Affirmed and Opinion filed May 4, 2021. 

In The

Fourteenth Court of Appeals

NO. 14-19-00922-CV

4922 HOLDINGS, LLC AND HORIZON UNITED GROUP 

INTERNATIONAL, LLC, Appellants/Cross-Appellees

V.

SALVADOR RIVERA D/B/A RIVERA’S COMMERCIAL, 

Appellee/Cross-Appellant

On Appeal from the 189th District Court

Harris County, Texas

Trial Court Cause No. 2017-30658

O P I N I O N

This appeal arises from a contract dispute between a subcontractor and an 

owner/general contractor following a construction renovation project. A jury found 

that both parties materially breached the contract, but that the owner/general 

contractor breached first and that its breach was not excused. The trial court signed 

a judgment awarding the subcontractor $3,875 in breach-of-contract damages found 
2

by the jury, $52,300 in attorney’s fees (plus conditional appellate attorney’s fees), 

and pre- and post-judgment interest.

Both parties appeal. In three issues, the owner/general contractor asserts that

no legally or factually sufficient evidence supports: (1) the jury’s damages finding 

in the subcontractor’s favor; (2) the jury’s finding that the owner/general contractor 

breached the contract first; and (3) the trial court’s award of attorney’s fees to the 

subcontractor.

The subcontractor presents two cross-issues. First, the subcontractor contends 

the trial court erred in awarding only $3,875 in contract damages when the jury found 

a larger amount—$17,775—represented the value of its unpaid labor in response to 

a separate lien-foreclosurequestion. Second, the subcontractor urges that the trial 

court should have awarded pre-judgment interest at 18%, instead of 5.5%, because

the jury found that the owner/subcontractor failed to promptly pay for the work 

performed. 

We conclude that legally and factually sufficient evidence supports the verdict 

and the judgment, and we overrule the owner/general contractor’s three issues. We 

overrule the subcontractor’s issues because it failed to preserve them in the trial 

court. Accordingly, we affirm the trial court’s judgment.

Background

Appellants Horizon United Group International, LLC and 4922 Holdings, 

LLC (collectively, “Horizon”)1 hired Salvador Rivera d/b/a Rivera Commercial 

(“Rivera”) to perform “structural repairs and upgrades” to church property located 

in Houston. In November 2014, Horizon and Rivera signed a subcontract agreement 

1 The parties do not distinguish between Horizon and 4922 Holdings, so we refer to them 

collectively as “Horizon.”
3

(the “Contract”) with a price of $121,000. Generally, the original scope of work 

included demolition, framing, truss repairs, ceiling repairs, interior drywall repairs 

and painting, and exterior painting. Two written and signed change orders or 

addenda altered the Contract terms. Together, these orders changed the Contract 

price to a maximum of $139,000.

2

 

Horizon was to pay Rivera periodically in an amount equal to the value of the 

work performed and approved by Horizon, less a retainage equal to ten percent of 

the amount Rivera requested. 

Based on Horizon’s alleged failure to pay all Contract amounts due, Rivera 

sued Horizon for breach of contract, quantum meruit, prompt payment violations, 

and lien foreclosure. Horizon countersued Rivera for fraudulent lien and breach of 

contract based on Rivera’s allegedly shoddy workmanship and failure to complete 

the Contract’s work scope. 

A two-day jury trial included testimony from Rivera’s owner, Salvador 

Rivera, and his son, Brian, who worked on the project and handled paperwork and 

communications with Horizon. The parties agree that work proceeded and Horizon 

paid Rivera for its work up to approximately January or February 2016, when 

Horizon told Rivera to stop work. According to Salvador and Brian, the entire scope 

of work—including the first and second change orders—had been completed as of 

February 2016, and the only task remaining was exterior painting, which was just 

beginning when they were told to stop. Brian explained that Horizon halted the job

because a lack of waterproofing on the exterior concrete block walls led to interior 

leakage problems. 

2 The $139,000 price included a potential $5,000 bonus if Rivera completed the second 

change order’s scope timely. The parties disputed whether Rivera completed the second change 

order.
4

According to Brian, Horizon asked Rivera to waterproof the exterior concrete 

masonry, a task the parties refer to as applying “block filler.” Brian and Salvador

testified that block filler was not part of the original work scope, so Rivera provided 

an additional proposal for it. The court admitted a document labeled “Additional 

#3,” which provided for Rivera to “apply waterproofing all around exterior wall” in 

exchange for an additional $7,750. This document was not signed by either Rivera 

or Horizon, but Salvador said that Horizon’s superintendent verbally approved the 

block-filler work over the phone. Horizon’s position was that block filler is much 

like paint primer and was included within the original work scope as part of the 

exterior painting. In any event, it is undisputed that Rivera completed the blockfiller work and invoiced Horizon for $7,750 (less retainage of $750) on April 21,

2016. Horizon did not pay Rivera for the block-filler work. After Brian and 

Salvador completed the block filler, they did not resume or complete the exterior 

painting because they had been told to stop. 

The parties agree that Horizon paid Rivera a total of $118,100 for work 

performed up to February 2016. The parties also agree that Horizon withheld 

$13,900 as retainage. Rivera claims it is owed $13,900 for the retainage and $7,750 

for the block-filler work. Brian filed a lien against the property for $21,650, 

reflective of these two amounts. 

Horizon believed that Rivera failed to complete the work scope and 

inadequately performed certain tasks. On cross-examination, Brian acknowledged 

that Rivera had not met some contractual obligations, such as providing daily written 

reports, obtaining inspections (although Brian stated, “Horizon has always done the 

inspections for us”), securing permits for some items (such as an interior stage that 

Rivera built as part of the second change order), and building steps leading to the 

stage front as contemplated by the second change order’s work scope. Brian testified 
5

that Horizon never informed Rivera that its work was incomplete or that any part of 

the work was deficient and needed repair. 

Another task Horizon asserted Rivera either failed to perform or performed 

deficiently was exterior painting, which was included in the original work scope. 

