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Reversed and Remanded and Majority = Opinion and=20 Concurring and Dissenting Opinion filed March 6, = 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

 

 

M A J O R=20 I T Y   O P I N I O N[1]

A company=20 contracted to sell a power generation system, including a=20 manufacturer=3Ds=20 warranty, to a second company for sale to a third company to be = used in a=20 United States Army project in the Iraqi desert.  The seller = sued the=20 first buyer for amounts allegedly owed under the sales contract, = and the=20 first buyer counterclaimed. The trial court rendered judgment that = (1) the=20 seller recover $3.35 million plus prejudgment and postjudgment = interest=20 and attorney=3Ds fees,=20 and (2) the first buyer recover $100,000 plus prejudgment and = postjudgment=20 interest on its counterclaim.  We conclude the trial evidence = is=20 legally and factually sufficient to support the trial = court=3Ds denial=20 of a credit or affirmative award based on the seller=3Ds failure=20 to provide the manufacturer=3Ds=20 warranty.  We conclude the trial evidence is legally and = factually=20 insufficient to support the trial court=3Ds=20 conclusion that a change order between the seller and the first = buyer is=20 void based on failure of consideration, fraudulent inducement, or=20 duress.  Based on the change order, the evidence conclusively = proves=20 the first buyer is entitled to credits that substantially reduce = the=20 judgment in favor of the seller.  Because the = seller=3Ds recovery=20 is being significantly reduced on appeal, we reverse the judgment = in favor=20 of the seller and remand to the trial court with instructions to = render=20 judgment in favor of the seller for the lower amount as well as = the=20 attorney=3Ds fees and=20 interest hereafter found by the trial court following further=20 proceedings.  Because the trial court erroneously failed to = award any=20 attorney=3Ds fees to=20 the first buyer based on its unchallenged recovery on its contract = counterclaim, we reverse and remand with instructions for the = trial court=20 to determine the reasonable attorney=3Ds fees for=20 this counterclaim.

           = ;            = =20 I.  Factual and = Procedural=20 Background

In 2003,=20 as part of its work for the United States Army in Iraq, Kellogg = Brown=20 & Root Services, Inc. (hereinafter AKellogg@)=20 contracted with appellant Graybar Electric Co., Inc. (AGraybar@) for the=20 purchase of a Pratt & Whitney FT8 Twin Pack System Turbine = package=20 (hereinafter ATwin=20 Pack@), along=20 with related goods and services, to be deployed as a power = generation=20 system in the Iraqi desert.  Graybar contracted with appellee = LEM=20 & Associates, L.L.C. (hereinafter ALEM@) for the=20 purchase of a Twin Pack.  LEM is a supplier of = electric-generating=20 equipment, owned by Lee Mathieu.  LEM, in turn, had a = contract to=20 purchase a Twin Pack from Ron Bigham d/b/a Green Power Energy = (hereinafter=20 ABigham@). =20 Bigham had a contract to buy a Twin Pack from Allegheny Energy for = $8=20 million. 

Under its=20 contract with Kellogg, Graybar was required to arrange for Pratt = &=20 Whitney to provide a warranty covering the Twin Pack and lasting = until one=20 year from the synchronization of the Twin Pack or 18 months from = delivery,=20 whichever came first (hereinafter AWarranty@). =20 Under its contract with Graybar, LEM was required to provide such = a=20 warranty.  Under hurried and somewhat chaotic circumstances, = LEM sold=20 the Twin Pack to Graybar but did not provide the Warranty.  = Graybar=20 received the Twin Pack and started loading and shipping it out of = the=20 country on August 7, 2003.  One week later, Pratt & = Whitney=20 notified Graybar that, due to the drastically different operating=20 environment in the Iraqi desert, Pratt & Whitney was not = willing to=20 simply consent to the assignment of the existing warranty from=20 Allegheny.  Within two weeks, Pratt & Whitney gave = Graybar a=20 proposal for a warranty covering the Twin Pack, which would cost=20 $703,000.  Despite the proposal, no party ever purchased a = warranty=20 from Pratt & Whitney that would cover the Twin Pack in = Iraq. =20 Graybar, however, did contract with Pratt & Whitney to provide = various=20 services, including technical services and oversight at a cost of=20 $998,100, that Graybar claims were required to make the Twin Pack=20 warrantable. 

While=20 there had been disagreement between Graybar and LEM as to what was = being=20 purchased under the contract and at what price, on or about = September 3,=20 2003, Graybar and LEM signed a letter agreement containing a = change order=20 (hereinafter AChange=20 Order@), which=20 stated that the original contract price was $12,102,000 and that=20 deductions should be made from this price for the = following:

(1) =     a $2=20 million payment that Graybar made directly to Allegheny to obtain = release=20 of the Twin Pack,

(2) =     a=20 black start generator,

(3) =     costs=20 to convert the Twin Pack from 60 Hz to 50 Hz, and

(4)=20     the cost of gas compression skids.

After=20 making these deductions from the contract price under the Change = Order and=20 after subtracting the $6,150,000 that Graybar already has paid = LEM, the=20 amount outstanding  would be $2,671,456. 

Before the=20 Twin Pack was commissioned and started up, the United States Army=20 suspended the project. 

LEM filed=20 this suit against Graybar.  Graybar counterclaimed against = LEM and=20 filed third-party claims that are not relevant to this = appeal.  After=20 a bench trial, the trial court rendered judgment in favor of LEM = and=20 against Graybar in the amount of $3.35 million plus prejudgment = interest,=20 postjudgment interest, attorney=3Ds fees and=20 costs.  The trial court also rendered judgment in favor of = Graybar in=20 the amount of $100,000 on its counterclaim for Acommission=20 costs@ = plus=20 prejudgment interest, postjudgment interest, and costs.[2] =20

The trial=20 court issued findings of fact and conclusions of law, stating, = among other=20 things, the following:

!      =20 On July 29, 2003, LEM sent Graybar a pro forma invoice for a Twin = Pack=20 with an invoice price of $11.5 million.

