Richard Aaron Tinnell and Laura Tinnell v. Poulson Custom Homes, Inc.

• Court: Court of Appeals of Texas
• Decided: March 6, 2008
• Docket: 09-06-00390-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-06-390 CV

RICHARD AARON TINNELL AND LAURA TINNELL, Appellants

V.

POULSON CUSTOM HOMES, INC., Appellee

On Appeal from the 9th District Court

Montgomery County, Texas

Trial Cause No. 05-09-08014 CV

MEMORANDUM OPINION

This dispute arose from the construction of a home. The homeowners, Richard Aaron Tinnell and Laura Tinnell, sued their contractor, Poulson Custom Homes, Inc., seeking to be reimbursed for carpeting they paid to have installed in their home and to recover damages for allegedly defective work. Poulson denied that it owed the Tinnells for the carpeting or damages and alleged that the Tinnells owed Poulson for extras they ordered during the home's construction and for lumber that Aaron took from the worksite. After a bench trial, the trial court awarded damages to Poulson on its claims and found against the Tinnells on their claims. In addition, the court awarded Poulson interest, court costs, and attorney's fees. The trial court entered findings of fact and conclusions of law in support of its judgment. We affirm.

I. BACKGROUND

After negotiations, Poulson and the Tinnells entered into a written construction agreement for Poulson to construct the Tinnells' new home for $202,541, pursuant to certain building specifications. The agreement contained a clause requiring the Tinnells to order any construction changes or deviations in writing and requiring Poulson to present any increases in the cost of the work to the Tinnells in writing and to obtain their written approval before proceeding with any changes.

Upgrades

During construction, the Tinnells orally requested various extras and upgrades that the trial court found were not part of the written contract, including ones related to: (1) the air conditioning system, (2) master bedroom ceiling, (3) doors in the study, (4) master shower, (5) kitchen cabinets, (6) additional dirt work, (7) appliances, (8) lighting fixtures, (9) additional concrete overages, (10) sheetrock texture and corners, (11) wall paint, and (12) exterior paint. Poulson charged $24,275 for the changes and upgrades. While the parties agree that Poulson made the changes and the upgrades, they disagree about whether, with respect to the claimed extras, the Tinnells were required to pay additional consideration for them. The Tinnells contend they were not required to pay because the parties did not strictly follow the written terms of the contract for the changes.

Currier Carpet

The construction agreement included an $11,000 allowance for tile and flooring. Poulson paid a subcontractor $3,363 for tile work, which left $7,637 of the allowance available for additional tile or flooring. The trial court found that the Tinnells subsequently contracted with and paid Currier Carpet to install additional flooring material in the home. The trial court further found that (1) there was no agreement that Poulson would pay Currier Carpet, and (2) Poulson credited the remaining flooring allowance against the upgrades the Tinnells had received.

Lumber

The trial court found that Aaron took lumber from the jobsite without Poulson's permission. The court further found that (1) Poulson replaced lumber worth $1,847.08 to complete work on the house, and (2) Tinnell took lumber worth $3,155.92 that Poulson could have returned to its lumber supplier for credit. The trial court found the total value of the lumber taken to be $5,003. While Aaron contended he had permission to remove lumber from the site, he does not attack the trial court's findings regarding the value of the lumber in question.

Judgment and Findings of Fact

After a bench trial, the trial court entered its final judgment in Poulson's favor, awarding Poulson $18,995 for upgrades, $5,003 for converted lumber, and $30,000 in attorney's fees, plus costs and interest. The final judgment awarded no relief to the Tinnells on their claims. Subsequently, the Tinnells requested that the trial court file findings of fact and conclusions of law. The court entered fifty-one findings of fact and seventeen conclusions of law in support of its judgment.

II. ISSUES

The Tinnells raise six appellate issues. The first three issues challenge the legal and factual sufficiency of the evidence supporting Poulson's recovery of damages under its claims for breach of contract, quantum meruit, and conversion. In the last three issues, the Tinnells claim that (1) the great weight of the evidence supports their claim that Poulson breached the construction contract, (2) the trial court erred in denying their post-trial motion to amend their pleadings to assert a claim for misappropriation of funds, and (3) the trial court erred in granting Poulson's directed verdict on their deceptive-trade-practices claims.