Brian and Salvador acknowledged that no deductive change order removed the 

exterior painting from the work scope. However, Horizon told Rivera to stop work 

as the exterior painting began, and Rivera’s February 2016 invoice noted that 

exterior painting remained to be performed. As the invoice indicates, the exterior 

painting would cost $7,000 but Rivera was not requesting payment for that work. 

The February 2016 invoice was in writing and signed by Horizon’s project manager, 

David Pratt, who approved it subject to a later adjustment. 

Brian also acknowledged that Rivera did not have a signed change order 

regarding the block-filler work, but he testified that Horizon approved the work over 

the phone. Brian said that change orders did not need to be in any specific form. 

Horizon took the position that Rivera’s deficient performance was 

remediable. Scott Jones, an estimator for Horizon, was Horizon’s only witness. 

Jones explained that Horizon asked him to use specialized software commonly used 

in the construction industry to estimate the cost of remedying or completing the 

work. Jones submitted and discussed a report regarding allegedly incomplete or 

defectively performed items in Rivera’s work scope. According to Jones, the total 

reasonable and necessary cost to complete or remedy Rivera’s work would be

$49,750. Additionally, Jones opined that the block-filler work was part of Rivera’s 

original scope to paint the building’s exterior.3 Jones also opined that Rivera was 

3 The relevant line item on the Contract’s scope of work attachment states: “[d]o painting 

all interior & exterior walls, doors, door frames, trim, and ceiling for entire project. Do not paint 

Mural Wall.”
6

not entitled to the second change order’s $5,000 bonus because Rivera had not

completed the change order’s scope. Jones explained that Rivera already had been 

paid more than it was owed because it failed to complete the work. On crossexamination, Jones acknowledged that this was the first time he had been assigned

to determine whether a project had been properly completed. His traditional role, 

instead, was to assist, at a project’s front-end, with determining the job’s cost. 

Although Jones identified $49,750 as the total reasonable and necessary cost 

to remedy or complete Rivera’s work, this figure was an estimate because the project 

was “still not finished” and Horizon had not yet actually incurred any costs in 

remedying or completing the work. Jones agreed that his estimate was based on 

photographs he took in October or November 2017 and the project status at that 

time—approximately eighteen months after Rivera left the project. He agreed that

he had not spoken to any of Horizon’s project managers or superintendents 

associated with this job. Nor had he examined any project documentation, such as 

emails, invoices, or payments made. He asked for project drawings, but they were 

not given to him. Additionally, Jones was not aware whether other subcontractors—

or Horizon itself—had ever worked on the project, either during Rivera’s work or 

afterward. Jones testified that Rivera was given the opportunity to complete the 

project “multiple times.” 

In rebuttal to Jones’s testimony, Salvador testified that several other 

subcontractors worked on the job site. He also disputed several, but not all, of the 

estimates included in Jones’s report.

After both parties rested, the trial court held a charge conference. The parties 

stipulated that Rivera “substantially performed all of [its] obligations in agreement 

with Horizon and 4922 Holdings.” After the parties so stipulated, Horizon moved 

for a directed verdict on the ground that Rivera failed to prove the reasonable and 
7

necessary costs to complete the project under a substantial performance theory.4 The 

trial court denied the motion. 

The jury found that both Rivera and Horizon materially breached the contract, 

but Horizon breached first; that Horizon’s breach was not excused; and that $3,875 

would “fairly and reasonably compensate Rivera for damages” resulting from 

Horizon’s breach. Also, the jury found that Rivera’s lien “substantially represents” 

the amount of money owed by Horizon, and in conjunction with that question, that 

the value of Rivera’s labor/material provided for this project but not paid by Horizon 

was $17,775. The jury further found that Horizon failed to promptly pay Rivera for 

properly performed work. 

Rivera moved for judgment on the jury’s verdict, seeking $21,650 in damages 

and 5% pre- and post-judgment interest. Horizon filed a motion for judgment 

notwithstanding the verdict (“JNOV”) and to disregard several jury findings. 

The parties agreed to submit attorneys’ fees to the court by affidavit. In its 

initial request, Rivera sought $81,750 in trial attorney’s fees, plus conditional 

appellate fees. Though Rivera’s counsel submitted an affidavit supporting his 

requested fees, the attached billing records were completely redacted. After Horizon 

objected, Rivera supplemented his attorney’s fee request and provided more detailed 

and unredacted billing records, as well as two additional affidavits. The trial court 

signed findings of fact that Horizon owed $52,350 in reasonable and necessary 

attorney’s fees. In determining this amount, the trial court struck through or reduced

4 E.g., Vance v. My Apartment Steak House of San Antonio, Inc., 677 S.W.2d 480, 482-83 

(Tex. 1984) (“[W]hen a breaching contractor brings suit to recover for his substantial performance 

and the owner alleges remediable defects in the construction, the contractor is required to prove 

that he did substantially perform, the consideration due him under the contract, and the cost of 

remedying the defects due to his errors or omissions.”). Based on Vance, Horizon argued that 

proving reasonable and necessary remediation costs is a required element of Rivera’s contract 

claim for which Rivera bears the burden.
8

the hours billed on several of Rivera’s fee statement line items.

The trial court signed a final judgment in favor of Rivera, awarding $3,875 in 

damages and $52,350 in attorney’s fees, with conditional appellate fees, and 5.5% 

pre- and post-judgment interest. 

Horizon timely appealed, and Rivera cross-appealed.

Issues Presented

Horizon presents three issues for our review: (1) whether legally and factually 

sufficient evidence supports the jury’s damages award; (2) whether legally and 

factually sufficient evidence supports the jury’s finding that Horizon breached the 

Contract first; and (3) whether legally and factually sufficient evidence supports the 

attorney’s fee award. 

In its cross-appeal, Rivera presents two issues: (1) whether the trial court 

erred in awarding only $3,875 in damages, when the jury found that the reasonable 

value of Rivera’s unpaid work was $17,775; and (2) whether the trial court erred in 

awarding pre-judgment interest at a 5.5% rate rather than an 18% rate consistent 

with the jury’s finding that Horizon failed to pay promptly for the work performed.