!      =20 Subsequently, LEM represented that the Twin Pack would have an = extended=20 Pratt & Whitney warranty against certain defects for a period = of 18=20 months from sale or one year from commissioning, whichever = occurred=20 first. 

!      =20 On or about August 7, 2003, Graybar accepted LEM=3Ds pro forma invoice = dated=20 July 30, 2003, requiring a 50% initial payment with = Graybar=3Ds purchase order, = 40% before=20 shipment, and 10% at commissioning.[3] =20 This invoice was amended by a pro forma invoice dated August 5,=20 2003. 

!      =20 LEM agreed to convert the Twin Pack from 60 Hz to 50 Hz; however,=20 LEM=3Ds failure to make = this=20 conversion was excused by Graybar=3Ds act of moving the = equipment=20 out of the country without giving LEM the required amount of time = to=20 accomplish the conversion.[4]

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!      =20 LEM=3Ds failure to = provide the=20 Pratt & Whitney warranty and failure to accomplish the = conversion are=20 excused by Graybar=3Ds obtaining the = consent of=20 LEM to pay Allegheny directly, concealing the fact that Graybar = would be=20 obtaining a bill of sale directly from Allegheny for the purpose = of=20 evading its payment obligations to LEM.  Graybar did not pay = LEM the=20 amounts it owed to LEM.  Though LEM offered to pay up to $1 = million=20 for a Pratt & Whitney warranty, Graybar did not accept this=20 offer. 

!      =20 Even if LEM=3Ds performance had = not been=20 excused, the court found that Graybar only suffered a loss in the = amount=20 of $100,000, which the trial court found was the commercially = reasonable=20 cost of performing the conversion from 60 Hz to 50 Hz in the = United=20 States. 

!      =20 The issue of the warranty is Amoot@ because Graybar = never=20 purchased a warranty for the Twin Pack and because, even if LEM = had=20 provided a warranty at the time of sale, the warranty would have = expired=20 by February 2005, and there is no evidence of any defects that = would have=20 given rise to a warranty claim during the time period in which the = warranty would have been in effect.

!      =20 The consideration for LEM to enter into the Change Order was that = LEM=20 would be promptly paid the amount owed by Graybar to LEM on the = purchase=20 order.  Because that did not occur, the consideration = failed. =20 In addition, the evidence shows that Graybar had no intention of = making=20 such Aprompt@ payments at the = time the=20 Change Order was executed and only made such a representation to = secure=20 LEM=3Ds signature to the = Change=20 Order.  LEM relied on this representation.

!      =20 In this sale of goods between two merchants, Graybar accepted=20 LEM=3Ds offer to sell the = Twin Pack=20 with the Warranty, and the conversion services, all for a total of = $11.5=20 million, with 50% due on contracting, 40% due on shipping, and 10% = upon=20 commissioning. 

!      =20 Although article 2 of the Uniform Commercial Code governs the = contract=20 between Graybar and LEM, the common law governs the Change=20 Order.   Graybar obtained the execution of the Change=20 Order  from LEM by misrepresentations, upon which LEM relied = to its=20 detriment.  The Change Order is void due to failure of = consideration,=20 fraudulent inducement, and/or duress on the part of Graybar.  =

!      =20 Graybar is entitled to no damages or credits other than a credit = of=20 $100,000, and after applying this credit, LEM is entitled to = judgment=20 against Graybar for breach of contract in the amount of $3.25 = million.[5]

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!      =20 Graybar=3Ds=20 counterclaims concerning warranty on the generator fail because = the issue=20 is moot; the counterclaims also fail due to waiver and = estoppel. =20

Graybar=20 has appealed, asserting fourteen issues.  LEM has not=20 appealed.

           = ;            =       =20 II.  Standards = of=20 Review

Because=20 findings of fact in a bench trial have the same force and dignity = as a=20 jury verdict, we review them for legal and factual sufficiency of = the=20 evidence under the same standards we apply in reviewing a = jury=3Ds=20 findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.=20 1994). 

When=20 reviewing the legal sufficiency of the evidence, we consider the = evidence=20 in the light most favorable to the challenged finding and indulge = every=20 reasonable inference that would support it.  City of = Keller v.=20 Wilson, 168 S.W.3d 802, 823 (Tex. 2005).  We must credit=20 favorable evidence if a reasonable factfinder could and disregard = contrary=20 evidence unless a reasonable factfinder could not.  See = id. at=20 827.  We must determine whether the evidence at trial would = enable=20 reasonable and fair-minded people to find the facts at = issue.  See=20 id.  The factfinder is the only judge of witness = credibility and=20 the weight to give to testimony.  See id. at = 819. =20

When=20 reviewing a challenge to the factual sufficiency of the evidence, = we=20 examine the entire record, considering both the evidence in favor = of, and=20 contrary to, the challenged  finding.  Cain v. = Bain, 709=20 S.W.2d 175, 176 (Tex. 1986).  After considering and weighing = all the=20 evidence, we set aside the fact finding only if it is so contrary = to the=20 overwhelming weight of the evidence as to be clearly wrong and=20 unjust.  Pool v. Ford Motor Co., 715 S.W.2d 629, 635 = (Tex.=20 1986).  The trier of fact is the sole judge of the = credibility of the=20 witnesses and the weight to be given to their testimony. GTE = Mobilnet=20 of S. Tex. v. Pascouet, 61 S.W.3d 599, 615B16 (Tex.=20 App.CHouston=20 [14th Dist.] 2001, pet. denied).  We may not substitute our = own=20 judgment for that of the trier of fact, even if we would reach a = different=20 answer on the evidence.  Maritime Overseas Corp. v. = Ellis, 971=20 S.W.2d 402, 407 (Tex. 1998).  The amount of evidence = necessary to=20 affirm a judgment is far less than that necessary to reverse a=20 judgment.  Pascouet, 61 S.W.3d at 616.

