Trident Homes, Inc. and Ryan Strickland v. Ramesh Kainthla and Neetu Kainthla

ACCEPTED
15-25-00078-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
12/5/2025 1:45 PM

NO. 15-25-00078-CV CHRISTOPHER A. PRINE
CLERK
FILED IN
15th COURT OF APPEALS
IN THE FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS
AUSTIN, TEXAS 12/5/2025 1:45:01 PM
CHRISTOPHER A. PRINE
Clerk
TRIDENT HOMES, INC. AND RYAN STRICKLAND,
Appellants,
v.
RAMESH KAINTHLA AND NEETU KAINTHLA.
Appellees.

On Appeal from the 272nd District Court, Brazos County, Texas
No. 21-000379-CV-272

APPELLEES’ BRIEF

WATSON LAW FIRM EWELL, BROWN, BLANKE & KNIGHT LLP
J. Davis Watson Joseph R. Knight
State Bar No. 24004979 State Bar No. 11601275
dwatson@watsonlawyers.com jknight@ebbklaw.com
Sean Hester 111 Congress Ave., Suite 2800
State Bar No. 00784266 Austin, Texas 78701
shester@watsonlawyers.com (512) 770-4010
1450 Copperfield Pkwy, Suite 300
College Station, Texas 77845
(979) 703-4044

Attorneys for AppelleeS
Ramesh and Neetu Kainthla
IDENTITY OF PARTIES AND COUNSEL

In addition to the counsel identified in Appellant’s Brief, the following is

serving as lead appellate counsel for the Kainthlas:

Ewell, BROWN, BLANKE & KNIGHT LLP
Joseph R. Knight
State Bar No. 11601275
111 Congress Avenue, 28th Floor
Austin, Texas 78701
(512) 770-4010
jknight@ebbklaw.com

i
TABLE OF CONTENTS

Identity of Parties and Counsel .................................................................................. i
Table of Contents ...................................................................................................... ii

Table of Authorities ................................................................................................. iv

Statement on Oral Argument ................................................................................... vi

Statement of Facts ......................................................................................................1

Summary of the Argument.........................................................................................9
Argument..................................................................................................................10

I. Legally and factually sufficient evidence supports the jury’s
explicit finding that Ryan Strickland was a party to the oral
contract. ...............................................................................................11

II. Legally and factually sufficient evidence supports the jury’s
damages findings. ................................................................................16

A. Legally and factually sufficient evidence supports the
jury’s award of $13,538.05. ......................................................16

B. Legally and factually sufficient evidence supports the
jury’s award of $3,802.23. ........................................................20
C. Legally and factually sufficient evidence supports the
jury’s award of $1,300. .............................................................22

III. The record supports the jury’s rejection of Trident’s claims. .............24
A. Appellants’ argument is undermined by their
mischaracterization of the October 22, 2020 billing packet.
...................................................................................................24

B. Legally and factually sufficient evidence supports a
finding that Strickland and Trident committed a prior
material breach. .........................................................................25

ii
C. Appellants did not conclusively prove their claim, and the
jury’s failure to find in their favor is not against the great
weight and preponderance of the evidence. ..............................29

IV. The trial court did not abuse its discretion in awarding attorney’s
fees.......................................................................................................33
A. Appellants did not conclusively establish the affirmative
defense of excessive demand. ...................................................34

B. The amount of attorney’s fees awarded is not excessive
merely because the jury awarded lower damages than the
Kainthlas sought........................................................................38

C. Proof of the Kainthlas’ attorney’s fees was adequately
segregated..................................................................................43

Prayer .......................................................................................................................47
Certificate of Compliance ........................................................................................49