Horizon’s Issues

A. Standard of Review – Legal and Factual Sufficiency

When reviewing the legal sufficiency of the evidence, we consider the 

evidence in the light most favorable to the challenged finding and indulge every 

reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 

802, 822 (Tex. 2005). We must credit favorable evidence if a reasonable fact finder 

could and disregard contrary evidence unless a reasonable fact finder could not. See 

id. at 827. To sustain a challenge to the legal sufficiency of the evidence supporting 

a jury finding, the reviewing court must find that: (1) there is a complete lack of 
9

evidence of a vital fact; (2) the court is barred by rules of law or evidence from 

giving weight to the only evidence offered to prove a vital fact; (3) there is no more 

than a mere scintilla of evidence to prove a vital fact; or (4) the evidence conclusively 

established the opposite of a vital fact. Volkswagen of Am., Inc. v. Ramirez, 159 

S.W.3d 897, 903 (Tex. 2004).

When reviewing the factual sufficiency of the evidence, we examine the entire 

record, considering all the evidence both in favor of and contrary to the finding. Vast 

Constr., LLC v. CTC Contractors, LLC, 526 S.W.3d 709, 723 (Tex. App.—Houston 

[14th Dist.] 2017, no pet.). When a party attacks the factual sufficiency of an adverse 

finding on an issue on which it had the burden of proof, the party must demonstrate 

on appeal that the adverse finding is against the great weight and preponderance of 

the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per 

curiam). And when a party attacks the factual sufficiency of the evidence pertaining 

to a finding on which the party did not have the burden of proof, we may set aside 

the finding only if it is so contrary to the overwhelming weight of the evidence as to 

be clearly wrong and unjust. Bennett v. Comm’n for Lawyer Discipline, 489 S.W.3d 

58, 66 (Tex. App.—Houston [14th Dist.] 2016, no pet.). We consider all the 

evidence, but we will not reverse the judgment unless “the evidence which supports 

the [ ] finding is so weak as to [make the finding] clearly wrong and manifestly 

unjust.” Star Enter. v. Marze, 61 S.W.3d 449, 462 (Tex. App.—San Antonio 2001, 

pet. denied). The amount of evidence necessary to affirm is far less than the amount 

necessary to reverse a judgment. GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 

61 S.W.3d 599, 616 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). 

We apply these standards mindful that this court is not a fact finder. Maritime 

Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). The trier of fact is the 

sole judge of witnesses’ credibility and the weight afforded their testimony. GTE 
10

Mobilnet, 61 S.W.3d at 615-16; see City of Keller, 168 S.W.3d at 819-20. Therefore, 

we may not pass upon the witnesses’ credibility or substitute our judgment for that 

of the fact finder, even if the evidence would also support a different result. GTE 

Mobilnet, 61 S.W.3d at 615-16.

B. Legally and factually sufficient evidence supports the jury’s finding that 

Horizon breached the Contract first.

We take Horizon’s issues out of order and consider first whether legally and 

factually sufficient evidence supports the jury’s finding that Horizon breached the 

Contract first. We reproduce the relevant jury findings here:

QUESTION NO. 1

Did Horizon and/or 4922 Holdings fail to comply with the 

Agreement?

You are instructed that a failure to comply must be material. The 

circumstances to consider in determining whether a failure to comply 

is material include:

1. The extent to which he injured party will be deprived of the 

benefit which it reasonably expected;

2. The extent to which the injured party can be adequately 

compensated for the part of that benefit of which he will be 

deprived;

3. The extent to which the party failing to perform or to offer to 

perform will suffer forfeiture;

4. The likelihood that the party failing to perform or to offer to 

perform will cure his failure, taking into account the 

circumstances including any reasonable assurances;

5. The extent to which the behavior of the party failing to perform 

or to offer to perform comports with standards of good faith and 

fair dealing.

Answer “Yes” or “No”:

ANSWER: Yes
11

QUESTION NO. 2

Did Rivera fail to comply with the Agreement?

You are instructed that a failure to comply must be material. The 

circumstances to consider in determining whether a failure to comply 

is material include:

1. The extent to which he injured party will be deprived of the 

benefit which it reasonably expected;

2. The extent to which the injured party can be adequately 

compensated for the part of that benefit of which he will be 

deprived;

3. The extent to which the party failing to perform or to offer to 

perform will suffer forfeiture;

4. The likelihood that the party failing to perform or to offer to 

perform will cure his failure, taking into account the 

circumstances including any reasonable assurances;

5. The extent to which the behavior of the party failing to perform 

or to offer to perform comports with standards of good faith and 

fair dealing.

Answer “Yes” or “No”:

ANSWER: Yes

If you answered “Yes” to Question No. 1 and Question No. 2, 

then answer the following question. Otherwise, do not answer the 

following question.

QUESTION NO. 3

Who failed to comply with the Agreement first?

“Horizon and/or 4922 Holdings”

or

“Rivera”

ANSWER: Horizon and/or 4922 Holdings

When as here two parties materially breach a contract, determining which 

party breached first becomes important because “[i]t is a fundamental principle of 
12

contract law that when one party to a contract commits a material breach of that 

contract, the other party is discharged or excused from further performance.” 

Bartush-Schnitzius Foods Co. v. Cimco Refrigeration, Inc., 518 S.W.3d 432, 436 

(Tex. 2017) (per curiam); Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 

195, 198 (Tex. 2004) (per curiam). Rivera asserted prior material breach, and the 

jury found in Rivera’s favor on that issue. Horizon challenges the legal and factual 

sufficiency of the evidence supporting that finding.5

Rivera claimed that Horizon materially breached the Contract when it failed 

to pay the full amount owed, including the $13,900 retainage. Horizon does not 

dispute that it failed to pay the retainage but insists its duty to pay was never 

triggered because Rivera never completed the work. Horizon points to Article 5(f) 

of the Contract, which, Horizon says, requires the contract balance to be paid only 

after “project completion.”

6

 Essentially, Horizon is arguing that it did not materially 

breach the Contract at all by failing to pay Rivera the retainage.