           = ;            =             &= nbsp;    =20 III.  Issues and = Analysis

A.     =20 Did the=20 trial evidence conclusively prove the seller=3Ds failure to = provide a=20 manufacturer=3Ds warranty resulted = in=20 $1,701,100 in damages to the buyer?

First, we=20 conclude that the sale of goods is the essence or dominant factor = of the=20 contract between LEM and Graybar; therefore, article 2 of the = Uniform=20 Commercial Code  (AUCC@) applies=20 to this contract.[6] =20 See Tex. Bus. = & Com.=20 Code Ann. ' = 2.102=20 (Vernon 1994) (stating that article 2 of the UCC applies to = transactions=20 in goods); Continental Casing Corp. v. Siderca Corp., 38 = S.W.3d=20 782, 787 (Tex. App.CHouston=20 [14th Dist.] 2001, no pet.) (holding that, if a contract contains = a mix of=20 sales and services, article 2 of the UCC applies if the sale of = goods is=20 the Adominant=20 factor@ = or=20 Aessence@ = of the=20 transaction).  Therefore, we are faced with a relatively = unusual=20 situation in which the seller delivers the principal good that is = the=20 focus of the article 2 contract but does not deliver a required=20 manufacturer=3Ds warranty=20 for that good. 

Graybar=20 seeks to recover an affirmative claim or a credit of $1,701,100 = based on=20 LEM=3Ds failure=20 to provide the Warranty.  This is not an instance of a breach = of=20 warranty; rather, it is a breach of a promise to provide a = warranty. =20 In such a circumstance, various measures of damages might be=20 appropriate.  In some cases, a benefit-of-the-bargain measure = of=20 damages might be the best choice because it would give the buyer = the=20 difference between the market value of the good with the warranty = and the=20 market value of the good without the warranty.  See = Allstate Ins.=20 Co. v. Furr, 449 S.W.2d 295, 298 (Tex. App.CAmarillo=20 1970, writ ref=3Dd=20 n.r.e.).  In this case, however, the contract does not = allocate the=20 purchase price so as to provide a specific price for the = warranty. =20 Furthermore, there is no evidence as to the difference, if any, = between=20 the market value of the good with the warranty and the market = value of the=20 good without the warranty, and Graybar did not seek recovery based = on this=20 measure in the trial court. 

The=20 Warranty would have expired by March 2005.  If a claim had = arisen=20 during the period that would have been covered by the Warranty, = Kellogg=20 might have sought to recover against Graybar the damage it = incurred=20 because of the absence of the Warranty, and Graybar could have = sought this=20 same claim against LEM.  See, e.g., Voisin v. = O.D.E.C.O.=20 Drilling Co., 744 F.2d 1174, 1179 (5th Cir. 1984) (holding = that party=20 who breaches promise to obtain insurance for other party is liable = for=20 breach-of-contract damages for the amount that would have been = covered by=20 the insurer had the insurance been obtained).  In this case, = as noted=20 by the trial court, there is no evidence that anything occurred = that would=20 have triggered coverage under the Warranty.[7] =20 Graybar sold the Twin Pack to Kellogg in August 2003, and there is = no=20 evidence in the record that Kellogg has asserted a deduction, = claim, or=20 charge against Graybar based Graybar=3Ds failure=20 to provide the Warranty. 

Under its=20 third issue, Graybar argues that the trial court erred in not = awarding it=20 a credit or affirmative award for $998,100.  Before the = United States=20 Army suspended the project, Graybar contracted with Pratt & = Whitney=20 for  technical services and oversight at this price.  = Graybar=20 asserts that it was trying to remedy LEM=3Ds failure=20 to provide the Warranty and that Pratt & Whitney required that = it=20 perform these services before it would issue the Warranty.  = The=20 record contains copies of emails sent by Pratt & Whitney = before August=20 27, 2003, indicating that, for Pratt & Whitney to provide a = Warranty=20 to the new owner of the Twin Pack, Pratt & Whitney would need = to (1)=20 inspect the Twin Pack to determine if it had been stored and = shipped in=20 accordance with Pratt & Whitney procedures, (2) review the=20 installation of the Twin Pack to confirm compliance with Pratt = &=20 Whitney procedures, and (3) witness the start-up of the Twin = Pack. =20 These emails do not state how much Pratt & Whitney=3Ds services=20 in this regard would cost.  In a letter dated August 27, = 2003, Pratt=20 & Whitney submitted to Garybar a proposal for the following=20 services:

Technical=20 Services and Oversight on a Consultant Basis to assist=20 [Graybar=3Ds] people=20 in installing the equipment in Iraq.  This price is for four = people=20 to support construction and start up of our equipment.  The = total=20 days for this activity is 210 man days. . . . This is for one site = manager=20 to be in Iraq for 70 days, an electrical advisor to be in Iraq for = 49=20 days, a mechanical advisor to be in Iraq for 42 days[,] and a = start-up=20 engineer to be in Iraq for 49 days . . . .

Pratt=20 & Whitney stated it would charge Graybar $998,100 for these = services=20 (hereinafter ATechnical=20 Services@). =20 In the August 27, 2003 letter, Pratt & Whitney did not state = that=20 performance of the Technical Services was necessary for Pratt = &=20 Whitney to provide the Warranty; however, Pratt & Whitney does = state=20 that a quote for the Warranty has been provided under a separate = proposal=20 that Aaddresses=20 all the technical and commercial conditions.@  In=20 this separate proposal for the Warranty, Pratt & Whitney does = not=20 state that its proposal to provide the Warranty for $703,000 is = contingent=20 on its provision of any services or upon the items stated in the = prior=20 emails.  In its purchase order accepting Pratt=20 &Whitney=3Ds proposal=20 to provide the Technical Services, Graybar describes the Technical = Services as ACommissioning,=20 Start-up and Technical Support,@ = and=20 Graybar does not state that Pratt & Whitney required Graybar = to retain=20 Pratt & Whitney to perform the Technical Services before it = would=20 issue the Warranty.  Likewise, in the invoices for the = Technical=20 Services, Pratt & Whitney does not state that these services = are=20 related to the Warranty. 

