COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

CHR I STOPHER J. NELSON, Individually

and d/b/a EXCLUSIVE POOLS,

Appellant,

v.

BKM DEVELOPMENT, LP,

Appellee. §

§

§

§

§

§ No. 08-21-00068- CV

Appeal from the

125th Judicial District Court

of Harris County, Texas

(TC# 2015-38993)

MEMORANDUM OPINION

This case arises from a pool remodel gone bad. Appellee BKM Development, LP (BKM)

sued Appellant Christopher J. Nelson and his company, Exclusive Pools, over renovation to

BKM ’s swimming pool after local authorities closed the pool following a failed inspection. B ased

on a bench trial, the trial court found for BKM and ordered Nelson to pay actual damage s and

attorney ’s fees

. Nelson appeals the trial court’s judgment, arguing that the evidence is factually

insufficient to support: (1) Nelson ’s material breach of the construction contract; and (2) the trial

court’s award of actual damages

. For the following reasons

, we affirm. 1

1 This case was transferred from our sister court in Houston (14th District)

, and we decide it in accordance with the

precedent of that c ourt to the extent required by T EX .R.A PP .P. 41.3

.2 

### I. B ACKGROUND

A. Factual Background

BKM is a real

- estate limited partnership that holds and manages commercial properties.

A dam Kliebert is its agent who had the authority to enter contracts on behalf of BKM

. In May

2015

, Kliebert hired Nelson and his company, Exclusive Pools, to renovate an existing pool at one

of BKM ’ s properties. The pool was located between a Montessori school operated by Kliebert ’ s

mother and a nightclub Kliebert owned and operated. The pool was used by the children at the

school during the summer

. Kliebert wanted to remodel the pool so that it could also be used for

the nightclub. Kliebert ’ s vision was to construct a ledge to sub divide the existing pool into two

pools

, one of which would be very shallow. Nelson

, who told Kliebert that he was a professional

who had worked on thousands of pools, provided Kliebert with several price estimates for the pool

remodel.

The parties dispute which estimate the remodeling agreement was based on. According to

Kliebert, the initial estimate stated a total cost of $56,185 (Plaintiff ’ s Exhibit 4)

, but Kliebert and

Nelson negotiated for an ultimate contract price of $49,415 (Plaintiff ’ s Exhibit 5)

. BKM also

presented a third estimate from Nelson ( Plaintiff ’ s Exhibit 6) that yielded a total contract price of

$51,685

. As we explain below, this latter estimate formed the basis for the trial court ’ s award of

actual damages. Under all th ese estimate s

, Nelson would: (1) excavat e dirt from the pool; (2)

reinstall rebar and a add a gunite sun shelf; (3) add new lighting, tile, coping, decking

, and a

holding tank ; (4) relocate pool equipment; (5) add new decking overlay and repair cracks on the

existing decking; and ( 6 ) resurfac e the pool with white marble plaster. T he estimate also included

a payment schedule based on Nelson ’ s completion of specific tasks.3 Problems arose during the construction process. BKM introduced a series of text messages

detailing repeated issues with the pool ’ s construction and operation, as well as Kliebert ’ s repeated

attempts to have Nelson rectify the issues. These text messages alluded to (1) the shallow end

improperly filling with water; (2) the lighting and coping not being completed; (3) the construction

f alling behind schedule; (4) Nelson ’ s unapproved modifications of the contract ’ s provisions; and

(4) a crooked step in the pool. Kliebert also testified that th e pool did not function properly as the

water level in one pool was too low while the other overflow ed

.

