPA violations and $100,000 in attorneys’ fees. The trial court entered
findings of facts and conclusions of law. Classic timely appealed the final judgment.
Breach of Contract
In its first issue, Classic argues the evidence is legally and factually insufficient to
support the trial court’s conclusion that it breached its contract with Bean based on the aesthetic
appearance of the roof or because the roof was damaged. Bean argues the aesthetic appearance
–5– of the roof was an implied material term of the contract and even if it was not, the evidence
supports the trial court’s conclusion the roof was damaged.
Findings of fact in a nonjury trial have the same force and dignity as a jury’s verdict and
may be reviewed for legal and factual sufficiency under the same standards. Ortiz v. Jones, 917
S.W.2d 770, 772 (Tex. 1996). In evaluating the legal sufficiency of the evidence to support an
adverse finding on an issue the challenging party did not have the burden of proof, we must
credit favorable evidence if reasonable jurors could and disregard contrary evidence unless
reasonable jurors could not. Shaw v. Cnty. of Dallas, 251 S.W.3d 165, 169 (Tex. App.—Dallas
2008, pet. denied). A legal sufficiency challenge will be sustained when (1) there is 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 scintilla, or (4) the evidence conclusively establishes the opposite of
the vital fact. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Anything
more than a scintilla of evidence is legally sufficient to support a challenged finding. Shaw, 251
S.W.3d at 169
When a party is attacking the factual sufficiency of an adverse finding on an issue for
which it did not have the burden of proof, the attacking party must demonstrate that there is
insufficient evidence to support the adverse finding. Dallas Cnty. v. Holmes, 62 S.W.3d 326,
329 (Tex. App.—Dallas 2001, no pet.). In reviewing a factual sufficiency issue, we consider all
the evidence supporting and contradicting the finding. Id. We will set aside a finding for lack of
factual sufficiency only if it is so contrary to the overwhelming weight of the evidence to be
clearly wrong and unjust. Shaw, 251 S.W.3d at 169. We review a trial court’s legal conclusions
de novo. Id. We evaluate those conclusions independently to determine whether the trial court
correctly drew the conclusion from the fact. Id.
–6– Additionally, in a nonjury trial, the trial court is the sole judge of the credibility of the
witnesses and the testimony’s weight. Id. The trial court may believe one witness and disbelieve
others and may resolve inconsistencies in a witness’s testimony. McGalliard v. Kuhlmann, 722
S.W.2d 694, 697 (Tex. 1986).
The elements of a contract are an offer, an acceptance, a meeting of the minds, each
party’s consent to the terms, and an execution and delivery of the contract with the intent it be
mutual and binding. Plotkin v. Joekel, 304 S.W.3d 455, 476 (Tex. App.—Houston [1st Dist.]
2009, pet. denied). Classic argues if Bean’s breach of contract claim was based upon the
installation of a defective roofing system, then Bean failed to produce more than a scintilla of
evidence because any future roof damage was nothing more than a “theoretical possibility.”
Classic focuses primarily on testimony from Head, the metallurgical engineer with U.S. Steel.
When Head visually examined the roof, he estimated seventy-five percent of the panels
were effected by markings, and he considered this “significant damage in most of the roof area.”
The tested roof samples revealed that the scuff marks were caused by mechanical abrasions
“possibly introduced during the roll forming or the installation process.” Nothing in the report
stated that the mechanical abrasions would not affect the performance of the roof panels. He
further stated cross sections of a sample showed the galvalume coating was mechanically
deformed and damaged in the scuff mark area. In his expert opinion, the damage to Bean’s roof
was not purely cosmetic.
While Classic argues any damage to the roof is speculative because the evidence shows
the roof had not started to rust, Head specifically testified the absence of rust did not mean the
roof was not damaged. Further, he explained the propensity for the damaged areas to wear down
quicker was greater than those areas undamaged. There was a significant difference between the
galvalume coating in the normal area and the galvalume coating in the scuffed area. He could
–7– not preclude the possibility that the damage to the galvalume coating could extend to the steel
substrate and cause rust. If rust occurred in those areas, the warranty provided by U.S. Steel
would be voided.
While we agree with Classic that uncertainty as to the fact of damages is fatal to recovery
in a breach of contract claim, as detailed above, we do not agree the evidence presented at trial is
uncertain or purely conjectural. See, e.g., McKnight v. Hill & Hill Exterminators, Inc., 689
S.W.2d 206, 207 (Tex. 1985) (noting uncertainty as to the fact of legal damages is fatal to
recovery in a breach of contract claim). Classic focuses only on the fact the roof had not started
to rust. However, just because the roof had not yet become damaged enough to void U.S. Steel’s
warranty does not negate the fact Head testified, based on the report produced after testing the
roof panels, that Bean’s roof was in fact damaged. Further, Head made it clear it was more
likely the damaged areas would wear down quicker, causing more damage. As Bean argued,
“The fact that the roof has not yet rusted does not alter the fact that the Plaintiff did not receive
the roof the Defendant contracted to provide.”
