Wesley & Wesley, Inc., D/B/A Integrated Foundation Solutions v. Stephen Klarer, as Independent for Estate of Robert L. Klarer

• Court: Court of Appeals of Texas
• Decided: October 4, 2023
• Docket: 05-22-00660-CV
• Status: Published

Opinion

Affirmed and Opinion Filed October 4, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00660-CV

WESLEY & WESLEY, INC., D/B/A INTEGRATED FOUNDATION SOLUTIONS, Appellant V. STEPHEN KLARER, AS INDEPENDENT EXECUTOR FOR ESTATE OF ROBERT L. KLARER, DECEASED, Appellee

On Appeal from the Probate Court No. 3 Dallas County, Texas Trial Court Cause No. PR-18-00368-3

MEMORANDUM OPINION Before Justices Partida-Kipness, Reichek, and Miskel Opinion by Justice Partida-Kipness Appellant Wesley & Wesley, Inc. d/b/a Integrated Foundation Solutions (IFS)

appeals an adverse judgment following a bench trial. Because legally sufficient

evidence supported the judgment, we affirm. BACKGROUND

In 2015, appellee Stephen Klarer and his siblings decided to repair and

remodel their deceased father’s home1 before putting it on the market. Because there

were cracks in several areas of the house, Klarer hired Crannell, Crannell & Martin

Corporation (CCM), which is a civil engineering firm, to inspect and evaluate the

foundation. CCM provided Klarer with an Initial Engineering Evaluation and

Structural Inspection (the CCM Report) on April 24, 2015. The CCM Report noted

the drainage on the North side (front) of the property was inadequate because it did

not drain properly. In the report, CCM recommended the homeowner “[a]dd gutters

and area drain basins or repair sump

pump” to repair the external drainage

issues. The last page of the CCM Report

included a sketch showing CCM’s

recommendations. The sketch shows

suggested locations for the installation of

sixteen piers around portions of the

foundation and notes the

recommendation for the property owner to “install gutters or add drainage basins or

repair sump pump” in seven locations in the front yard of the home. The seven

1 Klarer’s father passed away on April 15, 2015. Klarer was named Independent Executor of the estate in his father’s will. –2– locations are marked with an “X” inside of a box; four are on the top right of the

sketch and three are on the bottom right. CCM also determined the sump pump

needed to be repaired because it was either not functioning or not functioning

properly. After receiving the CCM Report, Klarer contacted various foundation

repair companies, including IFS, to discuss doing the job. IFS was contracted to

install a drainage system on the three locations on the bottom right of the sketch.

That work is the subject of the underlying proceeding and this appeal.

When Klarer met with Schaun Wesley from IFS at the property to discuss the

project and a potential bid from IFS, he gave Wesley a copy of the CCM Report so

Wesley would understand what work needed to be done. At the end of their meeting,

Wesley told Klarer that IFS also installs drainage systems and asked if Klarer would

like Wesley to include drainage in the estimate. Klarer said yes but told Wesley to

“make it a separate item on the estimate.”

Klarer hired IFS to repair the foundation and install sub-surface drainage in

the three lower right locations recommended by CCM. To address the inadequate

drainage on the upper right of the sketch, Klarer chose to replace the sump pump

rather than add or repair the existing area drain basins because of the sump pump’s

construction and exit point. Specifically, the sump pump exited through a rigid PVC

pipe that “went from those front basins along the side of the house up at the top of

the drawing, and it went back past the house,” and pumped out to the alley. Klarer

testified he chose to replace the sump pump himself because he believed it was an

–3– easier fix for the upper drainage issues when compared to repairing the existing drain

basins or installing new ones. He also wanted to avoid installing gutters because he

thought the house “would look better without gutters.” His understanding of CCM’s

recommendation was that repairing the sump pump would make gutter installation

unnecessary.

The parties’ May 15, 2015 Agreement (the Agreement) included a “work

description” of the tasks IFS would complete. Those tasks included the following:

 “Install (16) Pressed Concrete Repair Piers in locations indicated on their site map,” and

 “IFS can install a solid sub-surface drain along the front of the home as shown - discharging to the street[.]”