T he pool remodel was never completed. Nelson testified that he stopped doing work on the

pool in late May 2015. In June, t he City of Houston inspected the pool and ordered i t shut because

it did not meet the C ity ’ s code requirements. The City issued an “ Aquatic Facility Inspection

Report, ” which required the pool to remain closed until Kliebert submitted plans for the pool

remodel

, the plans were approved

, and the pool passed inspection

. Kliebert ’ s proposed plans were

ultimately rejected by the City. The parties also disagreed about whose responsibility it was to get

the permits for the pool remodel. Kliebert asserted that Nelson told him that he did not need permits

for the project because he was only remodeling the pool

. Nelson

, however, claim ed that Kliebert

asked him not to acquire permits because Kliebert had an overall building permit that would cover

the pool remodel.

The parties also disputed what payments BKM made to Nelson. Kliebert testified that he

made all but the last two payments on the payment schedule

. At one point in his testimony, he

made that claim while referring to Plaintiff ’ s Exhibit 5 ( the $49,415 invoice ) and at another point

,

he repeated the claim while referring to Plaintiff ’ s Exhibit 6 (the $51,685 invoice)

. Kliebert

specifically recalled paying three of the invoices that Nelson provided, including the down

payment for the remodel, the gunite and light conduit, and tile and coping. Nelson acknowledged4 that he received three checks from Kliebert, but claimed that he did not have a record of the total

amount that he received from Kliebert. At trial, neither party sought to admit copies of any actual

checks showing payments.

In June 2015, Nelson filed a mechanic ’ s and materialman ’ s lien against the property

. By

this time, BKM was considering selling the property. BKM had to pay the amount of the lien

($8,183) to obtain a lien release to sell the property

.

B. Procedural Background

BKM sued Nelson alleging breach of contrac t, breach of warranty, and violations of the

Texas D eceptive T rade P ractices Act

. It sought to recover the amount that it paid for the pool

remodel that was never completed, money lost because of the incomplete pool remodel

, attorney ’ s

fees, court costs, and interest. At trial, Nelson argued that there was no evidence of an agreement

or contract between the parties

. His other position was that BKM paid Nelson nothing and

consequently was not entitled to recover anything. Following a bench trial, the trial court rendered

judgment for BKM and awarded the company $38,763.75 in actual damages, attorney ’ s fees of

$19,250, along with interest, court costs, and conditional appellate attorney ’ s fees

. Nelson filed a

request for findings of fact and conclusions of law and a notice of past due findings and

conclusions ; no findings or conclusions are in our record

. 2

On appeal, Nelson argues that the trial court ’ s judgment is not supported by factually

sufficient evidence. Specifically, Nelson argues that the trial court erred in deciding that Nelson

breached any contract with BKM because none of BKM ’ s complaints evidence a “ material

breach

. ” Nelson further argues that the trial court ’ s actual damages award is un supported by

2 Although Nelson points out that the trial court did not enter findings of fact or conclusions of law in response to his

request, he does not argue that the trial court erred by doing so.5 factually sufficient evidence because BKM did not prove the applicable measure of damages and

failed to prove that the damages sought were reasonable.



### II. S TANDARD OF 

### R EVIEW

W hen the trial court does not make express findings of fact

, we imply that the trial court

made all findings necessary to support its judgment, provided that: (1) the necessary findings are

raised by the pleadings and supported by the evidence; and (2) the decision can be sustained by

any reasonable theory consistent with the evidence and applicable law. See Worford v. Stamper

,

801 S.W.2d 108, 109 (Tex. 1990). The trial court ’s findings of fact, express or implied, are

reviewable for factual sufficiency by the same standards applied in reviewing the evidence

supporting a jury ’s answer. Catalina v. Blasdel , 881 S.W.2d 295, 297 (Tex. 1994). Our standard

of review is clear: “ When reviewing an assertion that the evidence is factually insufficient to

support a finding, a court of appeals sets aside the finding only if, after considering and weighing

all of the evidence in the record pertinent to that finding, it determines that the credible evidence

supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence,

that the answer should be set aside and a new trial ordered. ” Crosstex N. Texas Pipeline, L.P. v.

