Graybar Electric Co., Inc. v. Lem & Associates, L.L.C
Graybar Electric Co., Inc. v. Lem & Associates, L.L.C
Opinion
Reversed and Remanded and Majority Opinion and Concurring and Dissenting Opinion filed March 6, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-06-00714-CV
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GRAYBAR ELECTRIC CO., INC., Appellant
V.
LEM & ASSOCIATES, L.L.C., Appellee
On Appeal from the 165th District Court
Harris County, Texas
Trial Court Cause No. 04-14628
C O N C U R R I N G A N D D I S S E N T I N G O P I N I O N
I respectfully concur in part and dissent in part.
I agree with the Majority Opinion up to the disposition of Graybar=s 13th issue dealing with attorney=s fees. In my opinion, if the trial court erred, the error was harmless, and accordingly Graybar=s 13th issue should be overruled.
The portion of the Majority Opinion with which I concur holds that the Change Order is the contract, and that Lem is entitled to full recovery of all amounts due under the contract. Graybar is not entitled to any offsets. Graybar owes Lem 100% of the amounts due under the contract. Accordingly, Graybar is not a Aprevailing party@ in any sense of the term.[1] As a matter of law, Graybar is not entitled to recover attorney=s fees.
The trial court=s judgment does not award Graybar any attorney=s fees, and therefore the trial court=s judgment is correct in this regard. If, as the Majority Opinion states, the trial court arrived at this correct result in an incorrect manner, then the trial court=s error is clearly harmless. See Tex. R. App. P. 44.1(a).[2]
We should overrule Graybar=s 13th issue.
/s/ Margaret Garner Mirabal
Senior Justice
Judgment rendered and Majority Opinion and Concurring and Dissenting Opinion filed March 6, 2008.
Panel consists of Justices Anderson, Frost, and Mirabal.* (Anderson, J., concurring without opinion) (Frost, J., majority).
[1]With regard to the $100,000 judgment on Graybar=s counterclaim, the Majority Opinion correctly recognizes that the $100,000 Acredit@ contained in the Change Order cancels out the $100,000 award in the counterclaim. Graybar owes the full amount due under the Change Order, and is not entitled to any offsets or credits to lessen its contract obligations under the Change Order. The counterclaim judgment is effectively meaningless. Graybar is not a prevailing party.
[2] Rule 44.1 Reversible Error in Civil Cases.
(a) Standard for reversible error. No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of:
(1)probably caused the rendition of an improper judgment; or
(2)probably prevented the appellant from properly presenting the case to the court of appeals.
Tex. R. App. P. 44.1(a).
*Senior Justice Margaret Garner Mirabal sitting by assignment.
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