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Affirmed and Memorandum Opinion filed January = 10,=20 2008.

 

 

In The

 

Fourteenth=20 Court of Appeals

____________

 

NO. 14-06-00536-CV

____________

 

THOMAS=20 DUMLER and LESLIE DUMLER, = Appellants

 

V.

 

QUALITY WORK=20 BY DAVIDSON and TRI-WAY ENTERPRISES, = Appellees

 

 

On Appeal from = the=20 County Civil Court at Law No. 2

Harris County, = Texas

Trial Court Cause = No. 780,487

 

 

M E M O R=20 A N D U M   O P I N I O N

Thomas=20 Dumler and Leslie Dumler appeal from a judgment awarding them = actual=20 damages of $3,000 for breach of contract and attorney=3Ds fees of=20 $10,000 against appellees Quality Work by Davidson (Quality Work) = and=20 Tri-Way Enterprises (Tri-Way).[1] =20 In three issues, the Dumlers complain that the trial court erred = by=20 conducting the trial over a period of two years and two months, = the award=20 of attorney=3Ds fees is=20 arbitrary and unreasonable, and the damages award is against the = great=20 weight and preponderance of the evidence.  We affirm the = trial=20 court=3Ds=20 judgment.

           = ;            =             &= nbsp;=20 I.  Background

This=20 appeal arises out of a construction contract between the Dumlers = and=20 contractors Quality Work and Tri-Way.  In December 2001, the = Dumlers=20 signed a remodeling contract with Quality Work for repairs and = renovations=20 on their home.  Quality Work subcontracted with James Lupo of = Tri-Way=20 to install marble tile in two bathrooms in the house_the powder=20 room and the master bathroom.

The=20 Dumlers paid Quality Work on a time and materials basis as they = received=20 invoices until June of 2002, when the Dumlers noticed that tile = installed=20 in the powder room had blistered.  Unhappy with the quality = of the=20 tile installation, the Dumlers stopped making payments.  Kent = Davidson, owner of Quality Work, agreed the tile needed to be=20 redone.  He told Mrs. Dumler that if the Dumlers would buy = the=20 replacement tile, he would reinstall it for free.  At this = point,=20 Mrs. Dumler told Davidson she only wanted to deal with = Lupo.  =20

Further=20 negotiations ensued between Mr. Dumler and Davidson regarding the=20 Dumlers=3D = dissatisfaction and refusal to pay.  The parties agreed that = upon=20 Quality Work undertaking  certain repairs, the Dumlers would = send=20 Quality Work a check for the outstanding bill to date.  = Although the=20 parties dispute whether Davidson quit or was fired, it is clear = that the=20 agreement fell through.  Mr. Dumler claimed he stopped paying = because=20 Quality Work Awalked off=20 the job@ = and did=20 not uphold its promise to start the requested repairs.  = Davidson=20 claimed he quit working because he was Afired@ = and was=20 not receiving payment.  Tri-Way ultimately replaced the = blistered=20 tile in the powder room. 

In August=20 2002, the Dumlers sent Quality Work a check for about = $14,500.  The=20 letter accompanying the check explained the Dumlers were deducting = approximately $4,900 for costs the Dumlers incurred to complete = the powder=20 and master bathrooms from the $19,391.89 Quality Work claimed the = Dumlers=20 still owed.  The Dumlers claim they later noticed that tile = in both=20 the powder room (which had already been replaced once by Tri-Way = after it=20 blistered) and the master bathroom was coming loose.

Quality=20 Work and Tri-Way filed suit for the outstanding $4,900 in October=20 2002.  The Dumlers counterclaimed under the Residential = Construction=20 Liability Act and the Deceptive Trade Practices Act and also = alleged=20 breach of contract, breach of express and implied warranties, = fraud,=20 negligent misrepresentation, and negligence.  After a bench = trial=20 that was conducted in segments over a period of approximately two = years,=20 the judge decided against Quality Work on the breach of contract = claim and=20 awarded the Dumlers $3,000 in actual damages and $10,000 in=20 attorney=3Ds fees.[2]

The=20 Dumlers raise three issues on appeal.  In their first issue, = the=20 Dumlers complain the trial judge abused his discretion by = conducting the=20 trial over two years.  In their second and third issues, the = Dumlers=20 challenge the amount of attorney=3Ds fees and=20 damages awarded.