During the=20 time of the Twin Pack transaction, Morgan McDaniel was a Graybar = employee=20 working on this transaction.  At trial, McDaniel described = the=20 Technical Services as Aoversight=20 on a consultant basis to assist in installing of equipment in=20 Iraq.@  The=20 following day, McDaniel testified that Bigham=3Ds counsel=20 was mistaken when he understood McDaniel=3Ds=20 testimony the day before to be talking about the Warranty issue = with Pratt=20 & Whitney.  McDaniel testified that he did not testify = the day=20 before that Pratt & Whitney was paid Aa whole=20 bunch of money in connection with this warranty issue.@

Graybar=20 cites testimony from Phil Collins of ECP Tech Services, a = contractor hired=20 by Graybar.  Collins testified that Graybar paid $998,100 for = Pratt=20 & Whitney to provide technical supervision.  Collins = stated that=20 Pratt & Whitney was providing a warranty and, with that, they = were=20 going to have Aa certain=20 number of spare parts to do,@ = and they=20 want to make sure the installation would be done properly.  = Collins=20 testified that Pratt & Whitney sent Aa guy over=20 there to make sure that the foundations are right, that the = turbines are=20 set right, that the alignment is good.@ =20 Collins stated that Pratt & Whitney, as a matter of risk = mitigation,=20 would oversee everything Ato make=20 sure that when you turn [the Twin Pack] on[,] it=3Ds in good=20 shape.@ =20 Graybar also cites testimony from its expert John Scott regarding = the=20 Pratt & Whitney proposal to provide services for = $998,100.  Scott=20 testified that Pratt & Whitney would want to do inspecting or=20 supervision before it would issue a warranty, as an assurance that = the=20 equipment had been installed, commissioned, and started up = properly. =20 Gregg Rogers of Graybar testified that Graybar paid Pratt & = Whitney=20 $998,100 Ato get it=20 warrantable.@ =20 None of these witnesses testified that Pratt & Whitney = required that=20 it be paid $998,100 for these services before it would issue the=20 Warranty.  Even if they had so testified, the trial court, as = fact=20 finder, was free to disbelieve this testimony.[8] =20 Pascouet, 61 S.W.3d at 615B16. =20

Under the=20 applicable standards of review, we conclude that the evidence is = legally=20 and factually sufficient to support the trial court=3Ds decision=20 not to award any damages based on the $998,100 that Graybar paid = to Pratt=20 & Whitney.  Pascouet, 61 S.W.3d at 615B16=20 (concluding evidence was legally and factually sufficient to = support=20 certain damage findings).

As to=20 Pratt & Whitney=3Ds proposal=20 to provide a warranty covering the Twin Pack for $703,000, Graybar = did not=20 purchase this warranty.  While Graybar was not required to = cover in=20 order to recover damages, this proposal does not require the trial = court=20 to award $703,000 as damages for LEM=3Ds failure=20 to provide the Warranty.  Unlike the Twin Pack Warranty that = Pratt=20 & Whitney had given Allegheny, the warranty proposed in the = quote=20 limited Pratt & Whitney=3Ds=20 aggregate liability to $703,000.  As stated above, Graybar = promptly=20 sold the Twin Pack to Kellogg and did not show that it incurred = any=20 liability to Kellogg based on the failure to provide the = Warranty. =20 Graybar did not prove up any benefit-of-the-bargain damages.  = Graybar=20 elected not to purchase a warranty from Pratt & Whitney. Under = the=20 applicable standards of review, presuming without deciding that = the=20 evidence is legally insufficient to support the trial = court=3Ds findings=20 that LEM is excused from providing the Warranty, we conclude that = the=20 evidence is legally and factually sufficient to support the trial=20 court=3Ds decision=20 not to award Graybar any damages based on LEM=3Ds failure=20 to provide the Warranty.[9] =20 Pascouet, 61 S.W.3d at 615B16=20 (concluding evidence was legally and factually sufficient to = support=20 certain damage findings).  Accordingly, we overrule=20 Graybar=3Ds third=20 issue.

B.     =20 Are the=20 trial court=3Ds findings=20 that the Change Order is void due to failure of consideration, = fraudulent=20 inducement, and duress supported by legally sufficient evidence?=20

In its=20 fifth, eighth, ninth, tenth, and eleventh issues, Graybar = challenges the=20 trial court=3Ds failure=20 to give Graybar credits under the Change Order.  The trial = court=20 noted that  the Change Order, on its face, would lower the = amount=20 Graybar owes LEM; however, the trial court found that the Change = Order is=20 void based on failure of consideration, fraudulent inducement, and = duress.[10] =20 Graybar asserts that the trial evidence is legally insufficient to = support=20 the trial court=3Ds findings=20 in this regard.

