### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00175- CV

C. A. Walker, Inc., Appellant

v. Total Roofi ng Services, Inc., Appellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 277 TH JUDICI AL DISTRICT

NO. 05- 010- C277, HO NORAB LE K EN ANDERSON, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellee Total Roofing Service s , I n c. (“TRS”) filed suit ag ainst appellant C. A. Walker, I nc. (“Walker ”) for b re ach of a construction contra ct. After a bench trial, the trial court a

war ded TRS $5,957.75 in damag es, plus attorney ’s fee s. Walker appe als, arguing that the trial court err ed in failing to find that TRS committed a prior materia l brea ch of the contra ct and in calc ulating the awa

rd of damag es in favor of TRS. We will modify the judgme nt of the trial court and af firm as modified.

F ACTUAL AND P ROCEDURAL BACK GR OUND The following facts are undisputed. TRS, a roofingsubcontrac tor, submitted a bid
to perf orm work re lated to the construction of a Randall’s g roce ry store in Round Rock, Texas. Wa lk e r , th e g e n e ral contra ctor, acc epted TRS’s bid and neg otiated a subcontrac t under which Walk e rag ree d to pay TRS $289,975.50, subject to a ny additions and modifications. The c ontrac t defined the scope of the wor

k as follows:

0 07410 COMPOSI TE METAL PAN E L S[ ], 0 7 4 1 5 M E T A L RO O F PA N E L S, 0 7 5 1 0 1 BU I L T-UP ASPHAL T ROOFI NG, 07511 ROOF I

NG TESTI

NG & I NSPECTI ON SERVI CE FOR BU I L T-UP ASPHAL T ROOFI NG, 076 2 0 SHEET METAL FLASHI NG A N D T RIM A

N D 7 7 2 0 RO O F A CC E SSORI ES including the following items: furnish and install composite metal panels, metal roof panels, built-up asphalt roofing , roofing testing & inspection service for built-up asphalt roofing , sheet metal flashing and trim and roof acc essories as shown per the above ref ere nced plans and specific ations[,] eng ineer ing a nd lay out for the r oofing & me tals scope of work.

The contra ct further provided that any chang es must be made by proper ly executed written chang e order and that “[a]ny and all chang es perf ormed prior to, or without rec eipt of, a proper ly authorized written cha

ng e orde r will not be paid for by C. A. Walker Construction or by the Owne r.” TRS beg an work on the p rojec t in J anuar y 2004. The following month, a dispute

arose conce rning whether TRS was responsible for buying and installing the composite metal panels
to be used on the store’s fac ade, which wer e not part of the roofing sy stem. Walker asser ted that the
contra ct unambig uously require d TRS to purcha se and install all composite metal panels identified in the arc hitect’s draw ings and specific ations, including the panels on th e b u il ding fac ade, while TRS
too k t h e p o s i t i o n that it was responsible only for the panels to be installed as part of the store’s roofingsy stem.

I n an attempt “to resolve [t heir] differ ence s reg arding the composite panel portion of [t he parties’] contra ct,” TRS submitt ed a letter pr o posal to Walker out lining a compromise: TRS

Specification number 7410 states that the applications of composite metal panels includes 1 both ext erior a

nd interior composite meta l panels. 2would purcha se only the panels that it believed wer e cover ed by its bid (i.e., the roof panels), Walker

would purcha se the rema ining panels (i.e., the panels for the building fac ade) , and TRS would install all of the panels. Walker did not respond in writing to TRS’s letter; sub s equently , howeve r, the parties orally ag ree d that Walker would provide the rema ining composite metal panels for the fac ade and TRS would install those panels and complete the rema ining pu n ch l i s t items for no further consideration. Walker spent $43,765 to purcha se the compo s i t e m etal panels for the building

2 fac ade, which TRS then installed. 3

After the installation of all of t he composit e metal panels was complete, TRS filed suit ag ainst Walker to collect on “unpaid applications for pay ment and reta inag e due and owing

. . . for labor, materia ls, and equipment.” TRS asser ted that it was owed $50,966.13 based on Walker’s brea ch of the orig inal roofing subcontrac t or, in the alterna tive, under quantum meruit. In addition, TRS soug ht “re cover

y in quantum meruit, sworn ac count and for breach of contra ct i n the s um of $5 7 , 0 2 1

. 5 9 for the labor provided to Def endants for the non-roof related composite metal panels installed by Plaintiff

. . . , which labor was outside the s co p e o f t h e co n trac t.” TRS also soug ht pre- and post-judg ment interest and attorney ’s fe es.