Horizon is correct that under Article 5, which governs payment, the retainage 

would not be payable until after all four of the specified conditions occurred—full 

completion and acceptance of the work, payment by the owner, and completion of 

5 Horizon preserved its issue in the trial court by filing a JNOV motion asking the trial 

court to disregard the jury’s finding that Horizon breached first and a motion for a new trial 

challenging the legal and factual sufficiency of the evidence to support this jury finding. See, e.g., 

Daniels v. Empty Eye, Inc., 368 S.W.3d 743, 748-49 (Tex. App.—Houston [14th Dist.] 2012, pet. 

denied) (explaining that, in a case tried to a jury, a motion to disregard preserves legal sufficiency 

challenge and a motion for new trial preserves a factual sufficiency challenge).

6 ARTICLE 5. PAYMENT

. . .

(f) The balance of contract funds (final payment), less offsets of Contractor, shall 

be payable (7) days after the last of the following: (i) the Project is completed; (ii) 

the Project is accepted by Owner and Architect; (iii) Owner pays the full contract 

price to contractor; and (iv) Subcontractor has fully performed all of its obligations 

hereunder, including the furnishing of close-out documents.
13

close-out documents. However, other contract provisions, namely those in Article 

7, permitted Horizon to terminate the Contract—at is sole discretion and for its 

convenience—before project completion. In that circumstance, Article 7(h) granted 

Rivera the right to receive payment for all work actually performed in accordance 

with the Contract through the date of notice of termination.7 

Salvador and Brian testified that Horizon instructed Rivera to stop work on 

the project before Rivera completed the exterior painting and that Rivera had 

completed all other tasks except for the exterior painting when Horizon told it to 

stop. According to Salvador, Horizon “didn’t want to pay no more.” A reasonable 

fact finder could have accepted this testimony and found that Horizon terminated the 

Contract for convenience, as was its right under Article 7(g). Upon termination, 

Rivera was obligated to “immediately stop work” and became entitled to receive the 

“costs incurred for work actually performed” less any “costs of (or credited for) 

correction.” It is undisputed that Horizon did not pay Rivera any of the retainage it 

withheld for the work that Rivera performed before termination. Thus, the jury 

7 ARTICLE 7. TERMINATION FOR DEFAULT, TERMINATION FOR 

CONVENIENCE

. . .

(g) Contractor may terminate Subcontractor for Contractor’s convenience (and 

without the requirement to prove a default under this contract) in any event, 

including in the event that circumstances change such that it is in Contractor’s 

interest to terminate this Subcontract. . . . In the event of a Termination for 

Convenience, Subcontractor shall immediately stop work and shall be entitled to 

payment for all work performed under (and in accordance with) this Subcontract, 

together with any direct job-site costs related to the termination. . . .

(h) In the event of termination under Article . . . 7(g), Subcontractor shall have the 

right to payment only of costs incurred for work actually performed upon (and in 

accordance with) the Subcontract through the date of notice of termination (plus a 

reasonable mark-up not to exceed 10% for overhead and profit upon this work less 

(i) amounts paid to date, (ii) any costs of (or credited for) correction) and (iii) 

Contractor’s offsets. . . .
14

reasonably could have found that Horizon materially failed to comply with the 

Contract by not paying Rivera some or all of the retainage withheld for work actually 

performed through the date of termination.8 We conclude this finding is supported 

by legally sufficient evidence.

Horizon’s reliance on Article 5(f) as support for its contention that it never 

owed a duty to pay the retainage because the work was never completed is 

misplaced. If Horizon terminated for convenience before project completion, the 

payment conditions specified in Article 5(f) would never materialize. Because the 

jury reasonably could have found a termination for convenience occurred, the 

provisions in Article 7(h) apply. 

In any event, Horizon says it could not have breached the Contract first 

because Rivera did not complete the scope of work at issue and a “reasonable 

factfinder could not disregard the inevitable fact that Rivera’s poor workmanship 

and failure to complete predated (and, in fact, resulted in) Horizon’s refusal to pay.” 

To the contrary, the jury reasonably may have found that Rivera materially failed to 

comply with the Contract because the exterior painting was never completed, but 

that Rivera’s failure occurred after Horizon’s material breach. Horizon told Rivera 

to stop work on the exterior painting and to apply the block filler, which Rivera did, 

as all agreed. The jury reasonably could have found that Horizon failed to make any 

further payments after Rivera completed the block-filler work, and that Horizon 

instructed Rivera not to complete the exterior painting that Rivera was ready and 

willing to complete. Thus, the jury reasonably could have found that Horizon’s 

failure to pay amounts due up to the time of termination pre-dated Rivera’s failure 

8 Horizon asserts that the costs of correcting Rivera’s work exceeded the amount of 

retainage withheld and thus it owed Rivera nothing. We address this point in connection with our 

damages discussion, infra.
15

to complete the exterior painting. Once Horizon refused to pay for work performed 

through the time of termination, Rivera was legally excused from any obligation to 

complete the exterior painting. See Mustang Pipeline Co., 134 S.W.3d at 196. 

As to Rivera’s poor workmanship allegedly occurring prior to termination—

such as failing to complete the stage as required by the second change order or failing 

to provide various paperwork or obtain inspections/permits—the jury reasonably 

could have determined that those failures were not material. Thus, the jury could 

have found that Rivera did not materially breach the Contract before Horizon 

materially breached the Contract.

We conclude that the above evidence is legally sufficient to support the jury’s 

finding that Horizon materially breached the Contract first. Moreover, examining

the entire record, including all the evidence both in favor of and contrary to the 

finding, we also conclude the evidence supporting the finding is not so weak as to 

make the finding clearly wrong and manifestly unjust. See Bennett, 489 S.W.3d at

66; Star Enter., 61 S.W.3d at 462. This was a short trial with only three witnesses. 

In either a legal or factual sufficiency review, issues of credibility and reconciling 

conflicts within the evidence are for the jury. See, e.g., Harris County v. Coats, 607 

S.W.3d 359, 381 (Tex. App.—Houston [14th Dist.] 2020, no pet. h.). In determining 

that Horizon materially breached the Contract first, the jury apparently found Brian 

and Salvador credible and resolved any conflicts in Rivera’s favor, which was its 

prerogative. And although the jury found that Rivera materially breached the 

contract as well, the jury could have determined that Horizon’s failure to pay Rivera 

the amount due once Horizon terminated the Contract occurred before any material 

breach by Rivera. E.g., Mustang Pipeline Co., 134 S.W.3d at 199-200. 