Although=20 the trial court correctly concluded that the sale of the Twin Pack = was a=20 transaction governed by article 2 of the UCC, the trial court = erroneously=20 concluded that common law governs Graybar=3Ds purchase=20 order for the Twin Pack and the Change Order signed by the parties = regarding this transaction.[11] =20 See Tex. Bus. = & Com.=20 Code Ann. ' = 2.102;=20 Continental Casing Corp., 38 S.W.3d at 787.  The sale = of goods=20 is the essence or the dominant factor of the Change Order; = therefore,=20 article 2 applies to the Change Order.  See Tex. Bus. & Com. Code = Ann.=20 ' = 2.102;=20 Continental Casing Corp., 38 S.W.3d at 787.  Under = article 2,=20 no consideration is needed for an agreement that modifies an = article 2=20 contract.  See Tex.=20 Bus. & Com. Code Ann. ' = 2.209;=20 El Paso Natural Gas Co. v. Minco Oil & Gas, Inc., 8 = S.W.3d 309,=20 314 (Tex. 1999).  LEM asserts that, even if the UCC governs = the=20 Change Order, it is still a legal nullity because it purports to = modify=20 Graybar=3Ds prior=20 purchase order; whereas the trial court found LEM=3Ds July 30,=20 2003 and August 5, 2003 pro forma invoices represented the=20 parties=3D = contract.  The Change Order refers to both = Graybar=3Ds purchase=20 order and to LEM=3Ds July 30,=20 2003 pro forma invoice.  Under the unambiguous language of = the Change=20 Order, LEM and Graybar agree that adjustments should be made to = the amount=20 of Graybar=3Ds=20 obligation under the sale-of-goods contract already existing = between the=20 parties.  Therefore, as a matter of law, the Change Order = falls under=20 section 2.209, and no consideration is needed for it.  = See=20 Tex. Bus. & Com. = Code=20 Ann. ' = 2.209;=20 El Paso Natural Gas Co., 8 S.W.3d at 314.  Under the=20 applicable standard of review, we conclude the trial evidence is = legally=20 insufficient to support the trial court=3Ds finding=20 that the Change Order is void because the consideration for the = Change=20 Order failed.

Regarding=20 the trial court=3Ds duress=20 finding, first, LEM did not plead duress.  See Tex. R. Civ. P. 94 = (stating that=20 duress is an affirmative defense that must be pleaded). =20 Second,  as a matter of law, there can be no claim of duress = unless=20 the following elements are present:  (1) a threat or action = was taken=20 without legal justification; (2) the threat or action was of such = a=20 character as to destroy the other party=3Ds free=20 agency; (3) the threat or action caused the opposing = party=3Ds free=20 will to be overcome and caused the other party to do that which it = would=20 not otherwise have done and was not legally bound to do; (4) the = restraint=20 was imminent; and (5) the opposing party had no present means of=20 protection.  McMahan v. Greenwood, 108 S.W.3d 467, 482 = (Tex.=20 App.CHouston=20 [14th Dist.] 2003, pet. denied).  Under the applicable = standard of=20 review, the trial evidence is legally insufficient to support the = trial=20 court=3Ds implied=20 finding of these five elements as to the execution of the Change=20 Order.

Regarding=20 the trial court=3Ds=20 fraudulent-inducement finding, the trial court necessarily found, = among=20 other things, that (1) Graybar made a material representation that = was=20 false;  (2) Graybar knew the representation was false or made = it=20 recklessly as a positive assertion without any knowledge of its = truth; (3)=20 Graybar intended to induce LEM to act upon the representation by = signing=20 the Change Order;  and (4) LEM actually and justifiably = relied upon=20 the representation.  See Haase v. Glazner, 62 S.W.3d = 795,=20 798B99 (Tex.=20 2001); Coastal Bank SSB v. Chase Bank of Texas, N.A., 135 = S.W.3d=20 840, 843 (Tex. App.CHouston=20 [1st Dist.] 2004, pet. denied).  

In its=20 appellate briefing, LEM asserts that a Graybar representative = unknown to=20 Mathieu met Mathieu in Graybar=3Ds Houston=20 office and falsely promised that Graybar would immediately pay LEM = approximately $2.8 million if Mathieu signed the Change = Order.  LEM=20 argues that based on this representation and in light of a recent=20 conference call and Mathieu=3Ds fear=20 that Graybar would never pay what it owed, Mathieu signed the = Change Order=20 because he was willing to take on additional obligations in = exchange for=20 Graybar=3Ds alleged=20 promise of immediate payment of $2.8 million.  However, the = only=20 evidence of this alleged misrepresentation is Mathieu=3Ds=20 testimony that while he was at Graybar=3Ds Houston=20 office in September 2003, a woman, whom he thought was Silvia = Gatrell,[12]=20 appeared and said, AI need you=20 to come with me.  We have a document that you need to=20 sign.@ =20 Mathieu testified that he went with her to another office, and she = presented him with the Change Order.  Mathieu then testified = as=20 follows:

And she asked me to = sign=20 that.  I said, [A]Am I going to get=20 paid,[@] >cause I thought she = was=20 Silvia Gatrell.  She had it signed by Silvia Gatrell.  = And she=20 said yes.  I said, [A]We=3Dll get paid right = off of=20 this?[@] She said, = [A]Yes.[@]  Well, I = looked at=20 this and I saw what they had there and I saw, you know, 88.  = [sic]=20 We=3Dre going to get 2.8 = million=20 dollars on it right off, I=3Dll sign it.  = No legal=20 fees.  Nothing. We=3Dll do it.  =

Mathieu=20 testified that his state of mind concerning the signing of the = document=20 was that he would get paid immediately.  In sum, the only = possible=20 evidence of fraudulent inducement is that a woman whom Mathieu did = not=20 know but whom he thought was Silvia Gatrell (1) asked him to sign = the=20 Change Order, (2) told he him was going to get paid, and (3) told = him he=20 was going to Aget paid=20 right off of this.@ =20 Based on these three statements and after looking at the Change = Order,=20 Mathieu believed he would be paid $2.8 million immediately, and so = he=20 decided to sign the Change Order. 