The terms of the parties’ oral ag ree ment are rec ited in Walker ’s Third Amende d Answer 2 and Counterclaims, its live pleading in this case , which comports with the descr iption of the oral ag ree ment in TRS’s st atement of fac ts in it s appellee ’s brief

. For rea sons that are disputed, the fac ade was not completed entirely with composite metal 3 panels, as contemplated by the orig inal plans, and was instead completed with other m at er ials, including stone and stucc o. Michae l Krave tz of Heig hts Venture Architec ts testified that this was a desig n-driven decision made by the owner in order to meet the deadline for the s tore’s g rand ope ning. 3Walker counter claimed for brea ch of contra ct and filed a verifie d denial as to TRS’s

suit on a sworn acc ount. Acc ording to Walker’s plea dings, TRS brea ched the orig inal contra ct by failing to provide all of the composite metal panels requi re d o n the projec t and brea ched the subsequent ora l contrac t by failing to complete the punch list items and repa irs and by demanding pay ment for se rvice s that it had previously ag ree d to provide at no fur ther c ost to W alker

. The case was tried to the court, wi t h t he parties stipulating to cer tain fac ts at trial, including :

Walker made total pay

ments to TRS of $256,383.84. Walker asser

ts TRS’s g ross subcontrac t price , with approve d chang e order s, is $295,130.46. TRS asserts its gross c ontrac t price, w ith chang e orde rs, is $307,349.97. The centr al issue in this case is whether the Parties’ contra ct require d TR S t o purcha se and install these disputed CMPs [ composite metal pane ls]

.
At trial, TRS put on evidenc e that it understood its initial bid to cover only the work related to the roof installation, not to include the composite metal panels on the building ’s fa cade , and that this understanding was ref lected in the parties’ contra ct. Walker objected to this testimony 4

This evidenc e was introduced primarily throug h the testimony of Pete Pichini, a part-owner 4 and officer of TR S, who t estified that, as a roofe r, he limit ed his bid to the roofing work and that, rea ding the projec t specific ations in conjunction with the arc hitect’s draw ings, it was clea r that the installation of any composite metal panels beyond those requir ed for the roof would be outs ide of t h e s co p e of his bid and subcontrac t. Documenta ry and testimonial evidenc e established that composite metal panels wer e ca lled for unde r the “ walls and pa rape ts” section of the arc hitectura l plans for the building, in addition to the roofing sy stem. Pichini further testified that the portion of TRS’s bid relating to the composite metal panels was only $22,000—far less than the bids Walker rec eived from other subcontrac tors to buy and install all exterior composite metal panels to be used 4on the basis that the contract was unambig uous in requiring TRS to purcha se and install all of the

composite metal panels for the projec t; howeve r, Walker also put on extrinsi c evidence reg arding the meaning of the contra ct specific ations and whether the composite metal panels for the exterior walls of the building wer e included in TRS’s scope of work. 5

The trial court also hear d evidenc e reg arding the amounts outstanding to TRS based

on its unpaid pay

ment ap p l i ca t i ons. Acc ording to Pete Pichini of TRS, it was owed a total of $ 4 9 , 7 2 2

. 7 5 , wh ic h in c lu d e d it s u n paid pay ment applications and chang e order s (totaling $4 2 , 5 7 6

. 3 4 ) , and two additional unpaid i n voices (in the amounts of $2,628.24 and $4,518.17). On

cross-e x amination, Walker elicited testimony from Pichini that the latter two invoices did not have written, approve d chang e order s associate d with them, nor did one of TRS’s pay ment applications. Walker also put on evidenc e that it incurre d additional expenses—including $8,000 worth of stucco work by Connelly Masonry and $6,850 for additional reme dial work by New Dawn Enterpr ises—as a result of TR S’s failure to purcha se and install all of t he composit e metal panels for the buildingfac ade a

nd to complete the punc h list i tems for whic h it was responsible. At the conclusion of the trial, the court found in favor of TRS, awa rding it actua l damag es in the amount of $5,957.75, plus pr e- and post-judgme nt inter est and attorney ’s fee s, and

on the store, i.e., f

or both the roof

and fa cade

. Thomas Walker, Walker’ s vice pre sident and direc tor of operations, testified t hat, base d 5 on his rea ding of the contra ct, the panels at issue wer e included within TRS’s scope of work and that at no time during his neg otiations with Pichini did he indicate that there would be any limit ation on the scope of his composite metal panel wor k. In addition, Michael Kr avetz, a re prese ntative from the arc hitecture firm that desig ned and drew up the construction documents for the Randall’s projec t, testified that, in his view, specific ation 07410 “cove rs all composite metal panels on the projec t