II. =20 Damages

Standard of=20 Review

The Dumlers appeal = the damages=20 award as being against the great weight and preponderance of the=20 evidence.  We review a trial court=3Ds findings for = factual=20 sufficiency under the same standards applied in reviewing the = evidence=20 supporting a jury=3Ds answer.  = Catalina v.=20 Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).  In reviewing a = factual=20 sufficiency challenge, we must consider all the evidence in the = record,=20 both supporting and contrary to the judgment.=20  Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, = 445 (Tex.=20 1989).  After weighing all the evidence, the court should set = aside=20 the verdict only if the evidence is so weak as to be clearly wrong = and=20 manifestly unjust.  Cain v. Bain, 709 S.W.2d 175, 176 = (Tex.=20 1986). =20

As the=20 trier of fact in a bench trial, the trial judge is the sole evaluator of = the=20 witnesses=3D = credibility and the weight of their testimony.  Peter v. = Ogden=20 Ground Servs. Inc., 915 S.W.2d 648, 649 (Tex. App._Houston=20 [14th Dist.] 1996, no writ).  The trial court may = draw=20 reasonable inferences from the evidence, and the court=3Ds findings may not be = disregarded if the record contains some evidence of probative = value from=20 which those inferences may be drawn.  Id. at = 649B50.  When, as = here, no=20 findings of fact or conclusions of law are requested or filed, we = imply=20 all necessary findings in support of the trial court=3Ds judgment.  = Holt=20 Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. = 1992). =20 However, because a reporter=3Ds record has been = provided, the=20 implied findings may be challenged for factual insufficiency the = same as=20 jury findings or a trial court=3Ds findings of = fact. =20 Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. = 1989).  We=20 must affirm the judgment on any theory of law that finds support = in the=20 evidence.  Worford v. Stamper, 801 S.W.2d 108, 109 = (Tex.=20 1990).

Analysis

The=20 ultimate goal in measuring damages for a breach of contract claim = is to=20 provide just compensation for any loss or damages actually = sustained as a=20 result of the breach.  Mays=20 v. Pierce, 203=20 S.W.3d 564, 577 (Tex. App.CHouston=20 [14th Dist.] 2006, pet. denied).  The normal measure of = damages=20 in a breach of contract case is the benefit of the bargain, the = purpose of=20 which is to restore the injured party to the economic position it = would=20 have been in had the contract been performed.  = Id. =20 The party=20 seeking to recover the cost of completion or repairs bears the = burden of=20 showing those costs were reasonable and necessary.  = Mustang=20 Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 200 (Tex. = 2004).  To establish that repairs are necessary and = reasonable, the=20 magic words Areasonable@ = and=20 Anecessary@ = need not=20 be used; the injured party need only present sufficient competent = evidence=20 so that the trier of fact is justified in concluding that the = repairs are=20 necessary and that the costs of repair are reasonable. =  Jacobs v.=20 Danny Darby Real Estate, Inc., 750 S.W.2d 174, 174 (Tex. = 1988).=20

The trial court = awarded the=20 Dumlers $3,000 for breach of contract damages without specifying = whether=20 the damages related to the cost of repairing the powder room or = the master=20 bathroom.  The Dumlers contend the damages award is against = the great=20 weight and preponderance of the evidence and that the evidence = supports an=20 award upwards of $31,000.  Quality Work responds that the = damages=20 award is consistent with the evidence presented at trial.  We = agree.

The Dumlers presented = expert=20 testimony that the loose tile in the powder=20 room required repair.  As further evidence that the tile = needed=20 redoing, they also attempted to show that Tri-Way had not properly = followed installation instructions.  In=20 response, Quality Work and Tri-Way disputed the expert=3Ds=20 conclusions regarding why the tiles were coming loose.  = Counsel for=20 Tri-Way elicited testimony from Lupo that he had correctly = followed=20 instructions, had not observed the blistered tile coming loose = when he=20 went to replace it, and had laid the present tile (which was now = coming=20 loose) in the same manner as the blistered tile (which did not = come=20 loose).  Both=20 sides presented evidence=20 that = between=20 $2,400 and $4,200 = was a=20 reasonable cost=20 for repairing the powder room tile.[3]