LEM claims=20 a reasonable factfinder could conclude that this woman = fraudulently=20 induced Matthieu to sign the Change Order because Aright=20 off@ = is an=20 adverb meaning Aright=20 away@ = or=20 Aimmediately.@ =20 However, the record evidence is that the unknown woman used = Aright=20 off@ = in a=20 prepositional manner, indicating that Mathieu would be paid = Aright off=20 of [the Change Order].@ =20 Under the applicable legal standard, the trial evidence is legally = insufficient to support the trial court=3Ds finding=20 that this woman made a material representation that she knew was = false or=20 made a representation recklessly as a positive assertion without = any=20 knowledge of its truth.  In any event, even if this woman had = made a=20 false representation with scienter, under the applicable legal = standard,=20 the trial evidence is legally insufficient to support the trial=20 court=3Ds finding=20 that Mathieu justifiably relied upon this representation. =20 Bennett v.=20 Cochran, No.=20 14-00-01160-CV, 2004 WL 852298, at *6 (Tex. App.CHouston [14th Dist.] = Apr. 22,=20 2004, no pet.) (holding in memorandum opinion that, as a matter of = law,=20 there was no evidence to support the jury=3Ds finding that=20 plaintiff=3Ds reliance was = justifiable);=20 Atlantic Lloyds Ins. Co. v. Butler, 137 S.W.3d 199, = 226B27 (Tex. = App.CHouston [1st Dist.] = 2004, pet.=20 denied) (affirming summary judgment as to fraud claim because = there was no=20 genuine issue of material fact as to whether the = plaintiff=3Ds alleged reliance = was=20 justifiable); Beal Bank,=20 S.S.B. v. Schleider, 124=20 S.W.3d 640, 651B52 (Tex.=20 App.CHouston=20 [14th Dist.] 2003, pet. denied) (holding that there was no = evidence to=20 support jury=3Ds finding=20 that plaintiff=3Ds alleged=20 reliance on lender=3Ds alleged=20 statements was justifiable); Bluebonnet Sav. Bank, F.S.B. v. = Grayridge=20 Apartment Homes, Inc., 907 S.W.2d 904, 909 (Tex. = App.CHouston [1st Dist.] = 1995, writ=20 denied) (holding there was no evidence to support jury=3Ds finding that = alleged reliance=20 by borrower on alleged oral assurances by lender that loan = restructuring=20 proposal would be accepted was justifiable). =

Because=20 the evidence is legally insufficient to support the three bases on = which=20 the trial court concluded that the Change Order is void, the trial = court=20 should have calculated the amount outstanding based on the Change = Order,=20 which would have resulted in an amount outstanding of = $2,671,456.[13] =20 Accordingly, we sustain Graybar=3Ds fifth,=20 eighth, ninth, tenth, and eleventh issues.[14]

C.     =20 Should=20 the attorney=3Ds fees award in = favor of LEM=20 be remanded for further proceedings in light of the reduction in=20 LEM=3Ds recovery? =

Graybar=20 argues that, if this court significantly reduces LEM=3Ds=20 recovery, then this court should reverse the award of = attorney=3Ds fees in=20 favor of LEM.  We agree.  Because this court is not = reasonably=20 certain that the trial court=3Ds=20 attorney=3Ds fees=20 award was not significantly affected by its error in awarding LEM = $3.35=20 million, we sustain Graybar=3Ds twelfth=20 issue, reverse the attorney=3Ds fee=20 award in favor of LEM, and remand for a new trial as to the amount = of=20 attorney=3Ds fees LEM=20 should be awarded.  See Young v. Qualls, 223 S.W.3d = 312,=20 314B15=20 (Tex.  2007) (per curiam).

D.     =20 Did the=20 trial court err by not awarding Graybar = attorney=3Ds fees=20 based on the trial court=3Ds award of=20 $100,000 to Graybar under Graybar=3Ds=20 counterclaim?

In its=20 thirteenth issue, Graybar asserts the trial court erred in not = awarding=20 Graybar Chapter 38 attorney=3Ds fees=20 based on Graybar=3Ds recovery=20 of $100,000 under its counterclaim.  After rendering judgment = that=20 Graybar recover $100,000 on its counterclaim, the trial court = issued=20 findings of fact and conclusions of law that indicate Graybar = should take=20 nothing on its counterclaim, either because the trial court found = that=20 LEM=3Ds=20 obligation to convert the Twin Pack from 60 Hz to 50 Hz was = excused or=20 because, even if LEM=3Ds=20 performance was not excused, the $100,000 should be applied as a = credit=20 against LEM=3Ds contract=20 claim.  The trial court did not change its judgment after it = issued=20 these findings and conclusions.  In any event, in its = judgment, the=20 trial court awarded Graybar $100,000.  On appeal, Graybar has = not=20 sought to change this $100,000 into a credit against = LEM=3Ds contract=20 claim.  See Tex. R.=20 App. P. 38.1(e); Texas Nat=3Dl Bank v.=20 Karnes, 717=20 S.W.2d 901, 903 (Tex. 1986) (holding that Athe court=20 of appeals may not reverse a trial court=3Ds judgment=20 in the absence of properly assigned error@). =20 LEM has = not sought=20 this relief on appeal either; indeed, it could not because it has = not=20 appealed the trial court=3Ds judgment.  = See Brooks=20 v. Northglen Ass=3Dn, 141 S.W.3d 158, 171 = (Tex.=20 2004).  Therefore,=20 this court cannot disturb the trial court=3Ds judgment=20 awarding Graybar $100,000 on its counterclaim,[15]=20 and, based on this award, Graybar asserts the trial court was = required to=20 award Graybar attorney=3Ds fees.=20

Under=20 Texas law, the award of attorney=3Ds fees to=20 a plaintiff recovering on a valid contract claim is mandatory = under=20 section 38.001 if there is proof of the reasonableness of=20 attorney=3Ds=20 fees.  See Tex. Civ.=20 Prac. & Rem. Code Ann. ' = 38.001=20 (Vernon 1995); Hassell Const. Co., Inc. v. Stature Commercial = Co.,=20 162 S.W.3d 664, 668 (Tex. App.CHouston=20 [14th Dist.] 2005,  no pet.).  While a trial court has = the=20 discretion to set the amount of  attorney=3Ds fees, it=20 does not have the discretion to deny fees altogether if they are = proper=20 under section 38.001.  See Tex. Civ. Prac. & Rem. = Code=20 Ann. ' = 38.001;=20 Hassell Const. Co., Inc., 162 S.W.3d at 668.  Because = Graybar=20 introduced evidence regarding reasonable attorney=3Ds fees and=20 because Graybar recovered on its contract counterclaim, the trial = court=20 erred by not awarding reasonable attorney=3Ds fees for=20 this claim.  Accordingly, we sustain Graybar=3Ds=20 thirteenth issue, reverse the trial court=3Ds judgment=20 to the extent it failed to award Graybar attorney=3Ds fees,=20 and remand to the trial court for further proceedings to determine = the=20 amount of Graybar=3Ds=20 reasonable attorney=3Ds fees=20 under Chapter 38.