In sum, viewing the evidence either in favor of the jury’s finding or in a neutral 

light, the evidence enabled reasonable and fair-minded people to reach this verdict, 
16

and it is not so weak as to be clearly wrong and unjust. Because legally and factually 

sufficient evidence supports the jury’s prior material breach finding, we overrule 

Horizon’s second issue.

C. Sufficient evidence supports the jury’s damages award.

Having concluded the evidence supports the jury’s finding that Horizon 

materially breached the Contract first, we proceed to consider Horizon’s evidentiary 

challenge to Rivera’s damages. In its first issue, Horizon asserts that the jury’s 

damages finding is unsupported by legally and factually sufficient evidence because 

Rivera failed to prove the remedial costs associated with correcting Rivera’s 

deficient performance.

9

 

During the trial, Rivera invoked the doctrine of substantial performance, 

which often applies in construction contract disputes like this one. As a general rule, 

“a party to a contract who is himself in default cannot maintain a suit for its breach.” 

Dobbins v. Redden, 785 S.W.2d 377, 378 (Tex. 1990) (per curiam). In the 

construction context, however, a contractor who has substantially, though not fully, 

performed may still sue to enforce an agreement and recover damages for material 

breach. See id. Grounded in equity, the substantial performance doctrine allows a 

contractor who has substantially performed a construction contract to assert a breach 

of contract claim rather than rely merely on a claim for quantum meruit. See Vance 

v. My Apartment Steak House of San Antonio, Inc., 677 S.W.2d 480, 481 (Tex. 

1984); Gentry v. Squires Constr., Inc., 188 S.W.3d 396, 403 n.3 (Tex. App.—Dallas 

9 Horizon preserved error on this issue in the trial court because it objected to submission 

of the breach of contract questions on the ground that Rivera failed “to meet its burden of proof in 

presenting evidence of the reasonable and necessary costs to complete [its] scope of work and 

remedy the defects” and thus was “entitled to no recovery.” See, e.g., Daniels, 368 S.W.3d at 748-

49 (party preserves legal sufficiency challenge by objecting to submission of jury question). The 

trial court overruled Horizon’s objection. Horizon also preserved its factual sufficiency challenge 

by raising it in a motion for new trial. Tex. R. Civ. P. 324(b). 
17

2006, no pet.). The doctrine does not permit the contractor to recover the full 

consideration provided in the contract because, by definition, the doctrine recognizes 

that the contractor is in breach of the contract, though not materially so. See Vance, 

677 S.W.2d at 482.

10 Although the contractor is allowed to sue on the contract, his 

recovery is decreased by the cost of remedying those defects for which he is 

responsible. Vance, 677 S.w.2d at 482. 

A contractor seeking recovery on a substantial performance theory has the 

burden to (1) plead substantial performance, (2) prove that he did substantially 

perform, and (3) prove both the consideration due him under the contract and the 

cost of remedying the defects due to his errors or omissions. Id. at 482-83. Whether 

Rivera pleaded and proved substantial performance is not at issue because the parties 

stipulated that Rivera substantially performed. We focus on whether evidence exists 

showing the consideration due less remedial costs. The court instructed the jury 

consistently with Vance because it directed the jury to consider only the “unpaid 

contract price less the cost of completion and remedying the defects, if any.” We 

measure the sufficiency of the evidence by the charge as given. See Columbia Med. 

Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 254 (Tex. 2008); TecLogistics, 

Inc. v. Dresser-Rand Grp., Inc., 527 S.W.3d 589, 595 (Tex. App.—Houston [14th 

Dist.] 2017, no pet.).

11

 

Thus, we proceed to examine the record to determine whether the jury 

10 The doctrine assumes that if there has been substantial performance, the builder’s breach 

is immaterial. Gentry, 188 S.W.3d at 403 n.3; Bayer Corp. v. DX Terminals, Ltd., 214 S.W.3d 

586, 599 n.11 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (“[S]ubstantial performance 

generally permits a party to a contract that breaches nonmaterial terms (but has otherwise 

substantially performed) to sue the other party to the contract for breach.”). 

11 We note the damages measure required by the substantial performance doctrine and 

given to the jury is, in this case, also consistent with the Contract terms, which upon a convenience 

termination entitled Rivera to payment for work performed less costs of correction.
18

reasonably could have awarded Rivera $3,875 in contract damages based on the 

evidence presented consistent with the court’s instruction.

First, we consider the amount the jury reasonably may have assessed as the 

unpaid contract price for work performed up to the time Horizon terminated. Based 

on the testimony, the jury could have accepted that the total contract price was 

$139,000, if the jury believed that Rivera timely completed the second change order. 

Rivera acknowledged, however, that it did not complete the exterior painting after 

termination, and therefore it was not seeking to recover $7,000 for that work. Thus, 

the jury reasonably could have found that the contract price for work performed up 

to termination was $132,000 ($139,000 less $7,000).12 

It was undisputed that Horizon paid Rivera $118,100. The total contract price 

less the amount paid equals $13,900 ($132,000 - $118,100 = $13,900). Thus, more 

than a scintilla of evidence exists to support a reasonable determination that the 

unpaid contract price was $13,900—the amount of retainage Rivera sought to 

recover.

To reach its damages award, the jury was instructed to deduct from the unpaid 

contract price “the cost of completion and remedying the defects, if any.” Though 

the parties stipulated that Rivera substantially performed, there was evidence that 

Rivera’s performance up to termination may have been deficient, requiring 

correction. Further, the jury reasonably may have determined that any deficiencies 

it believed occurred were immaterial and remediable. Horizon presented evidence 

through Jones that the reasonable and necessary cost to complete the work and 

remedy defects was $49,750. Because the jury awarded damages of $3,875, we may 

reasonably infer that the jury found that some of Rivera’s work was deficient and 

12 Rivera is not seeking damages for the block-filler work as part of its contract claim.
19

required correction; and we may further infer that the jury assessed the reasonable 

and necessary remedial costs to correct the deficiencies to be $10,025. The jury 

could have arrived at its damages award by deducting $10,025 from the unpaid 

contract price of $13,900 to find damages of $3,875.

