Reversed =
and Remanded=20
and Majority Opinion and Concurring and Dissenting Opinion filed =
March 6,=20
2008.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-06-00714-CV
____________
GRAYBAR=20
ELECTRIC CO., INC., =
Appellant
V.
LEM &=20
ASSOCIATES, L.L.C., =
Appellee
On Appeal from the =
165th District Court
Harris County, =
Texas
Trial Court Cause =
No. 04-14628
C O N C U=20
R R I N G A N D D I S S E N T I N G O P I =
N I O=20
N
I respectfully concur =
in part=20
and dissent in part.
I agree with the =
Majority=20
Opinion up to the disposition of Graybar=3Ds 13th issue dealing =
with=20
attorney=3Ds fees. In my =
opinion, if=20
the trial court erred, the error was harmless, and accordingly=20
Graybar=3Ds 13th issue should =
be=20
overruled.
The portion of the =
Majority=20
Opinion with which I concur holds that the Change Order is the =
contract,=20
and that Lem is entitled to full recovery of all amounts due under =
the=20
contract. Graybar is not entitled to any offsets. =
Graybar owes=20
Lem 100% of the amounts due under the contract. Accordingly, =
Graybar=20
is not a Aprevailing =
party@ in any sense of the =
term. As=20
a matter of law, Graybar is not entitled to recover =
attorney=3Ds fees. =
The trial =
court=3Ds judgment does not =
award=20
Graybar any attorney=3Ds fees, and therefore =
the trial=20
court=3Ds judgment is correct =
in this=20
regard. If, as the Majority Opinion states, the trial court =
arrived=20
at this correct result in an incorrect manner, then the trial=20
court=3Ds error is clearly=20
harmless. See Tex. R.=20
App. P. 44.1(a).
We should overrule=20
Graybar=3Ds 13th =
issue.
/s/ =20
Margaret Garner Mirabal
Senior=20
Justice
Judgment rendered =
and=20
Majority Opinion and Concurring and Dissenting Opinion filed March =
6,=20
2008.
Panel=20
consists of Justices Anderson, Frost, and Mirabal. (Anderson,=20
J., concurring without opinion) (Frost, J.,=20
majority).
With=20
regard to the $100,000 judgment on Graybar=3Ds =
counterclaim, the=20
Majority Opinion correctly recognizes that the $100,000 Acredit@ contained =
in the=20
Change Order cancels out the $100,000 award in the =
counterclaim. =20
Graybar owes the full amount due under the Change Order, and is =
not=20
entitled to any offsets or credits to lessen its contract =
obligations=20
under the Change Order. The counterclaim judgment is =
effectively=20
meaningless. Graybar is not a prevailing party.
=
Rule 44.1=20
Reversible Error in Civil Cases.
(a) Standard =
for=20
reversible error. No judgment may be reversed on appeal on the =
ground=20
that the trial court made an error of law unless the court of =
appeals=20
concludes that the error complained of:
(1)probably caused =
the=20
rendition of an improper judgment; or
(2)probably =
prevented the=20
appellant from properly presenting the case to the court of =
appeals.
Tex. R.=20
App. P. 44.1(a).
Senior=20
Justice Margaret Garner Mirabal sitting by=20
assignment. |