After reviewing the = evidence,=20 we conclude the trial court=3Ds implied finding = that the=20 Dumlers proved reasonable and necessary repairs in the amount of = $3,000 to=20 the powder room tile is supported by factually sufficient = evidence. =20 The trial court heard conflicting testimony regarding the = necessity of=20 repairing the powder room.  As the sole judge of the = credibility of=20 the witnesses and the weight to be given their testimony, the = trial court=20 could have chosen to resolve the conflicting testimonies in the=20 Dumlers=3D favor.  See = McGalliard=20 v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986) (factfinder may = resolves=20 inconsistencies in testimony and believe one witness over = another). =20 Moreover, the award of $3,000 fell within the range of repair = costs=20 submitted by each side, and estimates of repair costs submitted by = both=20 parties that approximate the actual damages awarded by a trial = court=20 support the reasonableness of such repairs.  See Hernandez = v.=20 Lautensack, 201 S.W.3d 771, 777 (Tex. App.CFort Worth=20 2006,

pet. denied) (where = damage=20 award fell within range of costs testified to by each side, such = testimony=20 was some evidence supporting jury award for reasonable cost of=20 repairs). 

We further conclude=20 the trial=20 court=3Ds implied=20 finding that the Dumlers failed to demonstrate reasonable and = necessary=20 repairs to the master bath tile is supported by the = evidence.  The=20 Dumlers presented expert testimony regarding the substandard = quality of=20 work in the master bathroom.  In support of their argument = that the=20 evidence proves $30,000 in reasonable repairs to the master bath, = the=20 Dumlers point to Davidson=3Ds=20 testimony.  Davidson testified he charged the Dumlers around = $30,000=20 for installation of the master bath tile and that he had never = sent out a=20 bill that he believed was unreasonable.[4] =20 From this testimony, the Dumlers infer that since redoing the = master bath=20 tile should cost at least as much as the original job, then = logically=20 $30,000 is a reasonable cost for repairs to the master bath.  = The=20 Dumlers also submitted quotes from outside contractors estimating = repairs=20 to the master bathroom at upwards of $30,000. =

The trial=20 judge could have chosen to disbelieve the Dumler=3Ds expert=20 and to disagree with the Dumlers=3D = interpretation of Davidson=3Ds=20 testimony, leaving no evidence on the necessity of repairs to the = master=20 bathroom.  See McGalliard, 722 S.W.2d at 697 (trier of = fact is=20 afforded considerable discretion in evaluating opinion testimony = on issue=20 of damages).  The Dumlers submitted estimates from the = outside=20 contractors.  However, there was no direct testimony = regarding what=20 repair costs to the master bathroom, if any, were reasonable, and = this=20 court has held that invoices alone, without testimony on = reasonableness,=20 will not suffice to prove the repairs were reasonable.  = See=20 Allright Inc. v. Lowe, 500 S.W.2d 190, 192 (Tex. Civ. = App.CHouston=20 [14th Dist.] 1973, no writ) (receipted bills alone are = insufficient to=20 show amounts paid were reasonable); cf. Carrow v. Bayliner = Marine=20 Corp., 781 S.W.2d 691, 694B95 (Tex.=20 App.CAustin=20 1989, no writ) (record contained some = evidence=20 of reasonableness of repairs where expert testified to his = estimate of=20 what it would cost to make repairs). =20 Thus, although the Dumlers presented some evidence on master bath = repairs,=20 the trial court could have concluded the Dumlers failed to = demonstrate=20 reasonable and necessary repairs of $30,000 to the master = bath. =20 See Ebby Halliday Real Estate v. Murnan, 916 S.W.2d = 585,=20 589B90 (Tex.=20 App.CFort Worth=20 1996, writ denied) (sustaining no evidence challenge to damages = award,=20 stating that although evidence showed plaintiffs believed repairs = were=20 necessary, with no evidence that specific work done was necessary = and no=20 testimony that costs spent on repairs were reasonable, jury was = left to=20 speculate).  Because the Dumlers did not show a reasonable = and=20 necessary amount to repair the master bath, we conclude the trial = judge=20 was justified in impliedly awarding zero damages for = this.

We hold=20 that the evidence is factually sufficient to support the trial=20 court=3Ds implied=20 finding of $3,000 for reasonable and necessary repairs to the = powder room=20 tile.  Further, we do not find the trial court=3Ds implied=20 finding that the evidence failed to support an award of damages = for=20 repairs to the master bathroom so contrary to the great weight and = preponderance of the evidence as to be clearly wrong and = manifestly=20 unjust.  We=20 overrule the Dumlers=3D third = issue.

III. =20 The Course and Conduct of the Trial

We turn=20 now to the Dumlers=3D = first=20 issue.  They argue that conducting the trial intermittently = over a=20 period of more than two years constituted an abuse of discretion = that=20 prejudiced them and resulted in memory lapses on the = judge=3Ds part, as=20 evidenced by an arbitrary and unreasonable damages award.  = Quality=20 Work responds that the trial court acted within its discretion, = and even=20 if it did not, by failing to timely object[5]=20 to the manner in which the judge conducted the trial, the Dumlers = waived=20 error and may not now raise the issue on appeal.  We agree = that=20 error, if any, was waived.