. . . reg ardle ss of location.” 5order ing that Walker take nothing on its counter claims. The trial court issued the following finding s

of fa ct and c onclusions of law re levant to this appea l:

Wit h chang e order s and modifications, the Co ntrac t total ultimately amounted to $306,106.59, pay able by

CA Walker to Total Roofing

. CA Walker purc hased c omposite metal panels at a cost of $43,765.00. Taking into c onsideration the cost of the composite metal panels, CA Walker owes Total Roofing $5,957.75 pursuant to the ter ms of the Contract. CA Walker failed to prove that Total Roofing owes CA Walker any amou n t of money pursuant to the ter

ms of the Contract. CA Walker failed to prove that CA Walker had any rig ht, contra ctually or otherwise, to withhold the $49,722.75 pay ment to Total Roofing. CA Walker bre ache d the C ontrac t by failing to pay Total Roofing $49,722.75, and Total Roofing preva ils on it s brea ch of c ontrac t claim. Be cause CA Walker purcha sed composite metal panels at a cost of $43,765.00, it is entitled to an offse t for that amount. Taking into a ccount CA Walker’s offse t of $43,765.00, Total Roofing is entitled to judgme nt ag ainst CA Walker for $5,957.75 in princ ipal. Total Roo fi n g d i d n o t brea ch the Contract, and CA Walker does not preva il on its brea ch of contra ct counter claim or any other claim CA Walker asser ted ag ainst Total Roofing in this ac tion. Walker did not produce sufficie nt cre dible evidenc e to sustain its burden of proof that would entitle it to a cre dit for its pay ment to Connoll y

[si c] Masonry

. Walker did not produce sufficie nt cre dible evidenc e to sustain its burden of proof that would entitle it to a cre dit for its pay ment to New Da

wn Enterpr ises.

Walker now appea ls, arguing that (1) TRS committed a prior materia l brea ch of the
contra ct when it decla

red the purcha se and installation of composit e metal panels for the building
6fac ade to be outside of its contra ctual scope of work, there by relieving Walker of liability as a matter

of law, (2) the trial court err ed in its calc ulation and awa rd of damag es to TRS, and (3) the trial court should have a

war ded Walker, not TRS, attorney ’s fe es as the pr evailingparty

.

STANDARDS OF REVIEW Walker’s first issue challeng es the trial court’s conclusion of law that Walker, not TRS, brea ched the parties’ co n trac t and the leg al and fac tual sufficie ncy of its fac t finding s in support of the judgme nt. We revie w the trial court’s leg al conclu s i o n s de novo. BMC Software Belgium, N.V. v

. Marchand , 83 S.W .3d 789, 794 (Tex. 2002)

. Appellate courts revie w the fac tual and leg al sufficie ncy of the trial court’s finding s of fac t acc ording to the same sta n d ar d s as jury findings

. Ca t a lina v. Blasdel , 881 S.W .2d 295, 297 (Tex. 1994). In our revie w of the leg al sufficie ncy of the evidenc e supporting the judgme nt, we must deter mine whether the evidenc e at trial would enable rea sonable and fair -m i n d ed people to rea ch the verdic t under review. City of Keller v. W ilson , 168 S.W .3d 802, 827 (Tex. 2005). We revie w t he evidence in the l ight most favor able
to the verdic t, cre diting favor able evidenc e if a rea so n a b le fac t finder could and disreg arding contra ry evidenc e unless a rea sonable fac t f inder could not. Id. A leg al-suff iciency issue will be sustained if the re cord revea ls one of the foll owing : (1) the complete abse nce of a vital fa ct, (2) the court is barr ed by rules of law or of evidenc e from g iving weig ht to the only evidenc e offe red to prove a vital fac t, (3) the evidenc e o ff er ed t o prove a vital fac t is no more than a scintilla, or (4) the evidenc e established conclusively the oppos ite of t he vit al fact. Id. Under our factual-suf ficienc y standard of revie w, we weig h all the evidenc e in the rec ord and may overturn a finding only if it is so ag ainst

7the g reat weig ht and pre pondera nce of the evidence as to be clearly wrong and manifestly unjust. See Cain v. Bain , 709 S.W .2d 175, 176 (Tex. 1986).

