Appeal from the 61st District Court Harris County, Texas
Trial Court Cause No. 2015-22140
consists of Justices Christopher, Bourliot, and Spain.
FRANCES BOURLIOT, JUSTICE
dispute involves the foreclosure of a mechanic's
lien. Schear Hampton Drywall, LLC sued to
foreclose on its lien against Founders Commercial Ltd. and
challenges in three issues the trial court's reduction of
the amount of Schear Hampton's lien and failure to award
attorney's fees to Schear Hampton. We affirm.
entered into a general contract with Construction
Supervisors, Inc., for the construction of a senior living
residential project in Houston, Texas known as "The
Abbey." Construction Supervisors entered a subcontract
with Target Masonry to complete brick and stucco work on The
Abbey. Target Masonry subsequently walked off the job.
Construction Supervisors then hired Schear Hampton to
complete the stucco work. The subcontract between
Construction Supervisors and Schear Hampton called for Schear
Hampton to "[f]urnish and install [s]tucco in compliance
with plans and specifications for a complete turnkey
job" for the sum of $235, 000. According to Schear
Hampton, the contract price was increased by $155, 967
pursuant to change orders approved by Construction
into construction on The Abbey, Construction Supervisors
notified Founders that it could not comply with the general
contract because of financial problems. Founders agreed to
pay the subcontractors directly and let Construction
Supervisors manage the project.
Hampton served Founders with a "Notice to Owner and
Prime Contractor of Unpaid Claim for Materials and/or Labor
Furnished." In the notice, Schear Hampton claimed that
under its subcontract with Construction Supervisors, there
was an unpaid balance of $152, 173.60 for "materials
and/or labor during the months of . . . October [and]
September 2014." Schear Hampton described its services
as "[s]tucco-labor and material." Schear Hampton
later filed an "Amended Affidavit for Mechanic's and
Materialman's Lien" in the amount of $152, 173.60
and then filed this lawsuit against Founders and Construction
Supervisors, seeking foreclosure of the lien.
answered and asserted that Schear Hampton's lien claim
should be offset by "damages caused by Schear
[Hampton's] breach of its subcontract with Construction
Supervisors," "the cost to correct errors and
omissions by Schear [Hampton] in the performance of its
subcontract," and "the amount necessary to complete
the work Schear [Hampton] agreed to perform in its
subcontract." Founders filed a counterclaim for
negligence and breach of contract in connection with Schear
Hampton's performance under the subcontract. Founders
also sought a declaration that Schear Hampton "has been
paid the full amount to which it is entitled for its services
rendered and materials supplied."
bench trial, the trial court rendered judgment that Schear
Hampton's lien was partially valid "in the amount of
$36, 678.32" and that Founders was entitled to an offset
for $15, 000 in damages on its counterclaim. The trial court
awarded Schear Hampton damages of $21, 678.32 against
Founders and awarded Founders that amount in a default
judgment against Construction Supervisors. The trial court
declared that the lien is "null and void and of no force
and effect . . . to the extent it exceeds the amount of $21,
678.32." The trial court also ordered that if the
judgment for Schear Hampton was not "paid when
final," then Schear Hampton could "conduct a
foreclosure sale in compliance with the provisions of the
Texas Property Code, with respect to the real property
identified" in the lien.
Hampton challenges the judgment in three issues, contending
(1) the trial court's reduction of the lien and offset
for Founders' damages are not supported by legally and
factually sufficient evidence; (2) the trial court erred in
denying Schear Hampton's request for attorney's fees;
and (3) the trial court failed to order a foreclosure in
compliance with the Property Code.
Is the judgment supported by legally and factually sufficient
Hampton in its second issue challenges the sufficiency of the
evidence in support of the trial court's findings that
Schear Hampton was owed less than the amount alleged in its
lien and that the lien amount should be offset by the damages
awarded to Founders.
review the trial court's decision for legal and factual
sufficiency of the evidence using the same standards applied
in reviewing the evidence supporting a jury's finding.
Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.
1994). We review the evidence in the light most favorable to
the challenged finding and indulge every reasonable inference
that would support it. City of Keller v. Wilson, 168
S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if
a reasonable factfinder could and disregard contrary evidence
unless a reasonable factfinder could not. Id. at
sustain a legal sufficiency or "no evidence"
challenge only when (1) the record discloses 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 mere
scintilla; or (4) the evidence establishes conclusively the
opposite of the vital fact. Marathon Corp. v.
Pitzner, 106 S.W.3d 724, 727 (Tex. 2003); Vast
Constr., LLC v. CTC Contractors, LLC, 526 S.W.3d 709,
719 (Tex. App.-Houston [14th Dist.] 2017, no pet.). A party
attacking the legal sufficiency of an adverse finding on an
issue on which it had the burden of proof must show that the
evidence conclusively establishes all vital facts in support
of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d
237, 241 (Tex. 2001). When a party challenges the legal
sufficiency of the evidence on a finding on which it did not
bear the burden of proof, the party must show that no
evidence supports the finding. Exxon Corp. v. Emerald Oil
& Gas Co., L.C., 348 S.W.3d 194, 215 (Tex. 2011);
Sloane v. Goldberg B'Nai B'Rith Towers, No.
14-17-00557-CV, 2019 WL 2000484, at *9 (Tex. App.-Houston
[14th Dist.] May 7, 2019, no pet. h.).
reviewing factual sufficiency, we examine the entire record,
considering both the evidence in favor of and contrary to the
challenged findings. Mar. Overseas Corp. v. Ellis,
971 S.W.2d 402, 406-07 (Tex. 1998); 2900 Smith, Ltd. v.
Constellation NewEnergy, Inc., 301 S.W.3d 741, 746 (Tex.