To preserve error, a = timely,=20 specific objection must be made.  Tex. R. App. P. = 33.1(a). =20 The requirement to act timely encompasses not only the objection = itself=20 but also all grounds allegedly supporting it.  Both the = objection and=20 all legal bases for it must be timely asserted. Hoxie Implement = Co. v.=20 Baker, 65 S.W.3d 140, 145 (Tex. App.CAmarillo 2001, pet. = denied)=20 (citing Credille v. State, 925 S.W.2d 112, 115B16 (Tex. = App.CHouston [14th Dist.] = 1996, writ=20 ref=3Dd)).  An = objection is=20 considered timely urged when it is asserted at the earliest = opportunity,=20 id. at 152, or interposed at a point in the proceedings in = which=20 the trial court has an opportunity to cure any alleged error, = Brown v.=20 Pittsburgh Corning Corp., 909 S.W.2d 101, 104 (Tex. = App.CHouston [14th Dist.] = 1995, writ=20 denied).  Raising the objection and grounds for the first = time in a=20 motion for new trial does not satisfy the contemporaneous = objection rule=20 if the complaint could have been urged earlier.  St. Paul = Surplus=20 Lines v. Dal‑Worth Tank Co., 974 S.W.2d 51, 53 (Tex. = 1998).=20

Trial began on = February 19,=20 2004 and lasted for one day.  Testimony resumed for a second = day five=20 months later on August 4, 2004.  At the close of testimony = that day,=20 the judge said, AWe=3Dre wrapping up for = this=20 evening. You=3Dll be notified when = we reset=20 it.  I have no idea when that will be.@  The Dumlers = raised no=20 objection to this announcement.  Testimony resumed for the = third and=20 last day on April 27, 2005.  The judge concluded the day by=20 saying,

I=3Dm asking you lawyers to take a pause = again. =20 Come back next year B no.  As long [or] as little time = [as] the=20 lawyers take when they review the records, what=3Ds been admitted into evidence, = everything was=20 here. . . . Kind of clean up, if necessary, if everybody agrees on = that.  It could be tomorrow, it could be a week from = now.

Again, the Dumlers = raised no=20 objection.  Closing arguments were held in the = judge=3Ds chambers four = months later,=20 but no court reporter was present to record the arguments.  = The trial=20 court issued its ruling eight months after closing = arguments.  The=20 Dumlers objected to the time delays for the first time in their = motion for=20 a new trial.

Objecting to the = trial schedule=20 during the course of the proceedings would have given the trial = court=20 opportunity to cure any alleged error.  By waiting until = after=20 judgment was entered to object, the Dumlers=3D objection was not=20 timely.  Thus, they waived any error with respect to this=20 issue.  See Daily v.=20 Wheat, 681=20 S.W.2d 747, 758 (Tex. App._Houston=20 [14th Dist.] 1984, writ ref=3Dd n.r.e.)=20 (appellant waived issue where she did not complain of = six‑person jury=20 limitation until motion for new trial); cf. Employers = Ins. of=20 Wausau v. Horton, 797 S.W.2d 677, 680 (Tex. App._Texarkana 1990, no = writ)=20 (vacated pursuant to settlement) (appellant preserved error by = voicing=20 objection to continuing trial late into the evening, on grounds = that=20 jurors were tired, at time judge informed parties they would have = to stay=20 late); see also Pittsburgh Corning, 909 S.W.2d at 104 = (party cannot=20 wait until trial is finished and then seek to reverse an = unfavorable=20 verdict by complaining of an error which the trial court could = have=20 corrected had it been timely raised). 