DISCUSSIO N By its first issue, Walker urg es that the trial court err ed in its inte rp retation of the parties’ unambig uous contra ct by failing to f ind that T RS committed a prior materia l brea ch whe n it ref used to purcha se and install the composite metal p an el s t o b e used on the building fac ade. Acc ording to Walker, the “g reat weig ht and preponde ranc e of the evidenc e demonstrates that TRS’s prior materia l brea ch of the parties’ Subcontra c t e xc u s e d Walke r’s perf ormanc e.” TRS responds that the contra ct is unambig uous in its favor , requiring TRS to buy and install only those composite metal panels related to the roofing sy stem. TRS further argues that, even if the contra ct wer e ambig uous

on this p o i n t, Walker waived any claim that TRS brea ched the orig inal subcontrac t when it subsequently ag ree d to resolve the dispute pursuant to the oral ag ree ment it rea ched with TRS, which amounted to “a

novation of the orig inal contra ct.” As it indicated at the close of the evidenc e, the trial court’s deter mination that TRS should preva il on its brea ch-of -contra ct claim was predic ated on the court’s ruling that the orig inal
contra ct was ambig uous, there by cre ating a fac t issue as to the parties’ intent, a nd on its resolution of that fac t issue in TRS’s favor , despite the absenc e of any express finding s or conclusions that the
contra ct was ambig uous. Whether a contra ct is ambig uous is a question of law, subject to de novo revie w. Bowden v. Phillips Petroleum Co. , 247 S.W .3d 690, 705 (Tex. 2008). When construing a written contra ct, the court’s primary duty is to deter mine the intent of the parties as expressed in the instrument, see J.M. Davidson, Inc. v. W ebster , 128 S.W .3d 223, 229 (Tex. 2003), examining all
8p arts of the contra ct in light of the circ umstances surrounding its formation, Co l u mb i a Ga s

Transmissi on Corp. v. New Ulm Gas , 940 S.W .2d 587, 589 (Tex. 1996). A contra ct is not ambig uous if it can be g iven a definite or cer tain meaning as a matter of law. Co l u mbia Gas Transmissi on Corp. , 940 S.W .2d at 589. “On the other hand, if the contra ct is subject to two or more

rea sonable interpre tations afte r apply i n g the pertinent rules of construction, the contra ct is ambig uous, which cr eate s a fa ct issue on the par ties’ intent.” Id. I t is well settled that a court may conclude that a co n trac t is ambiguous even in the absenc e of such a pleading by either party

. Progr es s i ve Co u n t y Mut. Ins. Co. v. Kelley , 284 S.W .3d 805, 808 (Tex. 2009); J.M. Dav i d s o n , Inc. , 128 S.W .3d at 231; Sage St. Assocs.

v. Northdale Constr. Co. , 863 S.W .2d 438, 445 (Tex. 1993); Coker v. Coker , 650 S.W .2d 391, 393 (Tex. 1983). To deter m i n e i f a contra ct is ambig uous, we may examine extrinsi c evidenc e

conce rning the circ umstances surrounding the execution of the contra ct as they bear on the meaning of the terms the parties used. See National Union Fire Ins. Co. v. CBI Indus., Inc. , 907 S.W .2d 517, 521 (Tex. 1995); Sun Oil Co. v. Madele y , 626 S.W .2d 72 6 , 7 31 (Tex. 1981); City of Pinehurst

v. Spooner Addition W

ater Co. , 432 S.W .2d 515, 518-19 (Tex. 1968). The court may not consider extrinsi c evide nce, how ever , in order to contradic t or vary the meaning

of the e x plicit langua g e of the written contra ct. National Union Fire Ins. , 907 S.W .2d at 521. We examine that evidenc e only to assist us in understanding the object and pur pose of the c ontrac tual languag e. Id. Appl ying these rules to the prese nt case , we hold that the trial court did not err i n ruling that the contra ct at issue is ambig uous as to the scope of the subcontrac t work to be perf ormed by TRS. Ex amining that contra ct as a whole and the circ umstances prese nt when Walker and TRS