Accordingly, we conclude more than a scintilla of evidence exists to support the trial
court’s finding the roof was damaged and to support its conclusion that the “roof as installed did
not comply with what the Plaintiff contracted to receive and the roof as installed by Classic
Superoof was in breach of the contract between itself and Ms. Bean.” We further conclude the
evidence supporting the trial court’s findings and conclusions are not so contrary to the
overwhelming weight of the evidence to be clearly wrong and unjust. Having concluded the
evidence supports the breach of contract claim because the roof was damaged, we need not
address Classic’s argument that the trial court erred by concluding it breached an implied
aesthetics clause that was not a part of the contract. Classic’s first issue is overruled.
–8– Having determined the trial court’s finding of liability was based on Classic’s breach of
contract, we need not consider Classic’s third issue in which it alternatively argues the evidence
is legally and factually insufficient to support a finding of liability based on incomplete flashing
work. TEX. R. APP. P. 47.1. Moreover, the trial court did not make any findings or conclusions
regarding flashing work. Thus, Classic’s third issue is overruled.
Admission of U.S. Steel Report
In its second issue, Classic argues the trial court abused its discretion by admitting U.S.
Steel’s report because it was made in anticipation of litigation. Bean responds Classic failed to
object; therefore, the issue is waived. Alternatively, Bean contends the report was not made in
anticipation of litigation, but rather falls within the exception to the hearsay rule involving
records of regularly conducted business activity.
Bean’s assertion that the record is “void of any objection” is incorrect. While Classic did
not specifically use the phrase “created in anticipation of litigation” when objecting to the
admission of the report, it did argue the report was based on bias and lacked trustworthiness,
which violated Texas Rule of Evidence 803(6). See TEX. R. EVID. 803(6) (hearsay exception for
records conducted in regular course of business). Classic further argued the U.S. Steel
employees who conducted the tests on the roof samples and wrote the report “had every reason
to conduct their tests in such a way as to exonerate U.S. Steel Corporation and implicate another.
. . .” Thus, Classic’s argument was specific enough to enable the trial court to understand the
precise nature of the error alleged and was presented at such a time as to enable the trial court the
opportunity to cure the alleged error. TEX. R. APP. P. 33.1; Lake v. Premier Transp., 246 S.W.3d
167, 174 (Tex. App.—Tyler 2007, no pet.). As such, Classic preserved its complaint for review.
We shall now address the merits of Classic’s argument to determine if the trial court abused its
discretion by admitting the report. See Dallas Area Rapid Transit v. Morris, 434 S.W.3d 752,
–9– 763 (Tex. App.—Dallas 2014, pet. filed) (admission of evidence reviewed under an abuse of
discretion standard).
Rule 803(6) permits admission of hearsay that is a record of a regularly conducted
business activity. TEX. R. EVID. 803(6). A proper predicate for admission under this rule
requires “a showing that the document was made in the regular course of business, at or near the
time of the acts or conditions sought to be shown, by employees or agents customarily making
such records or customarily transmitting information to be placed in the records and who had
personal knowledge of the acts or conditions recorded.” Thirteen Thousand Six Hundred Five
Dollars in U.S. Currency v. State, No. 05-98-00072-CV, 2000 WL 567053, at *4 (Tex. App.—
Dallas May 4, 2000, no pet.) (not designated for publication). The rule, however, does not apply
if a record was prepared in anticipation of litigation. See Ortega v. Cach, LLC, 396 S.W.3d 622,
630–31 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
Classic argues U.S. Steel removed panels from Bean’s roof for testing only after it knew
Bean was unhappy and after Classic had contacted Sheffield Metals and inquired whether
Classic might have to make a claim against U.S. Steel’s insurance company. Based on the
events leading up to the creation of the report, Classic asserts U.S. Steel knew or should have
known the controversy “might blow up into a lawsuit.”
The record is clear Bean did not request or hire anyone from U.S. Steel to take samples
from her roof, test them, and then create a report. According to Head, someone from Sheffield
Metals contacted him. Head described his job responsibilities as providing technical service to
customers in the field in the use and manufacture of the steel they purchase, calling on customers
in various markets for building applications, and helping customers investigate any problems
with the material or with the process in utilizing the purchased material.
–10– He explained that when he visits a site, he tries not to prejudge but rather gathers
information, makes observations, and makes determinations independently on case conditions.
His objective is to determine if a problem exists with the steel that was supplied and what steps
may be taken to resolve a complaint. When asked if it was his goal to exonerate any party, he
answered, “No, it was not. It was to investigate the cause of the concern.” His objective was to
be straight forward and honest in his investigation to serve the customers, the installers, and U.S.