III. STANDARDS OF REVIEW

In an appeal from a bench trial, the trial court's findings of fact "have the same force and dignity as a jury's verdict upon questions." Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). The trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence to support them by the same standards that are applied in reviewing evidence supporting a jury's answer. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Anderson, 806 S.W.2d at 794. When the trial court's findings are unchallenged by complaint on appeal, they are binding on the appellate court unless the contrary is established as a "matter of law" or there is "no evidence" to support the finding. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); Wade v. Anderson, 602 S.W.2d 347, 349 (Tex. Civ. App.-Beaumont 1980, writ ref'd n.r.e.) ("Unless the trial court's findings are challenged by a point of error on appeal, they are binding upon the appellate court.").

Our review of unchallenged findings is confined to whether the evidence is legally sufficient to support them. See McGalliard, 722 S.W.2d at 696; see also Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (explaining that the "matter of law" legal-sufficiency standard applies when adverse findings are challenged by a party who, for the finding in issue, had the burden of proof); Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983) (explaining that the "no evidence" legal-sufficiency standard applies when an adverse finding is challenged by an appellant who did not have the burden of proof for the finding).

Generally, attacks on the sufficiency of the evidence supporting findings of fact "must be directed at specific findings of fact, rather than at the judgment as a whole." Arrellano v. State Farm Fire & Cas. Co., 191 S.W.3d 852, 855 (Tex. App.-Houston [14th Dist.] 2006, no pet.) (citing Zagorski v. Zagorski, 116 S.W.3d 309, 319 (Tex. App.-Houston [14th Dist.] 2003, pet. denied)); see also 6 Roy W. McDonald & Elaine Grafton Carlson, Texas Civil Practice § 18:12 (2d ed. 1998). Evidence is legally sufficient if it "would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In evaluating the evidence's legal sufficiency, "we credit evidence that supports the verdict if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." Kroger Tex. Ltd. P'ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006) (citing City of Keller, 168 S.W.3d at 827); see Am. Interstate Ins. Co. v. Hinson, 172 S.W.3d 108, 114 (Tex. App.-Beaumont 2005, pet. denied). In addition, the trial court as factfinder determines the credibility of the witnesses and the weight to be given their testimony. McGalliard, 722 S.W.2d at 697; see City of Keller, 168 S.W.3d at 819.

IV. ISSUE ONE

In issue one, the Tinnells assert that the evidence is legally and factually insufficient to show they breached their contract with Poulson. ⁽¹⁾ Poulson responds that sufficient evidence supports the trial court's findings that the Tinnells entered into separate oral contracts with Poulson for upgrades and extras and that the Tinnells breached these oral contracts.

Because the Tinnells do not attack the trial court's specific findings, we review the legal sufficiency of the evidence supporting the unchallenged findings. See McGalliard, 722 S.W.2d at 696. As Poulson had the burden of proof on its breach of contract claim, the unchallenged findings are binding on us unless there is "no evidence" to support them. See McGalliard, 722 S.W.2d at 696; Croucher, 660 S.W.2d at 58.

Under issue one, the Tinnells argue that Poulson had no right to recover for any upgrades because Poulson did not secure their written approval before it performed the additional work. In addition, the Tinnells contend that the upgrades did not constitute extra work under the parties' written agreement.

Poulson, on the other hand, asserts that the Tinnells understood the scope of work that was to be performed under the written agreement and understood they would be required to pay additional consideration for items or services not included in the contract's specifications or design plans. Poulson also asserts that during the home's construction, the Tinnells demanded upgrades and extra work. Poulson asserts that its claims for additional consideration for all extra work were supported by separate oral contracts.

At the Tinnells' request, the trial court filed findings of fact and conclusions of law. ⁽²⁾ Among the trial court's findings were the following: (a) Poulson built the house the Tinnells wanted, including all later-added upgrades; (b) during construction, the Tinnells demanded extras and upgrades not included in the contract; (c) the Tinnells knew if they requested and received items and services not included in the contract, they would have to pay for those items or services; (d) prior to doing any upgrades or extra work, the subcontractors and the Poulson representative informed the Tinnells that they were demanding work in addition to what was provided in the contract and also informed the Tinnells of the additional costs involved; and (e) the Tinnells knowingly accepted the upgrades and extras and promised to pay Poulson for all upgrades and extras. The Tinnells do not specifically challenge these findings.