Moreover, the Dumlers = have=20 failed to show any prejudice.  To reverse a judgment on the = ground of=20 judicial misconduct, we must find both judicial impropriety and = probable=20 prejudice to the complaining party.  Bott v. Bott, 962 = S.W.2d=20 626, 631 (Tex. App._Houston [14th Dist.] = 1997, no=20 pet.).  The Dumlers=3D only argument = regarding=20 prejudice is that the Astarting and stopping = of the=20 trial resulted in memory lapses on behalf of the judge as well as = an=20 arbitrary and unreasonable damages award.@  We have = already=20 determined the trial court acted within its discretion with regard = to the=20 damages award.  Further, allegations that the judge did not = remember=20 the evidence are unfounded in the record.  At the start of = the second=20 day of trial, five months after the first day, the judge stated,=20 Anot only do I = actually have a=20 real recollection, but the attorneys have been in my office = earlier, and=20 they were kind of reminding me.@  And at the = conclusion of=20 the third day of testimony, the judge attempted to reassure the = attorneys=20 about his memory of the case: AWhat I want to make = sure most=20 of all, ya=3Dll don=3Dt feel like, because = of this=20 being so disjointed, my ruling_I want to make sure I = remember=20 distinctly the things I need to.@  The trial = judge gave the=20 attorneys the opportunity to make closing arguments to emphasize=20 significant evidence.  The Dumlers have not shown any = specific=20 instance of the trial judge suffering a prejudicial memory lapse, = and the=20 record shows the judge was actively working to ensure he = remembered the=20 details.  We therefore overrule the Dumlers=3D first=20 issue.

IV.=20 Attorney=3Ds=20 Fees

In their=20 second issue, the Dumlers claim the trial court abused its = discretion by=20 rendering an arbitrary and unreasonable = award of=20 attorney=3Ds=20 fees.  The trial court awarded $10,000 in = attorney=3Ds fees,=20 but the Dumlers claim they are entitled to an award of at least=20 $30,000. 

We first=20 address Quality Work=3Ds=20 contention that the Dumlers waived attorney=3Ds fees=20 under section 38.001.  See Tex. Civ. Prac. & Rem. = Code=20 Ann. ' = 38.001=20 (Vernon 1997).  In their amended answer, the Dumlers = specifically=20 requested attorney=3Ds fees=20 under sections 10.001 and 10.004 Civil Practice and Remedies Code, = which=20 pertain to sanctions for filing frivolous pleadings.  See = id.=20 '' = 10.001,=20 10.004 (Vernon 1997).  The pleadings also request=20 attorney=3Ds fees in=20 the general prayer for relief.  Section 38.001(8) allows = recovery of=20 reasonable attorney=3Ds fees=20 when a party prevails on a breach of contract claim.  Id.=20 ' = 38.001(8).  The judgment awarded the Dumlers actual damages = for=20 breach of contract and reasonable attorney=3Ds fees in=20 the amount of $10,000 for prosecution of the case.

Quality=20 Work argues that by failing to plead for attorney=3Ds fees=20 under section 38.001, the Dumlers waived any claim for=20 attorney=3Ds fees=20 under that section.  Alternatively, Quality Work contends = that even=20 if the Dumlers did not waive their right to attorney=3Ds fees=20 under section 38.001, they did not Apresent@ = their=20 claim as required by section 38.002.[6]

<= SPAN=20 style=3D"FONT-SIZE: 13pt; LINE-HEIGHT: 150%; FONT-FAMILY: = Shruti">

In effect,=20 by arguing the Dumlers waived any right to attorney=3Ds fees=20 under section 38.001(8) and thus were not even entitled to the = $10,000 the=20 trial court awarded, Quality Work seeks to alter the trial=20 court=3Ds=20 judgment.  A=20 party seeking to alter the trial court=3Ds judgment must file = a notice=20 of appeal.  Tex. R. = App. P. 25(c); Walling v. Metcalfe, 863 S.W.2d 56, = 58 (Tex.=20 1993). =20 Because Quality Work did not file a notice of = appeal, it=20 waived this challenge.  See Lubbock = County  v. Trammel=3Ds Lubbock Bail=20 Bonds, 80=20 S.W.3d 580, 584 (Tex. 2002) (county seeking to alter trial=20 court=3Ds judgment could not = appeal=20 appellate decision to supreme court due to failure to file notice = of=20 appeal).

Quality Work also = waived error=20 with regard to its Apresentment@ argument.  To = recover=20 attorney=3Ds fees under section = 38.001,=20 the claimant must present the claim to the opposing party, who = then has=20 thirty days to tender payment.  See = Tex.=20 Civ. Prac. & Rem. Code Ann. ' 38.002(2).  = Quality Work=20 raises this argument for the first time on appeal.  Because = it did=20 not raise this claim to the trial court, Quality Work failed to = preserve=20 error on presentment.  See Tex. R. App. P. = 33.1(a); Evans=20 Cooperage of Houston, Inc. v. Port Drum Co., No. = C14‑92‑00966‑CV, 1994=20 WL 7243, at *2 (Tex. App._Houston [14th Dist.] = Jan. 13,=20 1994, writ denied) (not designated for publication).