Steel.
While Classic surmises that U.S. Steel was a stakeholder in the litigation and
“incentivized to make self-serving statements in the report,” at the time Head visited Bean’s
home in May of 2010, there was no lawsuit on file. All Head knew was that Bean was upset
with the installation of her roof, and he testified that his goal was to determine the cause and find
a solution.
Based on the record before us, we conclude the trial court did not abuse its discretion by
admitting the report into evidence as an exception to the hearsay rule because it was not made in
anticipation of litigation. Accordingly, we overrule Classic’s second issue.
Damages
In its fourth issue, Classic argues the trial court erred by awarding $29,000 in remedial
damages because Bean failed to show the cost to repair the roof was reasonable and necessary.
Bean responds the trial court properly awarded her actual damages under the contract. We agree
with Bean.
The universal rule for measuring damages for a breach of a contract is just compensation
for the loss or damage actually sustained. Qaddura v. Indo-Eurpoean Foods, Inc., 141 S.W.3d
882, 888 (Tex. App.—Dallas 2004, pet. denied). Thus, the goal is to restore the non-breaching
–11– party to the same economic position in which it would have been had the contract not been
breached. Id.
We first note Classic’s contention that Bean recovered damages on a theory different than
that prayed for in her last live pleading is without merit. While we agree Bean’s last live
pleading requested “the cost of replacing Plaintiff’s roof,” she also requested “actual damages for
breach of contract in the amount of $29,000.”
Next, Classic challenges the damage award under the theory of what a party must prove
to recover remedial damages under a construction contract.2 It argues Bean failed to present any
evidence showing the reasonable and necessary cost to repair or replace her roof. We agree that
in order to recover remedial damages for a breach of contract, a party must present evidence to
support the reasonableness of the remedial damages. See McGinty v. Hennen, 372 S.W.3d 625,
627 (Tex. 2012). We likewise agree Bean did not present any such evidence. Accordingly, we
conclude the trial court did not base its award on remedial damages; therefore, we must
determine if the evidence is sufficient to support the trial court’s actual damages award.
The record is clear the parties entered into a contract in which Bean agreed to pay
$40,000 to Classic for the installation of a roof. Bean paid $29,000 towards the roof; however,
she refused to pay the remaining amount because she was unhappy with the appearance of the
roof and the roof was damaged. Having previously concluded Classic breached the contract,
Bean was entitled to her actual damages in the amount of $29,000, which was the amount that
would return her to the same economic position in which she would have been had Classic not
breached the contract. See Qaddura v, 141 S.W.3d at 888 (discussing compensation for the loss
2 In its reply brief, it raises new arguments regarding reliance damages; however, we will not consider arguments raised for the first time in a reply brief. Brown, 326 S.W.3d at 654 n.2.
–12– actually sustained, which includes restoring the non-breaching party to the same economic
position in which it would have been had the contract not been breached).
In reaching this conclusion, we are mindful of the two measures of damages generally
used for recovery in breach of construction contract cases: remedial damages and difference-in-
value damages. See McGinty, 372 S.W.3d at 627. Nevertheless, the proper measure of damages
must also be determined by the facts of each individual case. See, e.g., Westminster
Falcon/Trinity L.L.P. v. Shin, No. 07-11-0033-CV, 2012 WL 5231851, at *2 n.3 (Tex. App.—
Amarillo Oct. 23, 2012, no pet.) (mem. op.) (concluding remedial and difference-in-value
damage theories did not apply in construction law case when party tried case under a benefit of
the bargain damage theory). Bean “was willing to accept returning to the economic position she
was in prior to the Defendant’s conduct, which was realized with an award of the sums she paid
for the roof.” Thus, under the facts of this case, we conclude the evidence is sufficient to support
the trial court’s actual damage award of $29,000. Classic’s fourth issue is overruled.3
Exclusion of Expert Testimony
In its fifth issue, Classic asserts the trial court abused its discretion by excluding Bill
Williams, an expert on residential real estate sales. Bean responds the trial court properly
excluded Williams because his testimony was irrelevant. We agree with Bean.
“If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify thereto in the form of an opinion
or otherwise.” TEX. R. EVID. 702. We review the trial court’s decision to admit or exclude
expert testimony for an abuse of discretion. Wyndham Int’l, Inc. v. Ace Am. Ins. Co., 186
3 Having concluded Bean established her breach of contract claim under issue one and her contract claim was supported by sufficient evidence of damages under issue four, we need not address Classic’s arguments regarding whether the evidence is sufficient to support the trial court’s findings and conclusions regarding DTPA violations. TEX. R. APP. P. 47.1.
–13– S.W.3d 682, 685 (Tex. App.—Dallas 2006, no pet.). A trial court abuses its discretion when its
decision is arbitrary or unreasonable, or it acts without reference to any guiding rules or
principles. Id.