Testimony at trial showed that Poulson and its subcontractors complied with the Tinnells' oral requests for extras and upgrades. Dennis Gau, an employee of Poulson Homes,

negotiated the construction contract with the Tinnells. At trial, he identified exhibit 16 as the "change order" containing all of the changes and upgrades made to the Tinnells' home. Gau testified that the Tinnells were aware they would have to pay for these changes and that they agreed to do so. Gau also testified that a disagreement about an upgrade for the sheetrock texture caused Poulson to temporarily stop construction on the Tinnells' home. Gau had explained to Laura that the texture she requested would be an upgrade. According to Gau, Aaron wanted the texture upgrade "for free," and the Tinnells threatened to sue if Poulson did not provide the upgrade without additional charge. Gau explained that he told the Tinnells he could not provide "things for free" and Poulson stopped construction. Gau further testified that Aaron subsequently told him to "do the texture the way my wife wants and I'll pay you for it, just put it on a change order." Gau's testimony about the texture upgrade, as well as other extras, supports the trial court's findings that the Tinnells: (1) requested upgrades not included in the contract, (2) knew they would have to pay extra for them, (3) were informed of extra costs by the contractor or subcontractor before the upgrades were provided, and (4) knowingly accepted the upgrades and promised to pay for them.

Kevin Bryan, vice president of Air Champion, which was a Poulson subcontractor for the Tinnell house, testified about Aaron's requested changes to the air-conditioning system. Bryan explained to Aaron that the change he requested to the air-conditioner damper system was an upgrade and would cost additional money. Aaron told Bryan to "go ahead" with the change. Thus, Bryan's testimony further supports the trial court's findings related to Poulson's breach of oral contract claims.

Scott Lowe, an employee of Keystone Concrete, testified that he supervised the concrete work at the Tinnell home. Lowe further testified that Aaron Tinnell requested that the driveway be made substantially larger than the one Poulson instructed him to build. Lowe told Aaron that anything over what was allowed in the contract would cost more and that Aaron understood there would be extra charges for the changes he wanted. Lowe's testimony provides additional support for the trial court's findings regarding Poulson's breach of oral contract claims.

After initially denying that the Tinnells requested any changes or upgrades, Aaron Tinnell testified they only requested a single change, one that involved the sheetrock texture. Aaron admitted requesting that change after direct questions from the trial court. ⁽³⁾ While Aaron acknowledged receiving faxes from Poulson stating that the Tinnells were over budget, he testified that he considered any overage to be Poulson's problem. Aaron also testified that he understood the house was a "turnkey" project based on a $202,000 price.

Gau, the Poulson representative, denied that he and the Tinnells ever discussed "capping" the price of the home at $202,000. Gau testified that when going through the contract with the Tinnells, he explained how the allowances would work. Gau stated that he had no doubt the Tinnells understood they would have to pay the costs associated with exceeding a contract allowance.

If based on this evidence, reasonable and fair-minded persons could conclude that the Tinnells breached oral contracts with Poulson, the evidence is legally sufficient. See City of Keller, 168 S.W.3d at 827. When conducting our review, we credit evidence favorable to the verdict if a reasonable factfinder could, and disregard unfavorable evidence unless a reasonable factfinder could not. See Suberu, 216 S.W.3d at 793; Hinson, 172 S.W.3d at 114.

To prevail on a breach of contract claim, a plaintiff must show that: (1) a valid contract exists, (2) the plaintiff performed or tendered performance, (3) the defendant breached the contract, and (4) the breach damaged the plaintiff. Trahan v. Fire Ins. Exch., 179 S.W.3d 669, 674 (Tex. App.-Beaumont 2005, no pet.); Critchfield v. Smith, 151 S.W.3d 225, 233 (Tex. App.-Tyler 2004, pet. denied) (oral contract). Parties form a valid contract "when an offer is made and accepted, when there is a meeting of the minds, and when the terms are sufficiently certain to define the parties' obligations." Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 589 (Tex. App.-Austin 2007, pet. denied) (citing Copeland v. Alsobrook, 3 S.W.3d 598, 604 (Tex. App.-San Antonio 1999, pet. denied)). "The determination of a meeting of the minds, and thus offer and acceptance, is based on the objective standard of what the parties said and how they acted, not on their subjective state of mind." Id.

