In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-19-00242-CV 

RUDY ALVAREZ, 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 

 

February 12, 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 improvements on two homes. She lived in one along with 

her mother. The other home was that of her sister who happened 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 home in disrepair. That 

resulted in Shepard suing him and alleging that he breached their contract, breached both 
2

express and implied warranties regarding his services, and engaged in deceptive trade 

practices. Trial was to the court, which found for Shepard and awarded her trebled 

economic damages. Alvarez appealed. His sole issue concerns the award of treble 

damages and whether sufficient evidence appeared of record illustrating that he acted 

with the requisite mens rea to permit them. We affirm.

The Texas Business and Commerce Code permits a consumer to maintain an 

action when a breach of either an expressed or implied warranty is a producing cause of 

damages. TEX. BUS. & COM. CODE ANN. § 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, the legislature

explained that a breach of expressed or implied warranty is knowingly committed when 

done with “actual awareness of the act, practice, condition, defect, or failure constituting 

the breach.” Id. § 17.45(9). And, “actual 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 Home Mfg. Co. v. Barnes, 741 

S.W.2d 349, 354 (Tex. 1987). Breaching it is actionable under § 17.50 of the Business 

and Commerce Code. Id.; Cont’l Dredging, Inc. v. De-Kaizered, Inc., 120 S.W.3d 380,

390–91 (Tex. App.—Texarkana 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.—Dallas 2003, pet. denied);

Cont’l Dredging, Inc., 120 S.W.3d at 391; LaBella v. Charlie Thomas, Inc., 942 S.W.2d 

127, 135 (Tex. App.—Amarillo 1997, writ denied). Indeed, it seems rather logical that 
3

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 renovations,

starting them, deconstructing portions of the Shepard home, and then leaving the abode 

in a state of disrepair. To that we add 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, buckets, everything in the house. 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 before contracting with 

Alvarez, she queried whether he had other jobs that would prevent him from performing

the renovations 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

leaving the job incomplete is some evidence from which a reasonable, fair-minded factfinder may rationally deduce that Alvarez breached his implied duty to act in a good and 

workmanlike way. His having promised, in response 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 incomplete. 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 

legally 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 

court 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 about the absence of 

any finding from the trial court 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 Texas Deceptive Trade Practices 

Consumer Protection Act (DTPA)” but also that “Defendant’s breaches of warranty are 

deceptive trade practices committed knowingly and intentionally by Defendant.” Including 

findings of fact in a judgment is improper when the litigants 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 (Tex. App.—Amarillo 2008, no pet.) 

(recognizing the continued validity of the holding in Hill). Because the record does not 
5

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