Gardiner , 505 S.W.3d 580, 615 (Tex. 2016). Stated otherwise, a reviewing court should only

reverse a verdict if it is so against the great weight and preponderance of the evidence as to be

manifestly unjust, or if the result shocks the conscience or clearly demonstrates bias. Pool v. Ford

Motor Co. , 715 S.W.2d 629, 635 (Tex. 1986). “ Under a factual

- sufficiency review, t he reviewing

court must not substitute its judgment for that of the fact finder

, who ‘ is the sole judge of the

credibility of witnesses and the weight to be given to their testimony. ’” Matter of Estate of Masters

,

No. 08-20-00156- CV, 2022 WL 2827022, at *3 (Tex.App.

-- El Paso July 20, 2022, no pet.),

quoting Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 761 (Tex. 2003).6 

### III. M ATERIAL 

### B REACH

A. Applicable Law

A breach of contract claim requires proof of four elements : (1) the existence of a valid

contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by

the defendant; and (4) damages sustained by the plaintiff from the breach. Houle v. Casillas , 594

S.W.3d 524, 556 (Tex.App.

-- El Paso 2019, no pet.). W hen one party to a contract commits a

material breach of the contract, the other party is discharged or excused from further performance.

Mustang Pipeline Co., Inc. v. Driver Pipeline Co., Inc. , 134 S.W.3d 195, 196 (Tex. 2004) (per

curiam ). By contrast, a nonmaterial breach entitle s the other party to sue for damages caused by

the breach but does not excuse future performance. Bartush-Schnitzius Foods Co. v. Cimco

Refrigeration, Inc. , 518 S.W.3d 432, 436 (Tex. 2017). So, the question in cases like ours is often

which party breached the contract first

, and whether the first breach was material

. Mustang

Pipeline , 134 S.W.2d at 200. To answer the materiality questions, a trier considers the se factors :

“ (a) the extent to which the injured party will be deprived of the benefit which he reasonably

expected; (b) the extent to which the injured party can be adequately compensated for the part of

that benefit of which he will be deprived; (c) the extent to which the party failing to perform or to

offer to perform will suffer forfeiture; (d) the likelihood that the party failing to perform or to offer

to perform will cure his failure, taking account of the circumstances including any reasonable

assurances; (e) 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. ” Id. at 199, citing Restatement (Second)

of Contracts § 241 (1981).7 B. Analysis

T he parties dispute wh o first commit ted a material breach. Nelson argues that there is

factually insufficient evidence that he materially breached the contract, which means BKM

breached first by failing to pay the full amount it owed under the contract

. If true, that excus ed

Nelson ’ s full performance of his obligations. BKM counters that Nelson was the first party to

materially breach the contract by failing to ensure that the pool remodel resulted in a functioning

pool and failing to obtain proper construction permits from the City. We con sider the evidence

against each Mustang Pipeline factor in turn.

1. BKM ’ s f ailure to r eceive the b enefit under the c ontract

Nelson argues that BKM suffered only two deprivations caused by the lack of Nelson ’ s

full performance: (1) a two

- week delay in completing the work and a five

- day delay in submitting

plans for a permit; and (2) an additional $3,825.52 in costs for additional parts and work. A lthough

Nelson claims that the work would have been delayed by five days due to his failure to submit

work plans to the City, the record suggests that Nelson never submitted any plans to the City.

K liebert was then required to submit his own plans. Nelson also told Kliebert that work permits

from the City were unnecessary

, which along with a failed inspection

, caused the City to shut down

construction and close the pool and render it useless either for the Montessori school or the

nightclub

.

And while Nelson claims that BKM was only deprived of $3,825.52 in additional costs for

unanticipated parts and labor, an obvious third benefit that BKM was deprived of was the lack of

a functioning

, usable pool. K liebert testified that the pool constantly overflowed because the pool

lack ed sufficient pumping

. H alf of the pool would then lac k sufficient water and become unusable.

Along with Nelson ’ s failure to get proper permits

, the deficient construction caused the City to8 shut the pool d own and forced BKM to purchase a $20,000 temporary pool for use by the

Montessori students.