Poulson relies on Buxani v. Nussbaum, 940 S.W.2d 350 (Tex. App.-San Antonio 1997, no writ), to support its breach of oral contract claim and the trial court's findings in its favor. In Buxani, the owners of a jewelry store had a written agreement with a contractor who was to remodel their store. Id. at 351. Similar to paragraph 6 of the Tinnell contract, the Buxani contract contained a provision that stated: "Any alteration or deviation from above specifications involving extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate." Id. Although the written contract required changes to be in writing, the Buxani Court held the evidence sufficient to show that the owners "assented to the terms of the oral agreement through their conduct; they allowed the items to be installed and the services to be performed without objecting to anything until the time for payment arrived." Id. at 352. The court also observed: "In a contract implied in fact, which is the same as an express contract except for the manner of proof, the element of mutual assent can be inferred from the circumstances of the transaction." Id. The Buxani Court concluded that the evidence supported the existence of an oral contract and affirmed the trial court's judgment because the owners breached the oral contract under which they agreed to pay for the changes they had ordered. Id. at 353.

Disregarding a term of a written contract requiring that extra work be authorized in writing may result in a finding of waiver. Id. at 352. Poulson pled that the Tinnells waived the contract's requirement that change orders be in writing. The trial court did not make any specific findings on waiver. However, when a trial court makes findings of fact on some elements that support its judgment, but omits findings on other grounds, the appellate court presumes the trial court made the omitted findings in support of the judgment when those presumed findings are supported by the evidence at trial. Tex. R. Civ. P. 299; Buxani, 940 S.W.2d at 352.

In this case, the testimony from Gau, Bryan, and Lowe is legally sufficient to support the trial court's unchallenged findings supporting Poulson's breach of oral contract claim. These findings establish that : (1) the Tinnells demanded extras and upgrades not included in the contract, (2) the Tinnells knew they would have to pay for these items or services, (3) prior to doing any upgrades or extra work, the contractor or subcontractors informed the Tinnells that they were demanding work in addition to what was provided in the contract and also informed the Tinnells of the additional costs involved, and (4) the Tinnells knowingly accepted the upgrades and extras and promised to pay Poulson for them. These findings satisfy the necessary elements to show valid oral contracts between the Tinnells and Poulson: offer and acceptance, meeting of the minds, and sufficiently certain definition of the parties' obligations. See Tex. Disposal Sys., 219 S.W.3d at 589.

Moreover, the testimony about the circumstances under which Poulson proceeded with the extra work is sufficient to support the trial court's implied finding that the Tinnells waived the contract's written term requiring change orders to be in writing. There was also testimony that supported the trial court's specific finding that the Tinnells approved the extra work items before the builder proceeded with the changes or revisions. See Buxani, 940 S.W.2d at 352. Gau testified that trial exhibit 16 was a list of the upgrades provided to the Tinnells, that they were aware they had to pay for these upgrades, and that they had agreed to do so. At first, Aaron agreed that items Poulson contended were extra work were actually incorporated into his home but then disputed whether Poulson used eggshell paint in the house. Even Aaron, at one point in his testimony, acknowledged being notified of some of the changes before Poulson's subcontractors performed additional work. While there are conflicts in the testimony between the witnesses on whether Aaron was notified of the eggshell paint upgrade, the trial court determines which of the witnesses to believe and what parts of their testimony are credible. See McGalliard, 722 S.W.2d at 697; see also City of Keller, 168 S.W.3d at 819. Thus, we find the evidence legally sufficient to show that valid oral contracts existed with respect to the changes and upgrades at issue between the Tinnells and Poulson.

We next consider whether the evidence is legally sufficient to support the trial court's unchallenged findings regarding the remaining elements of a breach of contract claim: performance by Poulson, breach by the Tinnells, and damages suffered by Poulson. See Trahan, 179 S.W.3d at 674. The trial court found that Poulson provided the upgrades to the Tinnells' home and that the Tinnells still owed Poulson for the upgrades. These findings are supported by Gau's testimony that all of the upgrades included in trial exhibit 16 were provided to the Tinnells; the exhibit further shows the total amount owed by the Tinnells. The trial court found that Poulson's damages were $18,995. ⁽⁴⁾ The amount of damages also is supported by Gau's testimony and exhibit 16.