9enter ed into the ag ree ment, we find two rea sonable rea dings of the scope of work. On one hand, the

contra ct states that it is for “Roofingand Meta l,” and that the w ork to be perf ormed “ will include, but is not limit ed to” providing materia l and labor for “ composite metal pane ls” as well as “metal roof panels.” This lang uag e could rea sonably mean that the scope of the projec t would involve the purcha se and installation of metal panel s b ey o n d what was require d for the construction of the roof—i.e., composite metal panels for other parts o f t h e buil ding, such as t he walls and parape ts. On the ot h er hand, as TRS argued, the ref ere nce in the contra ct to the specific ation “007410 COMPOSI TE METAL PANEL S” could be rea d much more broadly , ref err ing not on l y t o metal panels for the roof and exterior walls and para pets, but also to any panels that might be used for the interior of the building, in acc ordanc e with the descr iption contained in specific ation 07410. Thus, it would be rea sonable to infer that the many ref ere nces to “roof

ing” circ umscribed the scope of the metal work, confining it only to the composite metal panels related to or nece ssary to construct the roof, a s opposed to all metal pane ls for the e ntire building.

Be cause the contra ct’s scope- of-wor k provision cannot be g iven a cer tain or definite leg al meaning , we a g ree with the trial court that it is ambig uous; theref ore, the trial court prope rly considere d extrinsi c evidenc e of the parties’ intent. The extrinsi c evidenc e admitted at trial showed that TRS, a roofing company , intended its bid to cover only those composite metal panels related to the roofingsy stem—those panels “ that tied into [ the] roofing sy stem as define d on the dra wing s,”

as Pichin i t es tified—and that the brea k-out of its bid dedicated only a small portion to materia ls costs, indicating that it did not inten d t o supply the composite metal panels to be used on the building’s e x terior wa lls and para pets. Acc ording ly , we conclude that the trial cour t did not err in

10impliedly

finding as a matter of fac t that the parties intended that their contract would not include composite metal panels unrelated to the roof’ s construction within its scope, and ther efor e did not

err in concludingthat TRS did not brea ch the c ontrac t. We overrule Walker ’s first issue. 6

I n its second issue, Walker complains that the trial court err ed in awa rdi ng TRS damag es “whe re the unambiguous languag e of the subcontrac t require d TRS to purcha se and install al l composite metal panels identified within the arc hitect’s specific ations.” We have al re ad y addre ssed this arg

ument in our resolution of Walker’s first issue, having deter mined that the contra ct is ambig uous and cannot be construed as a matter of law to require that TRS purcha se and install the composite metal pane ls for the building fac ade.

Wit hin its second issue, Walker further argues that the trial court err ed in calc ulating the total contra ct price to be $306,106.59, asser ting that this amount err oneousl y includes chang e order s that wer e not approve d by Walker in writing pursuant to the terms of their contra ct g overning modifications. Acc ording to Walker, the tota l am o u n t of the subcontrac t, as modified by the approve d chang e order s, was only $295,130.46, mea n i n g t h at the trial court “inflate d” the final
contra ct price by

$10,976.13. TRS responds that, of the $10,976.13 in dispute, $7,146.41 repr esents work that TRS perf ormed under the contra ct to reme dy damag e done to the roofing sy stem by other subcontrac tors and additional labor costs owing to the improper location of work perf ormed by another subcontrac tor. I n support of its rec overy , TRS points to two invoices, which Pichini testified wer e

Acc ording ly , we need not rea ch W alker ’s t hird i s s u e re gar ding attorney ’s fees, which is 6 predic ated on this Court’s reve rsing the trial court’s judgme nt that Walker brea ched the contra ct and rende ring judgme nt that Walker, not TRS, i s the preva iling par ty

. 11not chang e order s and there fore did not require Walker’s prior, written approva l. In the alternative, 7 TRS sug g ests that, “[e]ven if the invoices repr esente d work done outside the scope of the subcontrac t, the trial court’s inclusion of them in the damag es awa rd is supportable under the theory of quantum meruit, which TRS p l ea d ed

. ” Fi nally , TRS argues that the rema inder of the disputed amount is supported by evidence i n the form of a pay application that it submitt ed to Walker stating that the value of the work that TRS had completed under the parties’ contra ct as of November

18, 2004, “includingapprove d chang e orde rs, totaled $298,960.18.” I n its reply brief, Walker urg es that the pay application on which TRS relies includes

a proposed chang e order for $2,519.98 that Walker states wa s never approve d and was in fac t reje cted on the basis that the work it related to fell within TRS’s scope of work under the contra ct. We ag ree with Walker t h at TRS prese nted no evidenc e that this $2,519.98 chang e order was approve d in writing pursuant to the terms of the parties’ contra ct. There fore , the trial court err ed in including that a

mount in the total c ontrac t price. As to the rema ining disputed amounts, however, TRS prese nted more than a scintilla of evidenc e that they should be rec overe d in pay ment for work that it perf ormed under the contra ct and that Walker was responsible for any reme dial work and labor
costs that wer e necessar

y for TRS to complete the work withi n the s cope of its contra ct. See Cit y of Keller , 168 S.W .3d at 827.