The Agreement further stated, “ALL WORK PER CRANNELL ENGINEERING

REPORT DATED 04/22/2015.” The Agreement listed $5,200.00 as the cost for

installing the piers and final plumbing and $2,480.00 for “Optional IFS to install

front drain[.]”

IFS performed the foundation repair and drainage installation over a three-day

period. Klarer contends the sub-surface drainage installed was deficient,

unworkmanlike, and not in compliance with the Agreement because it did not

discharge to the street. Instead, the water discharged eight to ten feet from the street

into the property’s front lawn and toward a neighbor’s property. Klarer paid IFS in

full for the foundation repairs but refused to pay for the drainage work. In the months

following the repairs, Klarer and IFS exchanged correspondence regarding Klarer’s

–4– concerns and IFS’s requests for payment but did not resolve the matter. On July 28,

2015, IFS recorded a mechanic’s lien against the property. Klarer then sued IFS for

breach of contract, breach of the implied warranty of good workmanship, and

violations of the Texas Deceptive Trade Practices Act (DTPA). Klarer sought

economic damages, treble damages, and attorney’s fees and asked for the

mechanic’s lien to be stricken and dissolved. IFS filed counterclaims for breach of

contract, quantum meruit, fees, and damages for violations of section 308.056 of the

Texas Estates Code.

After a bench trial, the trial court entered judgment for Klarer for actual

damages and attorney’s fees. IFS timely-requested findings of fact and conclusions

of law. The trial court, however, did not issue findings or conclusions. This appeal

followed.

STANDARD OF REVIEW

When, the trial court fails to file findings in response to a proper and timely

request, the court of appeals must presume the trial court made all the findings

necessary to support the judgment. Ad Villarai, LLC v. Chan Il Pak, 519 S.W.3d

132, 135 (Tex. 2017) (citing BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d

789, 795 (Tex. 2002)). When the appellate record contains a reporter’s record, as in

this case, findings of fact are not conclusive, are binding only if supported by the

evidence, and may be challenged for both legal and factual sufficiency. Sheetz v.

Slaughter, 503 S.W.3d 495, 502 (Tex. App.—Dallas 2016, no pet.); Quintanilla v.

–5– ANG Rental Holdings Series, LLC-Series Redeemer, No. 05-20-00062-CV, 2021

WL 3625075, at *2–3 (Tex. App.—Dallas Aug. 16, 2021, no pet.) (mem. op.) (citing

Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017)); Barlow v.

Richardson, No. 05-21-00844-CV, 2023 WL 195419, at *1 (Tex. App.—Dallas Jan.

17, 2023, no pet.) (mem. op.) (“A trial court's presumed findings may be challenged

for legal and factual sufficiency under the same standards that apply to a jury’s

verdict.”). In the absence of findings of fact and conclusions of law, the judgment of

the trial court must be affirmed if it can be upheld on any available legal theory that

finds support in the evidence. Rosemond v. Al–Lahiq, 331 S.W.3d 764, 766 (Tex.

2011) (per curiam); Sink v. Sink, 364 S.W.3d 340, 344–345 (Tex. App.—Dallas

2012, no pet.) (“If the implied findings are supported by the evidence, we must

uphold the judgment on any theory of law applicable to the case.”).

In reviewing a trial court’s findings of fact, we apply the same legal

sufficiency standard used when determining if sufficient evidence exists to support

an answer to a jury question. Sheetz, 503 S.W.3d at 502. When an appellant

challenges the legal sufficiency of an adverse finding on which he did not have the

burden of proof at trial, he must demonstrate there is no evidence to support the

adverse finding. Id. If more than a scintilla of evidence exists to support the finding,

the legal sufficiency challenge fails. Id.; see also King Ranch, Inc. v. Chapman, 118

S.W.3d 742, 751 (Tex. 2003) (“More than a scintilla of evidence exists when the

evidence ‘rises to a level that would enable reasonable and fair-minded people to

–6– differ in their conclusions.’ ” (quoting Merrell Dow Pharms., Inc. v. Havner, 953

S.W.2d 706, 711 (Tex. 1997)). When a party attacks the legal sufficiency of an

adverse finding on an issue on which he has the burden of proof, he must

demonstrate 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).