In conclusion, we find that a reasonable and fair-minded factfinder could have determined that Poulson should recover on its breach of oral contract theory. See City of Keller, 168 S.W.3d at 827. Thus, we find the evidence legally sufficient to support Poulson's recovery and overrule issue one.

Quantum Meruit

Because the trial court found that the Tinnells entered into oral contracts on the extra work claims, and we have found the evidence sufficient to support Poulson's breach of contract claim, we need not determine whether there is legally and factually sufficient evidence to support Poulson's quantum meruit claim for extras and upgrades. Thus, we do not consider issue two. See Tex. R. App. P. 47.1.

V. ISSUE THREE

In issue three, the Tinnells contend there is no evidence or insufficient evidence to prove that Aaron removed lumber from the jobsite and converted it to his own use. Poulson argues that the evidence clearly shows that Aaron converted Poulson's lumber.

At trial, the court heard testimony about the alleged conversion. Aaron admitted using some wood to build a workbench in his garage but initially testified that he had Gau's permission to do so. During his cross-examination, however, Aaron agreed that he "assumed" when he was giving his deposition that he had Gau's permission to use the wood rather than conveying that Gau explicitly gave him permission to do so. At trial, Aaron also admitted loading lumber onto a trailer but contended he did not take the lumber from the jobsite. Rather, according to Aaron, the lumber "ended up behind the garage or in the garage for the work bench that [he] built."

On Poulson's behalf, Gau testified that he never gave Aaron permission to take lumber from the worksite. Gau further testified that on the night Aaron took Poulson's lumber, Aaron called him to find out if he planned to inspect the site that evening. Shortly after Aaron called, one of Poulson's subcontractors called Gau and reported that someone was stealing lumber from the worksite. After the subcontractor described the alleged thief's vehicle, Gau recognized it as Aaron's and immediately called him. Aaron confirmed he was taking lumber but contended it was only scrap lumber. Gau further testified that his workmen were unable to do their job on the following day because the lumber they needed was gone. According to Gau, he purchased additional cornice materials in the amount of $1,847.08 because Aaron removed the lumber from the site. Gau also said that Poulson was unable to return over $3,000 of unused lumber to its supplier because Aaron also took that lumber from the site. Gau testified that Poulson's supplier would have credited Poulson's account for the returned lumber and that Poulson lost a total of $5,003, which Gau attributed to Aaron's removal of lumber from the site.

The Tinnells do not specifically attack any of the trial court's findings of fact that relate to Poulson's conversion claim. See Arrellano, 191 S.W.3d at 855. Because Poulson had the burden of proof on its conversion claim and the Tinnells do not specifically challenge the trial court's findings, the trial court's unchallenged findings are binding on appeal unless no evidence supports them. See McGalliard, 722 S.W.2d at 696; Croucher, 660 S.W.2d at 58.

"Conversion is defined as the wrongful exercise of dominion and control over another's property in denial of or inconsistent with [the owner's] rights." Green Intern., Inc. v. Solis, 951 S.W.2d 384, 391 (Tex. 1997). The trial court found that: (a) Aaron took or used lumber from the jobsite; (b) Gau never gave Aaron permission to use or take any lumber from the jobsite; (c) Aaron testified that there were "hundreds" and "thousands" of pieces of lumber measuring 8, 10, and 12 feet in length, and that he took such pieces from the jobsite; (d) because so much lumber was taken, the cornice work on the house was delayed; (e) the value of the stolen lumber that Poulson had to replace was $1,847.08; (f) Aaron took, without permission, an additional $3,155.92 in lumber that Poulson would have returned to the lumber supplier for credit; and, (g) the total value of lumber taken by Aaron without permission was $5,003.