In sum, the record contains evidence that Nelson ’ s substandard work caused the pool to

contain insufficient water for swimming and it fail ed inspection by the City

. T he pool was unusable

for its intended purpose. Because BKM failed to receive the benefit of the contract, thi s factor

favors Nelson ’ s material breach.

2. BKM ’ s c ompensation for the d eprived b enefit

Because Nelson did not adequately remodel the pool or acquire a work permit, the pool

was rendered unusable and was shut down by the City. This required BKM to hire other s to draft

permit plans for the C ity and complete the pool remodel

, and to purchase a temporary swimming

pool for the Montessori students. BKM eventually buil t another pool at a different location, which

cost around $100,000. Thus, this factor also weighs in BKM ’ s favor.

3. Nelson ’ s f orfeiture

Nelson argues that he had started or completed most of the work associated with the

contract. Although we agree that Nelson started a significant portion of the work

, as explained

above the evidence also shows that there were significant problems with the quality of the

construction.

4. Likelihood of Nelson ’ s c urative m easures

A series of text messages between Kliebert and Nelson showed that Kliebert tried to have

Nelson correct the deficiencies in the pool until at least June 8

, 2015

. At some point in June

, Nelson

stopped coming to the worksite or performing any construction

, and on July 15

, 2015

, he placed a

lien on BKM ’ s property

. Nelson then accepted BKM ’ s payment of the lien amount in exchange9 for releasing the lien. Thus, the record contains evidence that Nelson was unlikely to engage in

curative measures to remedy the issue with the pool.

5. Nelson ’ s g ood f aith and f air d ealing

The evidence shows that despite being paid thousands of dollars, Nelson failed to remodel

the pool in a manner that rendered it fit for its intended purpose, did not acquire proper permits for

the work, and eventually abandoned the project after repeated issues with construction arose.

Moreover, Nelson ’ s filing of a lien against BKM ’ s property when Kliebert stopped making

payments is evidence that Nelson did not intend to complete his obligations under the contract

despite his deficient performance

. This factor favors BKM.

6. Substantial p erformance

Weaved into his argument, Nelson also contends that he substantially performed under the

contract, thereby excusing his breach. The “ doctrine of substantial performance ” is an equitable

doctrine adopted to allow a contractor who has substantially completed a construction contract to

sue on the contract rather than being relegated to a cause of action for quantum meruit. Turner v.

Ewing

, 625 S.W.3d 510, 518 (Tex.App.

-- Houston [14th Dist.] 2020, pet. denied). “ The doctrine

of substantial performance recognizes that the contractor has not completed construction, and

therefore is in breach of the contract ” but “ the owner cannot use the contractor ’ s failure to complete

the work as an excuse for non

- payment. ” Id. at 518

. “ In a substantial performance claim, the

contractor must prove three elements to prevail: its substantial performance, the amount unpaid

under the contract, and ‘ the cost of remedying the defects due to his errors or omissions. ’” Id.

,

quoting Vance v. My Apartment Steak House of San Antonio, Inc.

, 677 S.W.2d 480, 48 3

(Tex. 1984)

.10 But for much the same reasons already noted, the record does not support Nelson ’ s claim

of substantial performance. Instead, the evidence showed that the pool was practically unusable

for its intended purpose due to Nelson ’ s failure to properly remodel the pool. Kliebert testified that

the pool frequently overflowed, the lighting and other components were incorrectly installed, and

the pumps had to be repeatedly shut down. These issues were confirmed in text messages between

Kliebert and Nelson. T he City shut down the pool indefinitely after Nelson failed to obtain permits

and the pool failed inspection. Because Nelson ’ s substandard performance significantly impaired

the purpose of the pool remodel

, the doctrine of substantial performance does not apply to excuse

Nelson ’ s breach. See James Constr. Grp., LLC v. Westlake Chem. Corp.

