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Buccaneer Construction, LLC v. Scott

Court of Appeals of Texas, First District

April 18, 2017

BUCCANEER CONSTRUCTION, LLC, Appellant
v.
YALE SCOTT AND LESLIE SCOTT, Appellees

         On Appeal from the County Court at Law No. 2 Galveston County, Texas, Trial Court Case No. CV-0074131

          Panel consists of Justices Keyes, Bland, and Huddle.

          MEMORANDUM OPINION

          JANE BLAND JUSTICE.

         When plans to remodel an attic space could not meet city requirements, Leslie and Yale Scott sued Buccaneer Construction LLC for the return of their construction deposit. Buccaneer counterclaimed for breach of contract. The Scotts prevailed at a bench trial, and the trial court awarded them their deposit and attorney's fees. Buccaneer appeals, contending that the trial court lacked jurisdiction to grant the Scotts' motion to reinstate the case after it was dismissed for want of prosecution and that factually insufficient evidence supports the judgment. We conclude that the trial court had jurisdiction and sufficient evidence supports the judgment. We therefore affirm.

         Background

         The Scotts hired Buccaneer Construction to convert their home's attic space to a dormer room and bathroom. They provided a $9, 200 deposit toward construction costs. Buccaneer required construction plans before beginning work. The architect that Buccaneer recommended the Scotts use raised concerns that the house would not accommodate the planned remodel and the city would not approve permits for it. Later, he forwarded an email showing that the local architectural control committee had rejected the proposed plans, and in particular, the inclusion of a bathroom. The Scotts cancelled the contract and demanded the return of their deposit. Buccaneer refused, and the Scotts sued Buccaneer.

         At trial, Leslie Scott testified that she and her husband contracted with Buccaneer Construction in February 2015 to add an additional bathroom and to convert the attic space for a total labor cost of $18, 400. Upon signing the contract, Leslie Scott wrote a check to Buccaneer Construction for $9, 200. Before beginning, Buccaneer required construction drawings. On Buccaneer's recommendation, the Scotts retained Branko Gligoric for the job-an architect that Buccaneer often used. After Gligoric measured the space and drew plans, he reported to the Scotts that the bathroom could not be completed in the dormer space because it would not comply with the building code. Several days later Gligoric sent plans for the construction attached to an email that stated, "I think it will looks very good without building a new bathroom."

         In contrast, at trial, Branko Gligoric testified that the bathroom could be built in compliance with city code and that he never told the Scotts otherwise. Victor Hegman, Buccaneer's owner and president, testified that his company lost $5, 200 in planning and opportunity costs associated with the Scotts' cancellation of the contract. Hegman conceded that Buccaneer had not performed any work or taken delivery of any construction materials before the Scotts cancelled the contract.

         In April 2015, the Scotts sued for rescission and for violations of the Texas Deceptive Trade Practices Act, claiming that Buccaneer had misrepresented the feasibility of the project and that the contract was impossible to perform. Buccaneer counterclaimed for breach of contract.

         The trial court dismissed the case for want of prosecution twice, but it granted the Scotts' timely motions to reinstate following each dismissal. Both dismissals were premised on the parties' failure to appear for a status conference. The trial court first dismissed the case for want of prosecution in September 2015. The Scotts moved to reinstate the case four days later, submitting an affidavit that verified that everything stated in the motion was true and correct. The trial court reinstated the case.

         The Scotts missed a second status conference, and the trial court again dismissed the case for want of prosecution in October 2015. In early November, the Scotts again moved to reinstate. The Scotts made slight alterations to their first motion to reinstate, but used the same verification for their second motion to reinstate that they had attached to their first motion to verify that everything stated in the motion was true and correct.

         Discussion

         Buccaneer challenges the trial court's jurisdiction and the sufficiency of the evidence to support its judgment.

         I.Verification ...


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