The trial court's findings, if supported by legally sufficient evidence, establish that Aaron wrongfully exercised control over Poulson's property in a manner that was inconsistent with Poulson's rights. See Solis, 951 S.W.2d at 391; McGalliard, 722 S.W.2d at 696. We find that Gau's testimony provides legally sufficient evidence to support the trial court's findings because his testimony would enable reasonable and fair-minded people to reach the verdict under review. See City of Keller, 168 S.W.3d at 827. Further, the court may disregard Aaron's contrary testimony because reasonable jurors could do so. See Suberu, 216 S.W.3d at 793. While a factfinder is generally free to make credibility assessments about a witness's testimony even if it is free from inconsistency, it is certainly within the factfinder's discretion to disregard a witness's testimony that is inconsistent with the witness's prior testimony under oath. See McGalliard, 722 S.W.2d at 697; see also City of Keller, 168 S.W.3d at 819. Aaron's testimony about whether he had Gau's permission to take the lumber was inconsistent. Because the trial court determines credibility of testimony and there was sufficient evidence supporting the required elements of conversion, we overrule issue three.

VI. ISSUE FOUR

In issue four, the Tinnells challenge the factual sufficiency of the evidence supporting the trial court's finding that Poulson did not breach the construction contract. The Tinnells claim Poulson breached the contract by failing to pay Currier Carpet for the flooring and by allegedly charging the Tinnells for a septic system installed at another location. Because these are claims for which the Tinnells had the burden of proof, we determine if the evidence is factually sufficient by applying the "great weight and preponderance" standard. See Francis, 46 S.W.3d at 242.

The trial court found there was no agreement that Poulson would pay Mike Currier or Currier Carpet for the installation of flooring at the Tinnells' home. Three witnesses presented testimony on this issue-Gau, the Poulson representative; Aaron; and Mike Currier, the owner of Currier Carpet.

The testimony of Gau and Aaron is contradictory. Gau testified that he never contracted with Currier Carpet to install flooring in the Tinnells' home. Aaron, however, testified that Gau hired Currier to install the carpet and wood floors.

The testimony of Currier, the owner of Currier Carpet, likewise failed to show that Currier had a contract with Poulson. Currier testified that his friend Aaron asked him to "do the flooring" in the Tinnells' new home. Currier also testified that after he talked to Gau, Currier gave his bid to Aaron. According to Currier, Gau never negotiated the price with Currier. Instead, Aaron told Currier that Gau thought the price was too high. Currier also testified that he did not know if Poulson ever agreed to his proposal. Currier further conceded that neither Poulson nor Gau ever signed his bid proposal to indicate that Poulson accepted his proposal. Currier testified that when he was out of town, he called the Tinnells, rather than Poulson, to arrange for an advance for Currier's flooring work. After the work was completed, Currier sent a bill to Poulson and sent a copy of the bill to Aaron. When Poulson did not pay Currier's bill, he filed a lien on the home, and Aaron ultimately paid Currier a total of $7,800.

At best, the testimony is conflicting as to whether Poulson agreed to pay Currier for flooring installation. The trial court may not have believed Aaron's testimony but may have believed Gau's, and, as factfinder, was free to do so. See City of Keller, 168 S.W.3d at 827. The additional evidence offered by Currier does not show that Poulson agreed to pay for Currier's flooring. Thus, the Tinnells have failed to show that the trial court's "no agreement" finding is against the great weight and preponderance of the evidence. See Francis, 46 S.W.3d at 242.

Septic System

The trial court did not make specific fact findings regarding the Tinnells' contention that they were charged for two septic systems, rather than one. The court, however, concluded that Poulson did not breach the contract and that Poulson was not liable to the Tinnells under any of their claims.

The Tinnells contend that Gau paid for both theirs and his mother's septic system with a check drawn from funds for the Tinnells' project. As support, the Tinnells refer to Gau's testimony on cross-examination as follows:

[Appellants' counsel]: And check stub number 2056 is a check for 8,700 dollars paid to Bullseye Construction. Says "septic at Tinnells' and mom's." Is that correct?

[Gau]: That's correct.

[Appellants' counsel]: All right. So, you did not segregate the funds that were going to pay for the expenses to build the Tinnells' house and keep them separate from the funds that were going to build your mother's house, did you?

[Gau]: No. Like I said, if that was taken out of the Tinnell home, it would have been taken out of the profit.

However, Gau also testified that his mother's septic system was not billed to the Tinnells. He explained that his "septic guy did two septic systems for me in that particular pay period and I put both of them on one invoice, which I paid for with my money, out of my checking account."

