## In The Court of Appeals Seventh District of Texas at Amarillo

No. 07

- 19

- 00242

- CV

RUDY AL

VAREZ , D/B/A/ ACOUSTICAL PLUS , APPELLANT

V. PATSY SHEPARD , APPELLEE On Appeal from 72nd District Court , Lubbock

, Texas Trial Court No. 2017528531 , Honorable Kelly Moore , Presiding



### Febru ary 1 2 , 2020 MEMORANDUM OPINION
Before QUINN , C.J. , and PARKER and DOSS , JJ. This is an appeal from a final judgment awarding Patsy Shepard treble damages against the appellant , Rudy Alvarez , d/b/a Acoustical Plus. Shepard contracted with Alvarez to perform rather major improveme nts on two homes. She lived in one along with her mother. The other home was that of her sister who happe ned to live next door. Shepard obligated herself to pay for all construction being undertaken. Furthermore , Alvarez accepted payment , began the work , failed to complete the renovations after repeatedly being asked and promising to finish , and left the ho me in disrepair. That resulted in Shepard s uing him and alleging that he breach ed the ir contract , breach ed both2

express and implied warranties regarding his services , and engag ed in deceptive trade practices. Trial was to the court , which found for Shepa rd and awarded her trebled economic damages

. Alvarez appealed. His sole issue concern s the award of treble damages and whether sufficient evidence appeared of record illustrating that he acted with t he requisite mens rea to permit them. We affirm. The T exas Business and Commerce Code permits a consumer to maintai n an action when a breach of either an expresse d or implied warranty is a producing cause of damages

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. § 17. 50 (a) (2) ( West 2011 ). A consumer who prevails may recover “ economic damages ” which may be trebled if the defendant knowingly committed the misconduct. Id. § 17.50(b)(1). Furthermore , t he legislature explained that a breach of expressed or implied warranty is knowingly committe d when done with “ actual awareness of the act , practice , condition , defect , or failure constituting the breach

. ” Id. § 17.45(9). And , “ a ctual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness

. ” Id. Next , implied within a contract to repair goods or property is a warranty to perform those repairs in a good and workmanlike manner. Melody Hom e Mfg. Co. v. Barnes , 741 S.W.2d 349 , 354 (Tex. 1987). Breaching it is actionable under § 17.5 0 of the Business and Commerce Code. Id. ; Cont ’ l Dredging , Inc. v. De

- Kaizered , Inc. , 120 S.W.3d 380 , 390

– 91 (Tex. App.

— T exarkana 2003 , pet. denied). Most importantly , one ’ s failing to complete work required under an agreement constitutes such a breach

. Barnett v. Coppell N. Tex. Court

, Ltd

. , 123 S.W.3d 804 , 823 (Tex. App.

— D allas 2003 , pet. denied) ; Cont ’ l Dredging , Inc. , 120 S.W.3d at 3 91 ; LaBella v. Charlie Thomas , Inc

. , 942 S.W.2d
127 , 135 (Tex. App.

— A marillo 1997 , writ denied) . Indeed , it s eem s rather logical that3

finishing the project is integral to a contractor ’ s duty to perform in a good and workmanlike

manner . With this , we turn to the record at bar. Within it lies evidence of Alvarez agreeing to perform the home renovation s , start ing them , deconstructing portions of the Shepard home , and then leaving the abode in a state of disrepair. To that we a dd evidence of Shepard ’ s queries about the slow progress of his work , her requests for him to finish , his representations that he would

resume work , and his ultimate failure to complete the promised work. As Shepard testified to: And one time in March when I gave the check we got a bad storm

. . . the house was so bad. It was raining in the house , electric wires [were] everywhere. I did not know what to do. I kept calling him. I could not get him. Me and my mom had to sleep. We [were] so scared. I could not sleep the whole night. And I ’ m like , I ’ ve got to go to work. I had pots , b uckets , everything in the hous e. This is where he said the roof was fixed. He took the main beam out of the house. Water was all over the house. Water was just everywhere.

“ [F] inally in May ,” she “ couldn ’ t take it anymore ” and encountered Alvarez in a store or mall

. He again promised that he was “ going to be at [her] house next week ” and explained that he “ got caught up on another job. ” She added that b efore contracting with Alvarez , she queried whether he had other jobs that w ould prevent him from performing the ren ovations in a timely manner. He “ guaranteed ” her that he had none. Yet , he not only “ picked up other jobs to work on ” while her “ house [was] not even finished ” but also never returned to finish hers. And , by that time , Shepard had paid him $41 , 500 of the $44 , 000 contract price. That he began the work , demanded and received at least 94% of the contract price from Shepard , left the job , promised to return to finish the renovations , and never completed them is evidence permitting the fact

- finder to award treble damages. That is ,4

l eaving the job incomplete is some evidence from which a reasonable , fair

- minded fact

f inder may rationally deduce that Alvarez breached his implied duty to act in a good and workmanlike way. His having promised , in respon se to Shepard ’ s entreaties , to return and finish the renovations is some evidence from which a reasonable and fair

- minded fact

- finder may rationally deduce that he was actually aware of the “ failure constituting the breach ,” which was his leaving the job i ncomplete. See City of Keller v. Wilson , 168 S.W.3d 802 , 827 (Tex. 2005) (stating that the test for whether the verdict is supported by legal ly sufficient evidence is whether the evidence at trial would enable reasonable and fair

- minded people to reach the verdict under review ). And , with that evidence , the trial

cour t had legitimate bases to conclude that he acted knowingly and , therefore , treble the economic damages suffered by Shepard

. Though not substantively briefed , Alvarez also complains ab out the absence of any finding from the trial co urt that he acted intentionally or knowingly when breaching the implied warranty at issue. Yet , within its final judgment , the trial court found not only that Shepard “ is a consumer as defined under the Texa s Deceptive Trade Practic es Consumer Protection Act (DTP A) ” but also that “ Defendant ’ s breaches of war ranty are deceptive trade practices committed knowingly and in tentionally by Defendant

. ” Including findings of fact in a judgment is improper when the li tigants formally request such findings and conclusions of law. Hill v. Hill , 971 S.W.2d 153 , 156 (Tex. App.

— Amarillo 1998 , no pet.). But , if they nonetheless appear in a judgment , they “ have probative value as long as they do not conflict with those in a separate document

. ” Id. at 157 ; accord S

. Plains Lamesa R.R. v. Heinrich , 280 S.W.3d 357 , 365 (T e x. App.

— Amarillo 2008 , no pet.) (recognizing the continued validity of the holding in Hill ). Because the record does not5

contain either a request by anyone for findings of fact and conclusions of law or a document apart from the judgment containing such findings and conclusions , those in the judgment control. We overrule appellant ’ s issue and affirm the final judgment.

Brian Quinn Chief Justice