We review de novo a trial court’s conclusions of law. See Fulgham v. Fischer,

349 S.W.3d 153, 157 (Tex. App.—Dallas 2011, no pet.). We are not bound by the

trial court’s legal conclusions, but conclusions of law will be upheld on appeal if the

judgment can be sustained on any legal theory supported by the evidence. Sheetz,

503 S.W.3d at 502. Incorrect conclusions of law will not require reversal if the

controlling findings of fact will support a correct legal theory. Id. Moreover,

conclusions of law may not be reversed unless they are erroneous as a matter of law.

Id. “The availability of attorney’s fees under a particular statute is a question of law

for the court.” Brinson Benefits, Inc. v. Hooper, 501 S.W.3d 637, 641 (Tex. App.-–

Dallas 2016, no pet.) (citing Holland v. Wal–Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex.

1999)). We therefore review the issue of whether Klarer was entitled to an award of

attorney’s fees under chapter 38 of the civil practice and remedies code de novo. Id.

(citing El Paso Nat. Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex.

1999)).

–7– ANALYSIS

On appeal, IFS contends the evidence was legally insufficient to support the

trial court’s implied findings that IFS breached the contract and violated the DTPA.

IFS also asserts the evidence was legally insufficient to support the implied finding

that Klarer suffered damages caused by IFS’s conduct. IFS further argues the trial

court erred by awarding Klarer attorney’s fees. Finally, IFS maintains judgment

should be rendered in its favor on IFS’s breach of contract claim.

I. Sufficiency of the Evidence

In its first issue, IFS contends there is no evidence IFS breached the

Agreement and no evidence of damages caused by the drainage system installed by

IFS.

A. Klarer’s breach of contract claim

The elements of a cause of action for breach of a contract are: (1) a valid

contract; (2) the plaintiff performed or tendered performance; (3) the defendant

breached the contract; and (4) the plaintiff was damaged as a result of that breach.

McGraw v. Brown Realty Co., 195 S.W.3d 271, 276 (Tex. App.—Dallas 2006, no

pet.). A contract has been breached when a party fails to perform an act that it has

expressly or impliedly promised to perform. Id. IFS challenges only the third

element, arguing only that “Klarer failed to prove the third essential element of a

breach of contract case: a breach by IFS of an express or implied promise.” Klarer

–8– maintains IFS materially breached the Agreement because the drainage system

installed by IFS did not discharge to the street. We agree with Klarer.

The Agreement states, “IFS can install a solid sub-surface drain along the

front of the home as shown - discharging to the street[.]” When Klarer signed the

Agreement, he was agreeing to the terms listed, including that the drainage would

discharge to the street. It is undisputed the system installed by IFS did not discharge

to the street. Klarer testified the drainage system did not extend to the street and

discharged ten feet short of the street in the property’s front lawn. Wesley testified

the system ended at and discharged through two, pop-up emitters placed ten feet

from the street. Wesley contended the emitters were placed properly to allow the

water to discharge at the pop-up emitters and then gravity would move the water to

the street. In contrast, Klarer’s drainage expert, Danny Richter, testified the pop-up

emitters were installed “too far from the curb and did not take the water to the street.”

Richter inspected the drainage system installed by IFS and determined the system

was improperly installed because “[t]here were numerous portions within it that

made it insufficient for - - for the conditions that were there.” Richter testified the

water was discharging “in the middle of the yard, and it was going next to the

neighboring property.” He explained it is not proper to install a drainage system that

discharges into the yard and into neighboring property. It was Richter’ opinion IFS’s

installation of the drainage system was not performed in a good and workmanlike

manner. His proposal to fix the issue was to install a correct drainage system to

–9– discharge to the street, which would cost $2,460.42. Richter also found other

insufficiencies with the IFS system. For example, Richter concluded IFS should

have used PVC piping rather than corrugated piping because corrugated piping “is

an inferior product.” He also determined “[t]he catch basins were not installed at the

correct level to allow the water to fall in correctly.”

