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Spivey v. Goodwin

Court of Appeals of Texas, Tenth District

June 7, 2017

GARY SPIVEY, OWNER OF AMERICA'S CHOICE ROOFING AND AMCHOICE, LLC DBA AMERICA'S CHOICE ROOFING, Appellants
v.
JOANN GOODWIN, Appellee

         From the County Court Robertson County, Texas Trial Court No. 15-17-CV

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins

          MEMORANDUM OPINION

          AL SCOGGINS Justice.

         In four issues, appellants, Gary Spivey, owner of America's Choice Roofing, and AmChoice, LLC, challenge the trial court's judgment. Specifically, appellants contend that the trial court erred by: (1) failing to award judgment for appellants under a written contract with appellee, Jo Ann Goodwin; (2) granting relief on a theory of breach of implied warranty that was not pleaded or supported; (3) failing to award interest at the rate established in the contract; and (4) denying any award of attorney's fees. Because we conclude that the trial court erred, we modify the judgment to reflect a $2, 900 damage award in favor of appellants and to include awards of attorney's fees and interest provided by the underlying contract. We affirm as modified.[1]

         I. Background

         This dispute arises out of a written contract for the replacement of a residential roof. On March 17, 2015, Goodwin entered into a contractual agreement with appellants for the installation of a roof on a property owned by Goodwin in Calvert, Texas. Pursuant to the agreement, Goodwin would pay $33, 236.03 in exchange for appellants installing a new roof, decking, drip edges, valleys, ventilation, insulation, shingles and related materials, and labor, including the removal and installation of such roof materials. The charges under the contract were to be paid in two installments-$16, 168.01 on the delivery of the materials and $16, 168.02 on the final walk-through. Furthermore, at no additional cost, appellants agreed to install 150 feet of gutters on the home.

         Later, on May 1, 2015, Goodwin and appellant entered into a written change order that modified the work to be completed under the contract. For an additional $900 from Goodwin, appellants agreed "to include remaining 35 Linear Feet of gutters for flat portion of roof above and beyond original contract, dated March 17, 2015."

         The record reflects that Goodwin made two payments under the contract. She paid the first installment of $16, 168.01 on April 28, 2015. However, as work commenced on the roof, Goodwin became dissatisfied. As noted at trial, Spivey met with Goodwin because she was upset about the job. When conducting a walk-through of the work, Goodwin identified a number of changes she wanted, including rebuilding two finials that she alleged had been damaged during the work. Appellants repaired the finials. Goodwin also requested patching of a flat section of the roof, although that section of the roof was not within the scope of the original contract. Spivey testified that he tried to make Goodwin happy by putting "a coating over the flat roof." Further, Goodwin requested that appellants paint the chimney flashing because "something about the paint didn't look right." Appellants repainted all of the chimneys.

         At the conclusion of her meeting with Spivey, Goodwin provided a second check in the amount of $14, 168.02. In the memo portion of the check, Goodwin handwrote "balance due $2, 900." Goodwin withheld the remaining balance of $2, 900 because she did not believe that the work was completed. In any event, in June 2015, appellant sent a final invoice to Goodwin requesting the remaining $2, 900. Goodwin argued that the work was not complete and refused to pay, thus prompting a second invoice from appellants for the $2, 900. Goodwin once again complained about the work on the flat section of the roof, refused to pay the remaining balance, and threatened suit.

         On November 10, 2015, Goodwin filed suit in justice court in Robertson County against "Gary Spivey, Owner of America's Choice Roofing, " asserting damages in the amount of $2, 900 because "3 flat roofs are . . . leaking" and some of her gutters are rusted. Spivey filed an answer denying Goodwin's allegations. Thereafter, AmChoice intervened asserting counterclaims of breach of contract and quantum meruit against Goodwin. AmChoice also pled for the recovery of attorney's fees, as well as pre- and post-judgment interest.

         After a bench trial, the justice court rendered two separate judgments-a take-nothing judgment on Goodwin's claims against Spivey and a judgment against Goodwin on the breach-of-contract counterclaim. Appellants were awarded $3, 841 in damages, which was comprised of $2, 000 in damages under the contract, $1, 800 in attorney's fees, and $41 in court costs. Goodwin appealed the justice court's judgment to the County Court. Appellants refiled their pleadings in the County Court.

         On January 28, 2016, this matter was tried in the Robertson County Court. Goodwin represented herself, and the record reflects that she did not call any witnesses, though she did submit numerous documents to support her contentions. Goodwin contended that the work on the flat-roof sections was part of the original contract and that she had to pay Lopez Construction $1, 300 to correct the work of appellants on the flat-roof sections. Spivey, as well as AmChoice employee Chuck Allen, testified at trial. At the conclusion of the trial, the trial court awarded appellants $1, 600 in damages, which constituted a $1, 300 reduction of the $2, 900 Goodwin allegedly owed under the contract. This reduction corresponded with the amount Goodwin paid to Lopez Construction. The trial court also declined to award costs, interest, or attorney's fees to either party. At the request of appellants, the trial court entered findings of fact and conclusions of law. Subsequently, appellants filed their joint notice of appeal.

         II. Analysis

         In their first and second issues, appellants contend that the trial court erred by failing to award judgment for appellants under the written contract and by granting relief to Goodwin on a theory of breach of ...


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