Importantly, Salvador disputed Jones’s assertion that some items were not 

performed or required correction.13 Salvador also stated that the costs to complete 

some of the items Jones identified were much less than Jones’s estimate. Horizon is 

critical of this testimony because it is not accompanied by evidence that Salvador’s 

figures are reasonable and necessary. A party seeking to recover damages under a 

substantial performance theory has the burden to prove that the cost of remedying 

the defects due to his errors or omissions are reasonable and necessary. McGinty v. 

Hennen, 372 S.W.3d 625, 627-28 (Tex. 2012); Vance, 677 S.W.2d at 483. 

According to Horizon, it introduced the only evidence of reasonableness and 

necessity, and Rivera introduced none. For that reason, Horizon contends that the 

jury simply “could not have ignored” Jones’s testimony. Because Jones said the 

reasonable and necessary cost to complete the work is $49,750, and because those 

costs exceed the contract price remaining unpaid, Horizon claims Rivera is entitled 

to no damages. 

Horizon’s argument presupposes that the jury was required to accept Jones’s 

testimony and remedial cost figure in full and could not have found that remedial 

costs were less than Jones estimated. But this disregards the jury’s prerogatives. “A 

jury has broad discretion to award damages within the range of evidence presented 

at trial.” MEMC Pasadena, Inc. v. Riddle Power, LLC, 472 S.W.3d 379, 408 (Tex. 

13 For example, $30,000 of Jones’s $49,750 estimate related to the anticipated cost of 

installing new sheetrock, insulation, taping, floating, and painting. But Salvador testified that 

Rivera completed that particular work. 
20

App.—Houston [14th Dist.] 2015, no pet.). The evidence need not show exactly 

how the jury arrived at the specific amount awarded, nor is a jury tied to awarding 

damages exactly as requested by the injured party. See id. A jury is entitled to 

decide whether or how much of a witnesses’ testimony to accept. E.g., McGalliard 

v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986) (“[T]he trier of fact is afforded 

considerable discretion in evaluating opinion testimony on the issue of damages.”). 

Here, for instance, the jury may have discounted Jones’s testimony based on 

Rivera’s cross-examination. Jones acknowledged that Horizon had not actually 

incurred any costs in remedying or completing the work. And Jones’s estimate was 

based on photographs taken eighteen months after termination and was not based on 

input from any of Horizon’s project managers or superintendents associated with 

this job. Cf. id. (explaining that expert who had not seen house until nearly two years 

after leaking problems began could not testify as to the cost of repairs needed at time 

of leaks). Nor had Jones examined any project documentation, such as emails, 

invoices, or payments. Coupled with Salvador’s testimony that Rivera actually 

completed many of the tasks Jones said remained uncompleted, the jury reasonably 

could have accepted some of Jones’s testimony and rejected the rest. 

The amount the jury may have assessed as reasonable and necessary remedial 

costs is within the range suggested by the evidence heard by the jury, regardless of 

which party introduced it. Thus, there exists more than a scintilla of evidence to 

support the jury’s award of $3,875 in breach-of-contract damages. See, e.g., MEMC 

Pasadena, Inc., 472 S.W.3d at 409-10 (overruling plaintiff’s challenge to 

evidentiary sufficiency of jury’s damages award when the award fell within “broad 

range of possible damages amounts” supported by the evidence). Additionally, 

viewing all the evidence, we cannot say the jury’s finding is so against the great 

weight and preponderance of the evidence as to be manifestly unjust. We conclude 
21

the damages finding is supported by legally and factually sufficient evidence, and 

we overrule Horizon’s first issue. 

D. Sufficient evidence supports the trial court’s attorney’s fee award.

In Horizon’s third and final issue, it asserts that Rivera failed to provide 

sufficient evidence to support an award of attorney’s fees, an issue the parties 

submitted to the court. Horizon complains that Rivera’s three filings to prove its

attorney’s fees are inadequate because: 

• the affidavits pay lip service to the Andersen[

14] factors, but do not 

address them with sufficient particularity to allow any analysis;

• At least a quarter of Rivera’s time entries are generalities (e.g., “trial 

preparation”) insufficient to enable the necessary review of the 

particular services performed and the reasonable time required for 

doing them[;]

• Nearly $10,000 in fees sought by Rivera are for post-trial work 

which is not recoverable; and 

• In “segregating” hours between defendants, Rivera improperly 

double-billed nearly all his hours (e.g., 4/9/19 – billing for 16 hours 

of trial in single day).

Generally, the award of attorney’s fees rests in the sound discretion of the trial 

court. El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex. 2012). To establish 

entitlement to attorney’s fees, a prevailing party has the burden to prove his fees are 

both reasonable and necessary. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 

578 S.W.3d 469, 487 (Tex. 2019). The factors guiding the fact finder in determining 

the reasonableness and necessity of attorney’s fees include:

(1) the time and labor required, the novelty and difficulty of the

questions involved, and the skill required to perform the legal service

properly;

14 Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).
22

(2) the likelihood . . . that the acceptance of the particular employment

will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers

performing the services; and

(8) whether the fee is fixed or contingent on results obtained or

uncertainty of collection before the legal services have been rendered.

Id. at 494. Without evidence of these factors, “the fact finder has no meaningful

way to determine if the fees sought are in fact reasonable and necessary.” Id.

Rivera’s counsel, Derek U. Obialo, submitted several affidavits and copies of 

billing records in support of his claim for attorney’s fees. In his first affidavit, signed 

April 12, 2019, Obialo stated that his rates were $300 per hour for his services and 

$150 per hour for paralegal services. Obialo opined, “The fees charged in this case 

are customarily charged in this area for the same or similar services for an attorney 

with my experience, reputation, and ability, considering the amount in controversy, 

the time limitations imposed, and the results I obtained.” The initial invoice attached 

to this affidavit was heavily redacted, however, such that the description of services 

was removed. The total time billed on this redacted invoice (as of April 12, 2019) 

was 238 attorney hours and 69 paralegal hours, for a total of $81,750. 

