My Place Services LLC; Hatem M. Merhi; Fauneil Smith; Big Ben MIT; And Big Bend MIT v. Newman & Company MSO, LLC

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-23-00391-CV My Place Services LLC; Hatem M. Merhi; Fauneil Smith; Big Ben MIT; and Big Bend MIT, Appellants v. Newman & Company MSO, LLC, Appellee FROM THE 200TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-22-001032, THE HONORABLE AMY CLARK MEACHUM JUDGE PRESIDING MEMORANDUM OPINION Newman & Company MSO, LLC (“Newman”) sued My Place Services LLC (MPS); Hatem M. Merhi; Fauneil Smith; Big Ben MIT (Big Ben); and Big Bend MIT (Big Bend) asserting causes of action for breach of contract (against MPS, Big Ben, and Big Bend) and violations of the Deceptive Trade Practices-Consumer Protection Act (DTPA) (against all appellants). See Tex. Bus. & Com. Code §§ 17.41-.63. The dispute arose out of a construction services contract between Newman and MPS. After a bench trial, the court rendered judgment against MPS and Merhi, jointly and severally, on the breach of contract and DTPA claims and ordered them to pay Newman $150,000 in actual damages, ordered that the damage award be trebled, and ordered them to pay Newman $84,700 in attorneys’ fees. See id. § 17.50(b)(1) (providing for award of not more than three times amount of economic damages if trier of fact finds that conduct of defendant was committed knowingly); Tex. Civ. Prac. & Rem. Code § 38.001(b)(8) (providing for recovery of reasonable attorneys’ fees if claim is for breach of oral or written contract). The court also awarded pre- and post-judgment interest and conditional appellate attorneys’ fees. 1 We will affirm. BACKGROUND 2 Newman contacted MPS to discuss a construction buildout of commercial space at 3801 South Congress in Austin, Texas, that was to be a new location for its medical spa business. Merhi met with Newman to define the scope of the proposed project, conducted a walk-through of the premises, and familiarized himself with the conditions surrounding construction of the proposed project. MPS and Merhi represented to Newman that they had the skills and competence to complete the work on the proposed project in a good and workmanlike manner and in the time frame Newman requested. MPS and Merhi drafted a contract (the Contract) and presented it to Newman, who signed it in October 2021. Newman relied on MPS’s and Merhi’s representations when signing the Contract. The Contract provided for MPS to receive compensation for performing timely and professional work and included other obligations pertaining to the project specifications. The parties agreed that time was of the essence in performing the Contract because Newman would not be able to generate any revenue at the new location until the agreed upon buildout was completed. 1 The judgment recited that “[n]o damages are awarded against the remaining Defendants,” which are Fauneil Smith, Big Ben, and Big Bend. 2 The background facts provided are derived from the trial court’s unchallenged findings of fact. 2  Even though Newman timely made all payments required by the Contract, MPS’s work on the project was untimely, incomplete, and failed to meet the standards required by the Contract and as promised in MPS’s and Merhi’s representations to Newman. MPS and Merhi also demanded additional payments from Newman before their due dates and refused to perform or complete the agreed upon work if Newman did not pay their extra-contractual demands. MPS only partially performed the work required under the Contract and failed to deliver and complete the services identified in the Contract in the time and manner provided therein. The trial court found that MPS and Merhi made false promises without intending to perform them as well as false and deceptive representations regarding the time and manner in which they could complete the project. After MPS and Merhi failed to perform, Newman terminated the Contract and engaged a different company, Principal Renovations, to repair and replace the noncompliant work performed by MPS and to complete the project as set forth in the terms of the Contract. When Newman terminated the Contract, it had paid MPS and Merhi $125,000. Newman paid Principal Renovations $156,698.12 to complete the project. The delay in completing the project caused a disruption of the timing of the new location’s opening, which rendered Newman’s marketing ineffective and prevented Newman from building a customer base at the new location. Newman incurred $84,700.00 in attorneys’ fees pursuing its claims against MPS and Merhi. M