Here, Classic argued the testimony of Williams was relevant because he could provide
evidence regarding the diminution in value of Bean’s home resulting from the alleged defective
roof. However, as Bean correctly argued, diminution in value of her home was not a proper
measure of calculating damages under these facts. Bean’s damages arose from the failure of
Classic to install the roof agreed upon; not any devaluation of her property based on the roof.
Thus, any testimony he might have provided would not have assisted the trier of fact to
understand or determine any appropriate measure of damages. Because Williams’s testimony
was not relevant, the trial court did not abuse its discretion by excluding him as an expert. See
Fleming v. Kinney, 395 S.W.3d 917, 926 (Tex. App.—Houston [14th Dist.] 2013, no pet.)
(stating an expert’s opinions must be relevant to the issues in the case and based upon a reliable
foundation to be admissible under rule 702). We overrule Classic’s fifth issue.
Attorneys’ Fees
In issues six and seven, Classic challenges the trial court’s award of $100,000 in
attorneys’ fees because Bean failed to establish her damages and failed to present sufficient
evidence to support the award. Bean responds she proved contract damages, which entitled her
to recovery of her attorneys’ fees, and the award was supported by sufficient evidence.
A trial court’s decision to award attorneys’ fees is reviewed for an abuse of discretion,
and the amount awarded is reviewed under a legal sufficiency standard. Aaron Rents, Inc. v.
Travis Cent. Appraisal Dist., 212 S.W.3d 665, 671 (Tex. App.—Austin 2006, no pet.).
To recover attorneys’ fees under section 38.001 of the Texas Civil Practice and Remedies
Code, a plaintiff must (1) prevail on a cause of action for which attorneys’ fees are recoverable
–14– and (2) recover damages. Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d
821, 846 (Tex. App.—Dallas 2014, no pet.). Section 38.001(8) allows recovery of attorneys’
fees from an individual or corporation if the plaintiff prevails on a claim for breach of contract.
TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8) (West 2008); Woodhaven Partners, Ltd., 422
S.W.3d at 846.
We have previously determined the evidence supports Bean’s breach of contact claim
against Classic and the trial court’s damage award. Accordingly, the trial court did not err in
awarding attorneys’ fees. Classic’s sixth issue is overruled.
We now consider whether Bean presented sufficient evidence to support the $100,000
award. Texas law does not require detailed billing or other documentary evidence as a
prerequisite to awarding attorneys’ fees. Woodhaven Partners, Ltd., 422 S.W.3d at 846. “It has
consistently been held that an attorney’s testimony about his experience, the total amount of fees,
and the reasonableness of the fees charged is sufficient to support an award.” In re A.B.P., 291
S.W.3d 91, 99 (Tex. App.—Dallas 2009, pet. denied).
Bean’s attorney testified to his experience, the number of hours he spent on the case, and
his $300 an hour fee. He explained his fee was reasonable based on his years of experience, and
his rate was reasonable compared to other attorneys in Collin County. This testimony was
sufficient to support the attorneys’ fee award. Thus, the trial court did not abuse its discretion by
awarding $100,000 in attorneys’ fees.
In reaching this conclusion, we are unpersuaded by Classic’s argument that Bean was
required to segregate the amount of fees incurred in prosecuting her claims against Classic and
those incurred in defending against Classic’s claims. A recognized exception to the duty to
segregate arises when the causes of action involved in the suit are dependent upon the same set
–15– of facts or circumstances and are intertwined to the point of being inseparable. Tony Gullo
Motors I, L.P. v. Chapa, 212 S.W.3d 299, 312 (Tex. 2006).
During cross-examination, Bean’s counsel testified the defense of the case “melded into
the prosecution of it.” Moreover, when Classic’s attorney testified in support of recovering his
own fees for defending against Bean’s case and prosecuting Classic’s counterclaims, he stated,
“Those two matters are inextricably intertwined, and that any service that might have been
provided in connection with one also related to the other.” Thus, both parties acknowledged that
prosecuting and defending their claims involved the same facts and were intertwined. Classic’s
seventh issue is overruled.
Conclusion
Having overruled all of Classic’s arguments, we affirm the trial court’s judgment.
120941F.P05
/David L. Bridges/ DAVID L. BRIDGES JUSTICE
–16– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
CLASSIC SUPEROOF LLC, Appellant On Appeal from the County Court at Law No. 3, Collin County, Texas No. 05-12-00941-CV V. Trial Court Cause No. 3-1546-2010. Opinion delivered by Justice Bridges. DONNA K. BEAN, Appellee Justices Francis and Lang-Miers participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee Donna K. Bean recover her costs of this appeal from appellant CLASSIC SUPEROOF LLC .
Judgment entered October 14, 2014
–17–