When the trial court has not made a specific finding pertinent to an issue, we presume it made fact findings in support of its judgment. See Tex. R. Civ. P. 299; Buxani, 940 S.W.2d at 352. Here, we presume the court found no breach of contract occurred regarding the Tinnells' claim that they were charged for two septic systems.

Gau testified that he did not bill the Tinnells for the extra septic system. While the funds for the Tinnells' home were placed in Poulson's construction account, the record is not clear whether the construction account contained only funds for the construction of the Tinnells' home. Further, in their arguments under issue four, the Tinnells fail to provide us with record cites to any evidence that contradicts Gau's testimony or that proves that their funds were used to pay for the other septic system, and we did not find any in our review of the record. Therefore, we find that the evidence presented at trial regarding the septic system does not show that the trial court's presumed finding on that issue is against the great weight and preponderance of the evidence. See Francis, 46 S.W.3d at 242.

Because the evidence is factually sufficient to support the trial court's findings and presumed findings regarding the Tinnells' claim that Poulson breached the construction contract, we overrule issue four.

VII. ISSUE FIVE

In issue five, the Tinnells contend the trial court abused its discretion when it denied their post-trial motion to amend their original petition to include a cause of action for misappropriation of trust funds. The Tinnells rely on section 162.003 of the Texas Property Code as the basis for their misappropriation claim. See Tex. Prop. Code Ann. § 162.003 (Vernon 2007). The Tinnells contend that under the Property Code, Poulson owed them a statutory duty that it breached by paying for more than one septic system from its construction account.

Relying on Rule 67 of the Texas Rules of Civil Procedure, the Tinnells argue that the parties tried the issue by consent. See Tex. R. Civ. P. 67. Rule 67 provides, in part, that if "issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Id. The Tinnells maintain the trial court should have awarded them damages in the amount of $4,350, plus interest and attorney's fees.

"The rule of trial by implied consent is only intended to apply to exceptional cases where it clearly appears from the record the parties tried the unpleaded issue by consent. It is a rule that should be applied with care and not in a doubtful situation." White v. Sullins, 917 S.W.2d 158, 160-61 (Tex. App.-Beaumont 1996, writ denied) (citations omitted). Further, if "evidence relevant to both a pleaded and an unpleaded issue has been admitted without objection, the doctrine of trial by consent should not be applied unless clearly warranted." Compass Bank v. MFP Fin. Servs., Inc., 152 S.W.3d 844, 854 (Tex. App.-Dallas 2005, pet. denied); see Johnston v. McKinney Am., Inc., 9 S.W.3d 271, 281 (Tex. App.- Houston [14th Dist.] 1999, pet. denied).

The Tinnells cite Gau's explanation about the receipt of one invoice for two septic systems and Gau's explanation about how he paid for both out of Poulson's construction account to support their contention that the cause was tried by consent. However, Gau's explanation about the septic charges was also relevant to the Tinnells' breach of contract claim, in which they asserted that Gau breached the contract by billing them for two septic systems instead of one.

Thus, because the evidence cited by the Tinnells was relevant on an issue they pled, the record as a whole does not show that Poulson should have known that the Tinnells intended to try an issue regarding misappropriation of trust funds. ⁽⁵⁾ Consequently, we cannot say that the trial court abused its discretion in denying the Tinnells' request to allow a trial amendment. See White, 917 S.W.2d at 161. We overrule issue five.

VIII. ISSUE SIX

In issue six, the Tinnells allege that the trial court erred in granting a directed verdict on their Texas Deceptive Trade Practices Act (DTPA) claims. See Tex. Bus. & Com. Code Ann. §§ 17.41-.63 (Vernon 2002 & Supp. 2007). The Tinnells' trial pleadings alleged they were entitled to multiple damages under section 17.50(b)(1) of the DTPA for Poulson's deceptive trade practices that were committed "knowingly" and "intentionally." ⁽⁶⁾

The Tinnells argue that Poulson engaged in deceptive trade practices by representing that it would build the house for $202,541.00 and then seeking to charge the Tinnells for extras. The Tinnells' appellate brief states: "Gau made numerous representations knowing that they were false and deceptive. The first and most obvious one being the representation that the Tinnells['] house would be built for $202,541.00 made both orally and in the two written contracts." (emphasis added). As asserted in the Tinnells' own brief, they are contending that Poulson did not perform its contractual obligations. When a claim's essence is that one party made certain representations that it would perform under the contract and then failed to do so, the claim is not actionable under the DTPA. Crawford v. Ace Sign, Inc., 917 S.W.2d 12, 14-15 (Tex. 1996). Moreover, the contract itself was dependent upon the construction of a home specified in Exhibit A, and the contract provided for written change orders, a procedure that the parties apparently chose not to follow. At trial, however, the Tinnells failed to show that Poulson misrepresented that it would build the home specified in Exhibit A for the agreed price.