Finally , Walker challeng es the sufficie ncy of the evidenc e supporting the trial court’s finding s that Walker failed to produce sufficie nt cr edible evidenc e entitling it to cre dits for its

I nvoice number 244885-D for $4,518.17 states that it is for the installation of “new T-tops 7 and lead jac k s t h at we re damag ed by others”; invoice number 244883-B for $2,628.24 is for “additional labor due to curbs being set in wrong location and having to be rese t in proper location.” 12pay

ments to Connelly Masonry and New Dawn Enterpr ises or supporting its claim for damag es resulting from TRS’s failure to supply a war ranty

. Wit h respe ct to its reque st for an offse t of $8,000
to Connelly Masonry , Walker asser ts that it prese nted undisputed documentar y evidenc e of damag es arising from TRS’s failure to complete the scope of its work, which forc ed Walker to substitut e stone and stucco for the composite metal panels that Walker should have initially purcha sed and installed

near the entra

nce of the store. Ha v i n g alre ady reje cted Walker’s argument that the contra ct was unambig uous in requiring TRS to purcha se an d install these disput ed composit e metal panels, we likewise re

ject its claim for da

mag es base d on TRS’s purported bre ach. Reg arding the pay

ments Walker made to New Dawn to “re pair roof leaks and install missing flashing an d o t her punch list items that wer e indisputably within TRS’s roofing scope of work,” the trial court hear d conflicting tes timony that it appar ently resolved in TRS’s favor

. The trial court, as fac t-finder , resolves conflicts in the evidenc e and deter mines the weig ht and cre dibilit y to g ive to witness testimony

. Y oung Chevrolet, Inc. v. Texas Motor Vehicle Bd. , 974 S.W .2d 906, 914 (Tex. App.—Austin 1998, pet. denied) ; see City of Keller , 168 S.W .3d at 819. Acc ording ly , the trial court was entitled to cre dit Pichini’s t es t i m o n y that TRS completed all punch list items for which it was responsible, and that any repa irs or punch list items that it did not perf orm resulted from Walker’s preve nting TRS from g aining acc ess to the store. We will not disturb the court’s resolution of evidentiar

y conflicts that turn on cre dibilit y deter minations or the weig ht of the evidenc e. See City of Keller , 168 S.W .3d at 819-20. Moreove r, Walker produce d no evidenc e that Walker tried to make any claim on the war

ranty , that TRS ref

used to perf

orm war ranty work, or that established the value

13of the war ranty

. For the fore g oing rea sons, we sustain Walker’s second issue in part, holding that 8 the trial court err ed in including the $2,519.98 chang e order in the final contra ct price

. We overr ule Walker’s sec ond issue in all other re spects.

The only testimony reg arding the value of the war rant y ca m e during Walker’s 8 cross-e x amination of Pichini: Q. There is certa inly

a value associate d with a war ranty . I s there not? A. Yes, sir.

. . . . Q. I s it a flat fe e? A. Yes, sir.

. . . . Q. What’s the value of the war ranty ? A. I t depends on the job. Q. What’s the value of the war ranty on this job? A. Idon’t reme mber. Q. Thousands of dollar s at least. Ag ree d? A. No, sir. Q. I t’s only

hundreds of

dollars? A. Yes, sir. 14CONCLUSION We modify the judgme nt to delete the $2,519.98 awa rd for the chang e order that was

err oneously

included in the trial c ourt’s deter mination of the final contra ct price , there by reduc ing the ac tual damag e aw ard in fa vor of TRS to $3,437.77, plus pr e- and post-judgme nt inter est at the
rate s determined by

the trial cour

t. As modified, we a ffirm the judg ment of the trial c ourt.

J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Modified and, a s Modified, Aff irmed Filed: Apr il 13, 2010

15