           = ;            =             &= nbsp;           =20 IV. =20 Conclusion

Under the=20 applicable standards of review, we conclude that the evidence is = legally=20 and factually sufficient to support the trial court=3Ds decision=20 not to award Graybar any damages based on LEM=3Ds failure=20 to provide the Warranty.  However, the evidence is legally=20 insufficient to support the three bases on which the trial court = concluded=20 that the Change Order is void.  The trial court should have=20 calculated the amount outstanding based on the Change Order, which = would=20 have resulted in an award of $2,671,456 in actual damages  in = favor=20 of LEM.  Because no party has challenged the trial = court=3Ds judgment=20 awarding Graybar $100,000 on its counterclaim and because this = award is=20 based on the conversion charges that are part of the credit from = the=20 Change Order, we must deduct $100,000 from the credit against=20 LEM=3Ds contract=20 claim to avoid giving Graybar a windfall.  Therefore, we = reverse the=20 part of the trial court=3Ds judgment=20 dealing with the LEM=3Ds claims=20 against Graybar, and we remand the case to the trial court with=20 instructions to render judgment in favor of LEM and against = Graybar=20 awarding actual damages of $2,771,456 plus court costs and the = appropriate=20 award of prejudgment interest, postjudgment interest, and = reasonable=20 attorney=3Ds fees to=20 be determined by the trial court in further proceedings on = remand. =20 We reverse the trial court=3Ds judgment=20 to the extent it failed to award Graybar attorney=3Ds fees=20 based on Graybar=3Ds=20 counterclaim, and we remand to the trial court for further = proceedings to=20 determine the amount of Graybar=3Ds=20 reasonable attorney=3Ds fees=20 under Chapter 38 and for rendition of judgment based on this fee = award. We=20 need not address the other issues Graybar asserts on appeal.[16] =20

Based on=20 our rulings, for good cause, and in the interest of justice, we = order=20 Graybar and LEM to each pay one-half of the aggregate appellate = costs=20 incurred in this case.

 

 

 

/s/     =20 Kem Thompson Frost

Justice

 

 

Judgment=20 rendered and Majority Opinion and Concurring and Dissenting = Opinion filed=20 March 6, 2008.

 

Panel=20 consists of Justices Anderson, Frost, and Mirabal.* (Anderson, = J.,=20 concurring without opinion) (Mirabal, J., concurring and=20 dissenting).


[1]  This opinion is a majority = opinion as to=20 all issues except appellant=3Ds thirteenth issue; it is a  = plurality=20 opinion with respect to appellant=3Ds thirteenth issue.  =

[2]  The trial court also awarded = Bigham=20 judgment against LEM; however no party has appealed this part of = the trial=20 court=3Ds judgment, and it is not relevant to = this=20 appeal.

[3]  This is the first and only time = the trial=20 court mentioned this July 30, 2003, invoice in its findings of=20 fact.

[4]  This finding appears to conflict = with the=20 trial court=3Ds judgment in favor of Graybar for = $100,000 in=20 Acommission costs,@ by which the trial court appears to be = referring=20 to these Aconversion costs.@ 

[5]  This finding is inconsistent with = the trial=20 court=3Ds judgment awarding $3.35 million = against Graybar=20 and then rendering judgment in favor of Graybar in the amount = of =20 $100,000 on its counterclaim rather than  crediting $100,000 = against=20 LEM=3Ds claim.

[6]  The trial court also concluded = that article=20 2 of the UCC applies to LEM=3Ds sale of the Twin Pack to=20 Graybar.

[7]  Graybar seems to assert in places = that this=20 measure of damages can never be used because the damages always = must be=20 measured at the time of the breach.  Nonetheless, Graybar = also cites=20 section 2.714(a), which does not contain this requirement, and = Graybar=20 seeks to recover damages based on the value of services provided = or quoted=20 by Pratt & Whitney after the time of breach.  See = Tex. Bus. & Com. Code = Ann.=20 ' 2.714(a) (Vernon 1994) (allowing buyer = under=20 certain circumstances to recover as damages for any non-conformity = of=20 tender the loss resulting in the ordinary course of events from = the=20 seller=3Ds breach as determined in any manner = which is=20 reasonable).

 

[8]  On direct examination, Collins = read from=20 one of the Pratt & Whitney emails described above, and he = answered in=20 the affirmative when asked by Graybar=3Ds counsel if the email describes = Awhat has to be done in order to get the = one-year=20 warranty quoted on and issued.@ Collins also answered in the = affirmative when=20 asked if the Pratt & Whitney proposal regarding the Technical = Services=20 was Ato carry out . . . those negotiations = [for the=20 terms of the Warranty].@  This testimony is conclusory and, = as noted=20 above, it is contradicted by subsequent documents regarding the = Warranty=20 and the Technical Services as well as by part of = McDaniel=3Ds testimony.  In any event, the = trial court=20 was free to disbelieve Collins=3Ds testimony.