App.-Houston [14th Dist.] 2009, no pet.). When a party
attacks the factual sufficiency of an adverse finding on
which it bore the burden of proof, it must establish that the
finding is against the great weight and preponderance of the
evidence. Dow Chem. Co., 46 S.W.3d at 242;
Burton v. Prince, 577 S.W.3d 280, 285 (Tex.
App.-Houston [14th Dist.] 2019, no pet.). When a party
challenges the factual sufficiency of the evidence supporting
a finding on which it did not have the burden of proof, we
may set aside the finding only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong
and unjust. Mar. Overseas Corp. v. Ellis, 971 S.W.2d
402, 407 (Tex. 1998); Safeco Ins. Co. of Am. v. Clear
Vision Windshield Repair, LLC, 564 S.W.3d 913, 919 (Tex.
App.-Houston [14th Dist.] 2018, no pet.). If we determine the
evidence is factually insufficient, we must detail the
evidence relevant to the issue and state in what regard the
contrary evidence greatly outweighs the evidence supporting
the trial court's judgment; we need not do so when
affirming the judgment. Gonzalez v. McAllen Med. Ctr.,
Inc., 195 S.W.3d 680, 681 (Tex. 2006); 2900
Smith, 301 S.W.3d at 746.
apply these standards mindful that the factfinder is the sole
judge of the credibility of the witnesses and the weight to
be given to their testimony, and we indulge every reasonable
inference in support of the factfinder's findings.
See City of Keller, 168 S.W.3d at 819, 822; 2900
Smith, 301 S.W.3d at 745. When, as here, there is a
complete reporter's record of the trial, the trial
court's findings of fact will not be disturbed on appeal
if there is any evidence of probative force to support them.
See Barrientos v. Nava, 94 S.W.3d 270, 288 (Tex.
App.-Houston [14th Dist.] 2002, no pet.). Likewise, incorrect
conclusions of law will not require reversal if the
controlling facts support a correct legal theory. BMC
Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794
Evidence of Amount Owed to Schear Hampton
Hampton challenges the trial court's finding that
"[t]he balance owed to [Schear Hampton] for work on The
Abbey performed by [Schear Hampton] is $36, 678.32."
Schear Hampton argues that it presented the following
evidence: (1) it was owed $390, 967 under the subcontract and
change orders for completed work; (2) it was paid $238,
793.40; and (3) it was owed a remaining balance of $152,
prevail on its claim, Schear Hampton had to prove it
performed the labor or furnished the materials and the debt
is valid. See Crawford Servs., Inc. v. Skillman
Int'l. Firm, L.L.C., 444 S.W.3d 265, 268 (Tex.
App.-Dallas 2014, pet. dism'd). Schear Hampton thus has
the burden of proof on appeal to conclusively establish these
elements or that the trial court's finding as to the
amount owed is against the great weight and preponderance of
the evidence. See Dow Chem. Co., 46 S.W.3d at
241-42; Burton, 577 S.W.3d at 285.
presented a pay application at trial that was preadmitted by
agreement and reflected a balance due to Schear Hampton of
$36, 678.32. The pay application was for the period ending
April 20, 2015, and referenced the original contract amount
of $235, 000, "'Approved' Changes To The
Contract" of $131, 783.24, and "Previous
Payments" of $330, 104.92. After the previous payments
were applied, the pay application reflects the "CURRENT
PAYMENT DUE" of $36, 678.32. The document is stamped
"ENTERED 15 APR 2015."
Hampton challenges the pay application on the following
grounds: (1) it was dated after Schear Hampton filed its lien
and "clearly created for the litigation by
Founders"; (2) Founders made a judicial admission in its
third party petition that Schear Hampton had an unpaid
balance of $152, 173.60 and did not complain that the lien
claim was excessive or invalid; and (3) the pay application
is not signed and was not authenticated. Founders counters
that (1) there is no evidence the document was created for
litigation; (2) Founders' pleading referencing the amount
of Schear Hampton's lien claim is not a judicial
admission; (3) none of the pay applications admitted at trial
were signed; and (4) Shear Hampton did not object to the
authenticity of the document.
Schear Hampton's first argument, the pay application was
presented at trial through John Black, the president of
Construction Supervisors. He testified that the pay
application was dated April 20, 2015, after all the work was
done on The Abbey project. According to him, the pay
application was sent from Schear Hampton to Construction
Supervisors, and it was initialed by an accountant from
Construction Supervisors. According to Founders, the pay
application was served in discovery by Construction
Supervisors, and the Bates stamp on the document admitted at
trial reflects that to be correct. Whether the pay
application was created for litigation relates to the weight
of the evidence, and we defer to the trial court, as the
factfinder and sole judge of the credibility of the evidence,
on this issue. See City of Keller, 168 S.W.3d at
agree with Founders that the recitation in Founders'
petition of the amount of Schear Hampton's lien claim is
of no moment and is not a judicial admission that Founders
owed Schear Hampton the amount of its lien claim. Similarly,
Schear Hampton has not established how the lack of a
signature indicates the pay application is no evidence of the
amount owed. At most, it raises a fact question about whether
the payments referenced in the document were
made. We also must defer to the factfinder on
testified that the pay application showed an amount due in
April 2015 of $36, 678. We agree with Founders that this is
some evidence of the amount owed to Schear Hampton after
completion of the work. Schear Hampton argues that the pay
application reflects a payment of $92, 000 that is not
supported by evidence of "when, how, or by whom"
that payment was made. However, the pay application itself is
evidence of the ...