, 650 S.W.3d 392, 406

(Tex. 2022) (recognizing that a party will not be excused from contractual duties if the party ’ s

performance severely impairs the purpose of underlying contract and causes prejudice to the

nonbreaching party).

In sum, the bulk of the Mustang Pipeline factors support a finding that Nelson first

committed material breaches of the contract by failing to adequately construct the pool or acquire

proper permits. Thus, factually sufficient evidence supports the trial court ’ s implied finding that

Nelson was the first party to have materially breached the contract. Nelson ’ s Issue One is

overruled.



### IV. A CTUAL 

### D AMAGES

Nelson also argues that the trial court ’ s actual damages award is not supported by factually

sufficient evidence. 3 In particular, Nelson contends that BKM failed to offer evidence establishing

3 We review a factual sufficiency challenge to an award of damages under the same test for any other factual

sufficiency question. See DeNucci v. Matthews

, 463 S.W.3d 200, 214 (Tex.App.

-- Austin 2015, no pet.)

.11 the cost of correcting the deficient work on the pool, or the difference in value between the work

performed and the worth of the work if it had complied with the terms of the contract.

BKM could have pursued three measure s of damage for breach of contract: expectancy,

reliance, or restitution. Atrium Med. Ctr., LP v. Houston Red C LLC , 595 S.W.3d 188, 193

(Tex. 2020)

. “Expectancy damages award a contract plaintiff the benefit of its bargain; reliance

damages compensate the plaintiff for out-of- pocket expenses; and restitution damages restore to

the plaintiff a benefit that it had conferred on the defendant. ” Id. The trial court appears to have

based the damages on an out-of- pocket measure, which is “ the difference between the value the

buyer has paid and the value of what he has received

. ” Arthur Andersen & Co. v. Perry Equip.

Corp.

, 945 S.W.2d 812, 817 (Tex. 1997)

. T hat is, the trial court calculated the value of what BKM

received minus what it paid to Nelson.

BKM contends it received nothing of value as it never obtained a function al pool. And

absent approval from the City, the pool was closed and unusable. There is sufficient evidence that

BKM received nothing of value. The question we focus on is what BKM paid to Nelson. In closing

argument, BKM contended that its evidence demonstrated its payment of approximately $37,000

“ and change” to Nelson under the contract. This was supported by Kliebert ’s testimony that he

made all but the last two of the six payments on the payment schedule for Plaintiff ’s Exhibit 5 (the

estimate and payment schedule for $49,415). The first four payments under Plaintiff ’s Exhibit 5

total $37,061.25. But at a later point in Kliebert ’s testimony, he referred to Plaintiff ’s Exhibit 6 the

document that he paid from. The trial court awarded $38,763.75 which would exactly match the

first four payments from Plaintiff ’s Exhibit 6 (the $51,685 estimate and payment schedule)

. 4 At

4 The first four payments on the payment schedule were broken down this way : (1) twenty percent on the first day of

work in the amount of $10,337; (2) fifteen percent upon completion of gunite and lighting in the amount of $7,752;12 trial, Nelson acknowledged that Kliebert paid him three checks under the contract, but he did not

recall the total amount of the checks. Nelson also acknowledged that he received money from

BKM to release the lien for $8,183, but he still argued that the only evidence of BKM ’s payment

was for $9,883, which was shown as being “ Paid to Date” on an invoice.

So while the evidence conflicts, the trial court as the fact finder based its finding on the

latter testimony of Kliebert, which it had a right to do. We conclude that the evidence is factually

sufficient to support the $38,763.75 damage finding.

Nelson ’s Issue Two is overruled.



### V. C ONCLUSION

We affirm the judgment below.

JEFF ALLEY

, Justice

November 8, 2022

Before Rodriguez, C.J., Palafox, and Alley, JJ.

(3) twenty percent upon completion of cantilever and tile in the amount of $10,337; and (4) twenty percent upon

completion of plaster in the amount of $10,337.