[9]  In finding of fact 11, the trial = court=20 found that, even if LEM=3Ds performance had not been excused, = Graybar=20 only suffered a loss in the amount of $100,000, which the = trial=20 court found was the commercially reasonable cost of performing the = conversion from 60 Hz to 50 Hz in the United States.  = Therefore, the=20 trial court found that Graybar did not suffer a loss based on=20 LEM=3Ds failure to provide the Warranty.  =

[10]  On appeal, LEM asserts that=20 Graybar=3Ds request for credits against = LEM=3Ds recovery cannot succeed because=20 Graybar=3Ds breach of the contract by its alleged = failure to=20 timely pay (and in other regards) discharged LEM from its = obligations=20 under the contract.  This assertion is incorrect because, = after these=20 alleged acts, LEM treated the contract as still in effect rather = than=20 rescinding the contract.  See Hanks v. GAB Bus. Servs., = Inc.,=20 644 S.W.2d 707, 708 (Tex. 1982) (holding that, despite=20 election-of-remedies doctrine in Bocanegra v. Aetna Life Ins. = Co.,=20 605 S.W.2d 848 (Tex. 1980), nonbreaching party had to decide = whether to=20 rescind the contract or seek to enforce it when the material = breach=20 occurred, rather than waiting until after trial and before = judgment to=20 decide, and stating that nonbreaching party waived its right to = rescind=20 the contract based on the other party=3Ds material breach by (1) treating the = contract as=20 still in effect following the material breach and (2) by filing = suit to=20 enforce the contract); Gupta v. Eastern Idaho Tumor Inst., = Inc.,=20 140 S.W.3d 747, 757B58 (Tex. App.CHouston [14th Dist.] 2004, pet. denied) = (holding=20 that, as a matter of law, nonbreaching party was bound by the = contract=20 despite other party=3Ds material breach because nonbreaching = party=20 continued to demand performance under the contract following the = material=20 breach).

[11]  On appeal, LEM asserts that the = trial court=20 necessarily found that Graybar violated the duty to act in good = faith=20 imposed by section 1.203 of the UCC and that the trial court = refused to=20 enforce the Change Order because of this finding.  The trial = court=20 made no such findings.  Indeed, the trial court concluded = that Texas=20 common law rather than the UCC governs the Change Order. =20

[12]  Silvia Gatrell signed the Change = Order on=20 behalf of Graybar.

[13]  The trial court found that = LEM=3Ds failure to perform the conversion was = excused by=20 Graybar=3Ds alleged actions in August 2003 in = allegedly=20 moving the Twin Pack outside the United States without giving LEM = enough=20 time to accomplish the conversion.  The trial court also = found this=20 failure was excused by Graybar=3Ds obtaining the consent of LEM to pay = Allegheny=20 directly while allegedly concealing the fact that Graybar would be = obtaining a bill of sale directly from Allegheny, allegedly for = the=20 purpose of evading Graybar=3Ds payment obligations to LEM.  Even = if these=20 matters would excuse LEM=3Ds failure to perform the conversion, = they would=20 not prevent LEM from later agreeing in the Change Order to a = credit in=20 favor of Graybar based on LEM=3Ds failure to make the conversion. =20

[14]  LEM claims that Graybar cannot = seek credits=20 based on the Change Order because it did not challenge the trial=20 court=3Ds thirteenth finding of fact.  We=20 disagree.  In any event, to the extent this finding conflicts = with=20 allowing credits to Graybar based on the Change Order, we construe = Graybar=3Ds brief as having sufficiently = challenged this=20 finding.

[15]  Presuming without deciding that = under the=20 correct analysis, Graybar should take nothing on its counterclaim, = no=20 party has assigned error in this regard, and this court has no = power to=20 reverse the trial court=3Ds rendition of judgment on = Graybar=3Ds counterclaim.  See Karnes, = 717=20 S.W.2d at 903.  Even if the trial court=3Ds judgment is erroneous, we must give = effect to=20 its unambiguous language, without considering extrinsic = matters. =20 See Reiss v. Reiss, 118 S.W.3d 439, 441B42 (Tex. 2003) (holding court must give = effect to=20 unambiguous language of judgment even if such a judgment is wrong = under=20 the law); State Farm Lloyds, Inc. v. Williams, 791 S.W.2d = 542, 546=20 (Tex. App.CDallas  1990, writ denied) (stating = that, if=20 judgment is unambiguous, courts may not use extrinsic matters to = give the=20 judgment an effect different from that expressed by the language = of the=20 judgment).  We cannot use the trial court=3Ds findings of fact and conclusions of = law to=20 change the unambiguous language of the judgment.  See = Reiss,=20 118 S.W.3d at 441B42; Williams, 791 S.W.2d at=20 546.  

[16]  In its fourteenth issue, Graybar = asserts=20 the trial court erred in holding that 50% of the contract price = was due=20 and owing and in awarding prejudgment interest on those amounts = because=20 the contract the trial court found as the basis for recovery = recited that=20 those amounts are not due until certain events occur that have not = been=20 shown by LEM to have occurred.  We need not reach this issue = because=20 we have concluded that the trial court should have based its = decision on=20 the Change Order while this issue and the argument under it = presume for=20 the sake of argument that the August 5th LEM invoice is the = operative=20 document.  In one sentence in one footnote, Graybar states = that,=20 Aif the Court were to uphold the Change = Order,=20 which made the balance due upon issuance of the warranty and the=20 commissioning of the Twin Pack, the award of prejudgment interest = would be=20 erroneous, but the real error would be in the award of damages to=20 LEM.@  Graybar=3Ds brief does not contain any argument, = analysis,=20 citations to the record, or legal authorities regarding any = assertion that=20 under the Change Order, Graybar has no liability to LEM at = present. =20 See Tex. R. App. = P.=20 38.1(h);  San Saba Energy, L.P. v. Crawford, 171 = S.W.3d 323,=20 337 (Tex. App.CHouston [14th Dist.] 2005, no=20 pet.).

*  Senior Justice Margaret Garner = Mirabal=20 sitting by=20 assignment.

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FONT-SIZE: 12pt; COLOR: red; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .TextHidenGray { FONT-SIZE: 0pt; COLOR: #ebebe1; LINE-HEIGHT: normal; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-ALIGN: left } .Time { FONT-WEIGHT: bold; FONT-SIZE: 10px; COLOR: red; LINE-HEIGHT: 4em; = FONT-FAMILY: Arial, Helvetica, sans-serif; TEXT-ALIGN: center } ------=_NextPart_000_0012_01C881EC.9780E150--