We turn now to the=20 Dumlers=3D contention that the = award of=20 $10,000 in attorney=3Ds fees, rather than = $30,000,=20 constitutes an abuse of discretion.  We review the trial=20 court=3Ds decision to award=20 attorney=3Ds fees for abuse of=20 discretion.  Oake v. Collin County, 692 S.W.2d 454, = 455 (Tex.=20 1985).  An award of reasonable attorney=3Ds fees must be = supported by=20 some evidence.  Stewart Title Guar. Co. v. Sterling, = 822=20 S.W.2d 1, 10 (Tex. 1991).  The amount and reasonableness of=20 attorney=3Ds fees is a question = of fact=20 involving several intangible factors.  Mack v. Moore, = 669=20 S.W.2d 415, 419B20 (Tex. = App_Houston [1st Dist.] = 1984, no=20 writ).  In this case, the trial court was the trier of fact = with=20 regard to the reasonableness and amount of the = attorney=3Ds fees and must take = into=20 account various factors such as the nature and complexity of the = case, the=20 nature of the services provided by counsel, the time required for = trial,=20 the amount of money involved, the client=3Ds interest that is at = stake,=20 the responsibility imposed upon counsel, and the skill and = expertise=20 required.  Ragsdale v. Progressive Voters League, 801 = S.W.2d=20 880, 881 (Tex. 1990).  The judge could also have drawn on his = own=20 expertise in deciding how much to award.  Mack, 669 = S.W.2d at=20 420. 

The only evidence on=20 attorney=3Ds fees offered were = invoices=20 the Dumlers=3D attorney = billed. =20 The trial=20 court considered all the evidence and awarded $10,000 in=20 attorney=3Ds=20 fees.  Because the trial court had before it sufficient = evidence=20 regarding the services provided, the amount of money involved, the = time=20 required for trial, and the complexity of the case, we cannot say = that=20 this award was so arbitrary or unreasonable as to require = reversal.=20  See Dail v. Couch, 99 S.W.3d 390, 391 (Tex.=20 App.CCorpus=20 Christi 2003, no pet.) (trial court had discretion to reduce=20 attorney=3Ds fees=20 from the $8,000 prayed for to $2,500, despite uncontroverted = expert=20 testimony); Fonmeadow Prop. Owners=3D = Ass=3Dn v.=20 Franklin, 817=20 S.W.2d 104, 105 (Tex. App.CHouston=20 [1st Dist.] 1991, no writ) (attorney=3Ds fees=20 award affirmed, even though party offered proof of higher amount = at trial,=20 because trial judge could find some fees claimed were unreasonable = or=20 unwarranted or other circumstances making an award in amount = prayed for=20 wrong).  We conclude the trial court did not abuse its = discretion in=20 awarding $10,000 attorney=3Ds=20 fees.  We overrule the Dumlers=3D = second=20 issue.

We affirm=20 the trial court=3Ds=20 judgment.

 

/s/     =20 Leslie B. Yates

Justice        =20

 

Judgment rendered = and=20 Memorandum Opinion filed January 10, 2008.

Panel consists of = Justices=20 Yates, Fowler, and Guzman.


[1]  Tri-Way did not file an appellee=20 brief.

[2]  At the close of the = third day=20 of testimony, the trial court sustained Quality Work=3Ds request for a = directed=20 verdict on the claims for fraud and misrepresentation.  The = trial=20 court did not rule on the Dumlers=3D other causes of=20 action.  Neither party requested and the trial court did not = enter=20 findings of fact or conclusions of law.

[3]  The Dumlers=3D estimates ranged from $3,455 to = $4,190. =20 Davidson=20 testified that $2,400 was reasonable to repair the tile walls and = $1,000=20 to $1,500 was reasonable for repairing the tile floor (excluding = the cost=20 of materials).

[4]  Quality Work = charged $17,750=20 to install tile in the master bathroom and another $11,600 for = molding and=20 trim work.

[5]  The Dumlers first objected to the = manner in=20 which the trial was being conducted in their motion for new=20 trial.

[6]  To recover attorney=3Ds fees under this chapter:

(2) the claimant must present the claim = to the=20 opposing party or to a duly authorized agent of the opposing = party;=20 and

(3) payment for the just amount owed = must not have=20 been tendered before the expiration of the 30th day after the = claim is=20 presented.

Tex.=20 Civ. Prac. & Rem. Code Ann.=20 ' 38.002 (Vernon=20 = 1997).

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