We conclude this testimony constitutes more than a scintilla of evidence that

IFS breached the express terms of the Agreement. See Sheetz, 503 S.W.3d at 502;

see also King Ranch, Inc., 118 S.W.3d at 751. We overrule IFS’s first issue

concerning evidence of breach.

B. Klarer’s damages

IFS also challenges the sufficiency of the evidence to support the award of

damages to Klarer. To recover damages for breach of contract, a plaintiff must prove

the defendant’s breach caused the damages. See, e.g., Southwell v. Univ. of the

Incarnate Word, 974 S.W.2d 351, 354–55 (Tex. App.—San Antonio 1998, pet.

denied). The evidence must show the damages were the natural, probable, and

foreseeable consequence of the defendant’s conduct. MetroMarke Multifamily Dev.

Fund I, L.P. v. RRAC Dev. GP, LLC, No. 05-18-00900-CV, 2019 WL 6522181, at

*3 (Tex. App.—Dallas Dec. 4, 2019, no pet.) (mem. op.) (citing Mead v. Johnson

Grp., Inc., 615 S.W.2d 685, 687 (Tex. 1981)). The measure of damages for breach

of contract is intended to put the complainant in the same economic position had the

contract been performed. Centre Equities, Inc. v. Tingley, 106 S.W.3d 143, 154 (Tex.

–10– App.—Austin 2003, no pet.) (citing Am. Nat’l Petroleum Co. v. Transcon. Gas Pipe

Line Corp., 798 S.W.2d 274, 278 (Tex.1990)). Stated differently, the general

measure of damages in a breach of contract case is “just compensation for the loss

or damage actually sustained.” Halmos v. Bombardier Aerospace Corp., 314 S.W.3d

606, 621 (Tex. App.—Dallas 2010, no pet.) (quoting ExxonMobil Corp. v. Valence

Operating Co., 174 S.W.3d 303, 316 (Tex. App.—Houston [1st Dist.] 2005, pet.

denied)).

Klarer sought and was awarded actual damages of $1,070.00, which was the

amount Klarer paid to have gutters installed. IFS contends Klarer presented no

evidence the installation of the gutters was causally linked to the alleged breach of

the Agreement or to any of Klarer’s complaints about the drainage system. We

disagree.

Klarer testified CCM recommended he install gutters on the front of the house

to remedy the drainage problems caused by IFS’s installation of the drainage system.

According to Klarer, he did not want to install gutters when the work was originally

performed because he did not like the aesthetic of gutters. He testified the CCM

Report recommended he either install gutters, repair the sump pump or install a

drainage system. Instead of installing gutters, he chose to repair the sump pump to

correct the inadequate drainage on the upper basins and hire IFS to install drain

basins in the lower part of the yard. But after IFS installed the drainage system in

what Klarer deemed to be a defective manner, Klarer contacted Jeff Crannell at CCM

–11– for advice on how to remedy the defects. Klarer testified he asked Crannell “if it

would be a good alternative to install gutters on the front of the property” to remedy

the defective drainage installed by IFS. Klarer installed the gutters to remedy IFS’s

defective work because Crannell said gutters were a good alternative to remedy the

damage. We conclude Klarer’s testimony constitutes more than a scintilla of

evidence to support an implied finding that the cost for installing gutters was a direct

damage suffered by Klarer as a result of IFS’s breach of the Agreement. We overrule

IFS’s first issue challenging the damages awarded to Klarer.

II. Attorney’s Fees

In its second issue, IFS argues Klarer was not entitled to recover attorney’s

fees because he suffered no compensable economic injury and had no statutory basis

to recovery his fees. We disagree.

“A person may recover reasonable attorney’s fees from an individual or

corporation, in addition to the amount of a valid claim and costs, if the claim is for:

... (8) an oral or written contract.” TEX. CIV. PRAC. & REM. CODE § 38.001(8). To

recover fees under section 38.001, “a party must prevail on a cause of action for

which attorney’s fees are recoverable, and (2) recover damages.” Green Int’l, Inc. v.