The Tinnells next argue that Poulson engaged in false and deceptive representations by presenting three different pricing sheets relating to the cost of items used in construction. Poulson asserts that the Tinnells waived this argument, and we agree.

The Tinnells do not contend they asserted this claim before the trial court or otherwise demonstrate how they properly preserved that claim for appeal. See Tex. R. App. P. 33.1(a); Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993) ("As a rule, a claim, including a constitutional claim, must have been asserted in the trial court in order to be raised on appeal."). Though we are not required to do so, we have searched the record and find nothing that shows the Tinnells preserved this claim. ⁽⁷⁾

They did not include the argument in their petition, did not request a trial amendment to include it, did not mention it during argument of Poulson's motion for directed verdict, and did not raise it in their motion for new trial. We find the Tinnells waived their claim that the various "pricing sheets" constituted a deceptive trade practice.

As a result, the trial court did not err in granting a directed verdict on the Tinnells' DTPA claims. We overrule issue six. Having overruled all of the Tinnells' issues and arguments, we affirm the trial court's judgment.

AFFIRMED.

_______________________________

HOLLIS HORTON

Justice

Submitted on August 7, 2007

Opinion Delivered March 6, 2008

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

1. The Tinnells also contend that any ambiguity in the contract should be construed against Poulson. However, the Tinnells do not contend they preserved this argument for review on appeal. They provide no record references showing they raised this matter before the trial court, and they did not include the argument in their motion for new trial. See Tex. R. App. P. 33.1. Thus, we do not consider this argument. See id.

2. The trial court adopted Poulson's proposed findings of fact and conclusions of law in their entirety.

3.

During direct examination, Aaron Tinnell contended that he and Laura never requested any changes or upgrades. On cross-examination, the trial court revisited Aaron's contention as follows:

[Court]: And it's your position that any changes that were made was [sic] made at his own suggestion and not negotiated between you and the subcontractor. You didn't tell him that you weren't happy with that. You never one time went to him and said, well, look, we don't like this, we need to change this?

[Aaron]: Never.

[Court]: Never?

[Aaron]: We did.

[Court]: You did? How many times did you do that?

[Aaron]: Just on the sheetrock texture.

[Court]: That's the only time? So, all of these other-all of these other changes on here that he's listed is just his voluntary [sic] deciding to do.

[Aaron]: Yes, sir. To my knowledge, that was the only time we had an incident, problem.

4.

The trial court's finding regarding Poulson's damages is part of the court's conclusions of law. We treat this conclusion as a finding of fact. See Ray v. Farmers State Bank of Hart, 576 S.W.2d 607, 608 n.1 (Tex. 1979).

5.

The record is not developed regarding whether the statute in issue requires that the builder have separate account agreements for each of its customers, or whether money for various projects may be commingled in a single construction account. See Tex. Prop. Code Ann. § 162.003 (Vernon 2007). Moreover, pleading the issue of misappropriation of trust funds would have allowed Poulson to address whether homeowners are within the class of people that the legislature intended to protect by the statute. See Murphey v. State, 86 S.W.3d 283, 285 (Tex. App.-Amarillo 2002, no pet.).

6. In part, section 17.50(b)(1) allows for awards of not more than three times the amount of economic damages if the trier of fact finds the defendant knowingly or intentionally committed the deceptive acts.

Tex. Bus. & Com. Code Ann. § 17.50(b)(1) (Vernon Supp. 2007).

7. On appeal, the burden is on appellants to direct the appellate court to evidence in the record supporting their contentions. Hope's Fin. Mgmt. v. Chase Manhattan Mortgage Corp., 172 S.W.3d 105, 108 (Tex. App.-Dallas 2005, pet. denied); see Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 283 (Tex. 1994) (stating "it has never been considered part of an appellate court's duties" to search the record for evidence).