In July, Obialo supplemented his original submission with another affidavit 

and an unredacted billing statement. In this second affidavit, Obialo stated:

I have reviewed the attached legal services invoice and the hours 

charged in this case and it is my professional opinion that the legal fees 

associated with this litigation are reasonable, necessary and customary 

in Harris County and surrounding counties. My opinion was acquired 

by a review of the case file and the various pleadings in this case and 
23

documents relevant to this case, as well as confidential attorney client 

privileged information. I also base my opinion on similar charges in 

other cases charged by me and other similarly situated attorneys in 

similar locations in Harris County.

Obialo’s invoice attached to this affidavit was unredacted and provided descriptions 

for each line item billed. As well, for many line items, the invoice included hours 

for both Horizon and 4922 Holdings listed separately. The total hours billed (as of 

July 24, 2019) for working on Rivera’s claims against Horizon increased to 269 

attorney hours and 71 paralegal hours. This invoice additionally reflected 232.50 

attorney hours associated with Rivera’s claims against 4922 Holdings. Obialo’s 

invoice indicated total fees of $91,350 related to Horizon and $80,400 related to 

4922 Holdings.

Finally, in August, Obialo filed another supplemental affidavit. In this 

affidavit, he provided more detail about his fees and the services he provided:

3. It is my opinion that the $300 per hour I charged as an attorney in 

this case is reasonable, the $150 per hour charged by my firm for Maria 

Medina’s legal assistance services performed under my supervision is 

also reasonable fee charged for paralegal services for similar tasks and 

similarly skilled and experienced person performing paralegal work for 

more than one year in Harris County. This is also informed by the fact 

that Defendants’ attorneys’ hourly rates are in a range that is much 

higher than the hourly rate charged by Plaintiff’s attorney.

4. Plaintiffs legal fees incurred against Defendants Horizon United 

($91,350) and 4922 Holdings ($80,400) and the total billable hours of 

340 against both Defendants in this case are reasonable and compare 

favorably with Defendants’ legal fees of $72,391 and billable hours of 

273. I have been working on this case about a year before Defendants 

hired their current law firm and Ms. Norman; and I believe I have 

performed much more intensive and extensive work in this case than

all Defendants’ attorneys put together. This is informed from the 

review of the invoices submitted by the Defendants’ attorneys and 

comparison with the work that I and my paralegal, Maria Medina, 

performed in this case.
24

5. Beyond the work performed up to trial, Defendants have continued 

to file motions challenging the verdict and requesting a judgment in 

their favor which necessitated more legal work for me and my legal 

assistant. From a comparison of the invoices submitted by Plaintiffs 

attorney and Defendants’ attorneys, the difference between the total 

legal fees billed to Defendants (approx. $70,000) and the total legal fees 

billed to Plaintiff within the same time period (approx. $80,000) is 

comparable with the industry.

6. Plaintiffs legal fees and the billable hours were properly segregated

between the parties. As stated in my earlier attorney fees’ affidavit, the 

billable hours were segregated between the two defendants, but the 

issues – claims, defenses and counterclaims in this case – were so 

inextricably intertwined that segregation among them is futile. All 

efforts expended in addressing the counterclaims by Defendants were 

an advancement of the claims of Plaintiff, and vice versa.

7. On four instances when this case came close to trial that necessitated

Plaintiffs intense preparation for trial, my paralegal and I intensely 

performed trial preparation work to get ready for an impending trial and 

those efforts were reflected in my fee statement as “trial preparation.”

These efforts entailed conducting mock trials and strategy meetings, 

drafting voir dire, examination questions and opening and closing 

statements, research and arguments, on my part, and preparing trial 

binders, exhibits, trial props and displays, and participating in mock 

trials on the part of my legal assistant. Defendants also billed for “trial

preparation” work as well, which were reflected in their attorney fee 

invoices, supporting the fact that these are reasonable and known details 

of work performed in readiness for trial.

8. Lastly, in addition to prosecuting Plaintiffs claim of $21,650, I had 

to defend against Defendants’ counterclaim of almost $50,000. I 

intensely prepared for and attended 4 hours of informal mediation at 

Defendants’ offices at Defendants’ request. I also prepared for and 

attended 4 hours of deposition of Plaintiff. The tactics and strategy 

adopted by both defendants in this case made it more difficult and 

needed extensive and intensive work on my part. The final result

obtained in a favorable jury verdict supports the reasonableness of the 

fees charged by my firm in this case, and a review of Defendants’ legal 

fees’ invoice of almost $70,000 also demonstrate the reasonableness 

and necessity of the legal fees charged by my firm to the Plaintiff in 

this case.
25

“Sufficient evidence includes, at a minimum, evidence of (1) particular 

services performed, (2) who performed those services, (3) approximately when the 

services were performed, (4) the reasonable amount of time required to perform the 

services, and (5) the reasonable hourly rate for each person performing such 

services.” Rohrmoos Venture, 578 S.W.3d at 498. In our view, although they are 

not a model of clarity, Obialo’s multiple affidavits and billing records fulfill these 

requirements. Horizon’s concerns about double billing and hours billed for 

unrecoverable post-trial work are addressed by the trial court’s findings of fact,

wherein the court reduced the hours billed and removed potential double billing 

issues. The trial court combed through Obialo’s invoice, reducing many of the 

hourly amounts reflected, removing all hours reflected for services connected with 

Rivera’s claims against 4922 Holdings, and reducing by half the amount billed for 

paralegal hours. See, e.g., El Apple I, Ltd., 370 S.W.3d at 763 (“Charges for 

duplicative, excessive, or inadequately documented work should be excluded.”). All 

told, the trial court reduced the attorney’s hours reflected in the invoice to 156.75. 

The court found that “$52,350 is owed in reasonable and necessary attorney’s fees 

by Defendants” and that “[s]egregation of the claims was not reasonably possible as 

they were intertwined.” 