Solis, 951 S.W.2d 384, 390 (Tex. 1997); G.R.A.V.I.T.Y. Enters., Inc. v. Reece Supply

Co., 177 S.W.3d 537, 548 (Tex. App.—Dallas 2005, no pet.) (“section 38.001

requires recovery of damages for a claimant to be eligible to recover attorney’s

fees.”).

–12– As discussed above, Klarer prevailed on his breach of contract claim and

proved and recovered economic damages caused by IFS’s breach. Klarer was,

therefore, entitled to attorney’s fees under section 38.001. TEX. CIV. PRAC. & REM.

CODE § 38.001(8); see James Constr. Grp., LLC v. Westlake Chem. Corp., 650

S.W.3d 392, 418 (Tex. 2022) (prevailing party who was awarded damages on a

breach-of-contract claim was entitled to recover its reasonable attorney’s fees under

section 38.001) (citing Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d

195, 201 (Tex. 2004)). IFS does not challenge the amount of fees awarded by the

trial court. We, therefore, do not address the sufficiency of the evidence to support

the fee award. We overrule IFS’s second issue and affirm the award of attorney’s

fees to Klarer.

III. Remaining appellate issues

In its third and fourth issues, IFS challenges the sufficiency of the evidence to

support an implied finding for Klarer on the DTPA claims and seeks rendition of

judgment in favor of IFS on its claims for breach of contract and attorney’s fees.

We have affirmed the judgment for Klarer on his breach of contract claim.

Because our resolution of IFS’s first two issues provide a basis for the trial court’s

judgment independent of IFS’s remaining issues, we need not reach the remaining

issues. TEX. R. APP. P. 47.1; see Malouf v. Sterquell PSF Settlement, L.C., No. 05-

17-01343-CV, 2019 WL 5799988, at *6 (Tex. App.—Dallas Nov. 7, 2019, pet.

denied) (mem. op.) (concluding court did not need to reach remaining issues where

–13– resolution of first issue provided a basis for affirming the trial court’s judgment

independent of appellant’s remaining issues) (first citing Wyde v. Francesconi, 566

S.W.3d 890, 895 (Tex. App.—Dallas 2018, no pet.), and then citing Anderton v.

Green, 555 S.W.3d 361, 371 (Tex. App.—Dallas 2018, no pet.)); see also

Grindinger v. Kixmiller, No. 02-06-00221-CV, 2007 WL 529954, at *5 (Tex.

App.—Fort Worth Feb. 22, 2007, pet. denied) (mem. op.) (no need to address

challenge to findings on alternative theory of recovery under the DTPA when

judgment affirmed on contract claim).

CONCLUSION

The evidence was legally sufficient to support the trial court’s implied

findings on Klarer’s claims for breach of contract and attorney’s fees. Accordingly,

we overrule IFS’s first and second issues, do not reach IFS’s remaining issues, and

affirm the judgment.

/Robbie Partida-Kipness ROBBIE PARTIDA-KIPNESS JUSTICE

220660F.P05

–14– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

WESLEY & WESLEY, INC., D/B/A On Appeal from the Probate Court INTEGRATED FOUNDATION No. 3, Dallas County, Texas SOLUTIONS, Appellant Trial Court Cause No. PR-18-00368- 3. No. 05-22-00660-CV V. Opinion delivered by Justice Partida- Kipness. Justices Reichek and Miskel STEPHEN KLARER, AS participating. INDEPENDENT EXECUTOR FOR ESTATE OF ROBERT L. KLARER, DECEASED, Appellee

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee STEPHEN KLARER, AS INDEPENDENT EXECUTOR FOR ESTATE OF ROBERT L. KLARER, DECEASED recover his costs of this appeal from appellant WESLEY & WESLEY, INC., D/B/A INTEGRATED FOUNDATION SOLUTIONS.

Judgment entered this 4th day of October 2023.

–15–