Horizon has not challenged these findings on appeal, and we generally defer 

to the trial court’s findings because it “possesses a superior understanding of the case 

and the factual matters involved.” See id. at 764. The affidavits and billing records 

provided in this case provided sufficient information for the trial court’s calculation. 

For the foregoing reasons, we overrule Horizon’s third issue.
26

Rivera’s Cross-Issues

A. Rivera is not entitled to a larger damages award.

In its first cross-issue, Rivera asserts that the trial court erred in awarding 

$3,875 in damages, rather than $17,775, which the jury determined was the value of 

the labor and materials provided by Rivera for which it had not been paid. Rivera 

contends that its lien claim was “comprised of damages for breach of the contract 

and damages for the value of work done outside of the contract for which Rivera 

was not paid.” Thus, according to Rivera, “the trial court should have entered 

judgment for the higher jury damage award of $17,775 for [the] value of unpaid 

labor and services,” disregarding “the lesser jury award of $3,875 for contractual 

damages.” Although Rivera provides no legal authority for this proposition in its 

opening brief,

15 Rivera asserted in its reply brief and again during oral argument that 

these damages should have been awarded under a quantum meruit theory. 

However, the jury’s $17,775 finding is predicated on the jury’s finding 

regarding the propriety of Rivera’s lien.16 Thus, this “damages” finding was 

predicated on the lien-foreclosure question, not on a quantum meruit liability 

question.17 Accordingly, these damages are not available under a quantum meruit 

15 Thus, we could overrule this issue based on briefing waiver. See Tex. R. App. P. 38.1(i); 

Harrison v. Reiner, 607 S.W.3d 450, 468 (Tex. App.—Houston [14th Dist.] 2020, pet. denied).

16 To prevail on a claim to foreclose a constitutional mechanic’s lien, a lienholder must 

prove the performance of the labor and the existence of the debt. San Antonio Credit Union v. 

O’Connor, 115 S.W.3d 82, 107-08 (Tex. App.—San Antonio 2003, pet. denied). In today’s case, 

the only finding supporting the existence of a debt is the jury’s determination that Horizon failed 

to comply with the Contract, with associated damages of $3,875. Cf. Wallace Roofing, Inc. v. 

Benson, No. 03-11-00055-CV, 2013 WL 6459757, at *12 (Tex. App.—Austin Nov. 27, 2013, pet. 

denied) (mem. op.) (explaining that appellant would have been entitled to recover only breach-ofcontract damages on lien foreclosure claim, but because opposing parties’ damages exceeded the 

amount of appellant’s damages, trial court did not abuse its discretion in denying appellant’s lien 

foreclosure claim). 

17 Although Rivera sought jury questions on quantum meruit and objected to the trial 

court’s refusal to include these questions in the jury charge, Rivera does not assign error to the 
27

theory of recovery because that theory was not included in the jury’s charge. See 

Tex. R. Civ. P. 279. 

We overrule Rivera’s first cross-issue.

B. Rivera has waived his prompt pay interest complaint.

In its second cross-issue, Rivera contends the trial court erred by awarding 

pre-judgment interest at only 5.5%, when such interest should accrue at 18% in 

accordance with the jury finding that Horizon did not promptly pay for properly 

performed work. 

In its motion for entry of judgment, Rivera requested pre-judgment interest 

“at the annual rate of five percent (5%) per annum.” He submitted a proposed 

judgment reflecting the 5% pre-judgment interest rate. Later, Rivera responded to 

Horizon’s JNOV motion. In that response and for the first time, Rivera included in 

the prayer portion of his response a request for pre-judgment interest “at the annual 

rate of 18% per annum.” He attached a second proposed judgment reflecting prejudgment interest at an 18% rate. However, the trial court signed Rivera’s first 

proposed judgment, which awarded pre-judgment interest at the rate of 5%.

18 Rivera 

did not seek to modify the judgment.

Generally, to preserve error for our review, the complaining party must raise 

the complaint before the trial court by way of a timely request, objection, or motion 

and either obtain an express or implicit ruling or pursue the request until the trial 

absence of a quantum meruit question. “With the exception of fundamental errors, a court of 

appeals must not reverse a trial court’s judgment in the absence of properly assigned error.” 

Brumley v. McDuff, 616 S.W.3d 826, 830 (Tex. 2021).

18 The trial court struck through the “5% per annum” and instead awarded Rivera 5.5% per 

annum, the judgment interest rate at the time of judgment. See Tex. Fin. Code § 304.003. Rivera 

asserts in its reply brief that its request for prompt pay violation interest “was argued at a hearing 

before the trial court,” but we have no such hearing included in our record. 
28

court refuses to rule. See Tex. R. App. P. 33.1(a). Filing a motion with the trial 

court clerk does not establish that the motion was properly presented to the trial 

court. Johnson v. Mohammed, No. 03-10-00763-CV, 2013 WL 1955862, at *4 (Tex. 

App.—Austin May 10, 2013, pet. dism’d) (mem. op.); In re Blakeney, 254 S.W.3d 

659, 662 (Tex. App.—Texarkana 2008, orig. proceeding); see also Burnett v. Carnes 

Funeral Home, Inc., No. 14-12-01159-CV, 2014 WL 2601567, at *5 (Tex. App.—

Houston [14th Dist.] June 10, 2014, no pet.) (mem. op.). “A trial court is not required 

to consider or rule on a motion that has not been called to its attention.” Johnson, 

2013 WL 1955862, at *4. 

Rivera never moved for the award of prompt pay interest. Rivera’s only postverdict mention of prompt pay interest was a brief reference in the prayer of his 

response to Horizon’s post-verdict motions and in an attached exhibit. Rivera did 

not file any post-judgment motion to modify the award of interest. Under these 

circumstances, we conclude that he has waived his complaint regarding prompt pay 

interest.

We overrule Rivera’s second cross-issue.

Conclusion

Having overruled Horizon’s issues and Rivera’s cross-issues, we affirm the 

trial court’s judgment.

/s/ Kevin Jewell

Justice

Panel consists of Chief Justice Christopher and Justices Jewell and Poissant.