Certificate of Service ...............................................................................................49

iii
TABLE OF AUTHORITIES

Cases
Barker v. Eckman,
213 S.W.3d 306 (Tex. 2006) ................................................................................41
Burch v. Hancock,
56 S.W.3d 257 (Tex. App.—Tyler 2001, no pet.)................................................15
City of Fort Worth v. Zimlich,
29 S.W.3d 62 (Tex. 2000) ....................................................................................44
City of Hous. v. Williams,
353 S.W.3d 128 (Tex. 2011) ................................................................................19
City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005) ................................................................... 10, 11, 13
Drummond v. WWW.URBAN.INC.,
508 S.W.3d 657 (Tex. App.—Houston [1st Dist.] 2016, no pet.)................. 39, 40
Findlay v. Cave,
611 S.W.2d 57 (Tex. 1981) ........................................................................... 35, 38
Gordon v. Leasman,
365 S.W.3d 109 (Tex. App.—Houston [1st Dist.] 2011, no pet.)........................15
Green Int’l v. Solis,
951 S.W.2d 384 (Tex. 1997) ................................................................................33
Hernandez v. Gulf Grp. Lloyds,
875 S.W.2d 691 (Tex. 1994) ................................................................................26
Hernandez v. Lautensack,
201 S.W.3d 771 (Tex. App.—Fort Worth 2006, pet. denied)..............................35
Intercontinental Grp. P’ship v. KB Home Lone Star L.P.,
295 S.W.3d 650 (Tex. 2009) ................................................................................39
McMillin v. State Farm Lloyds,
180 S.W.3d 183 (Tex. App.—Austin 2005, pet. denied) .............................. 36, 37
Metroplex Mailing Servs. v. RR Donnelley & Sons Co.,
410 S.W.3d 889 (Tex. App.—Dallas 2013, no pet.) ............................................42

iv
Mustang Pipeline Co. v. Driver Pipeline Co.,
134 S.W.3d 195 (Tex. 2004) ................................................................................26
Panizo v. Young Men’s Christian Ass’n of Greater Hous. Area,
938 S.W.2d 163 (Tex. App.—Houston [1st Dist.] 1996, no pet.)........................37
Posey v. Broughton Farm Co.,
997 S.W.2d 829 (Tex. App.—Eastland 1999, pet. denied) ..................................15
Rohrmoos Venture v. UTSW DVA Healthcare LLP,
578 S.W.3d 469 (Tex. 2019) ............................................................. 34, 40, 41, 43
Safeshred, Inc. v. Martinez,
365 S.W.3d 655 (Tex. 2012) ................................................................................44
Staff Indus., Inc. v. Hallmark Contracting, Inc.,
846 S.W.2d 542 (Tex. App.—Corpus Christi 1993, no writ) ..............................38
State Farm Life Ins. Co. v. Beaston,
907 S.W.2d 430 (Tex. 1995) ................................................................................33
Tony Gullo Motors I, L.P. v. Chapa,
212 S.W.3d 299 (Tex. 2006) ................................................................... 44, 45, 46
Tuthill v. Sw. Pub. Serv. Co.,
614 S.W.2d 205 (Tex. App.—Amarillo 1981, writ ref’d n.r.e.) ..........................36
United Servs. Auto. Ass’n v. Hayes,
507 S.W.3d 263 (Tex. App.—Houston [1st Dist.] 2016, pet. dism’d) ................35
Von Hoffman v. City of Quincy,
71 U.S. 535 (1867) ...............................................................................................19
Statutes
Tex. Civ. Prac. & Rem. Code § 38.001(b)(8) ..........................................................34
Tex. Civ. Prac. & Rem. Code § 38.003 ...................................................................34
Tex. Prop Code § 162.001 .......................................................................................16
Tex. Prop. Code § 162.003(a) ..................................................................................18
Tex. Prop. Code § 162.031 ......................................................................................19

v
STATEMENT ON ORAL ARGUMENT

Appellants correctly suggest that oral argument is unnecessary. Their appeal

merely second-guesses the jury’s resolution of disputed fact issues and the trial

court’s discretionary award of attorney’s fees to the prevailing parties. This Court

likely does not need oral argument to assist in identifying the record evidence

supporting the judgment under familiar and well-established standards. But of

course, the Kainthlas will appear and argue if the Court prefers.

vi
STATEMENT OF FACTS

Ramesh and Neetu Kainthla are dissatisfied with Appellants’ statement of

facts, which is unhelpful to the Court because it exclusively presents Appellants’

version of disputed facts that the jury resolved against them. Along the way,

Appellants portray the Kainthlas as undeserving litigants merely because they saved

enough money over thirty years to build a nice house, which Appellants pejoratively

characterize as “sprawling” and “a mansion.”

Plaintiff Neetu Kainthla and Defendant Ryan Strickland worked together for

a long period of time, with Neetu often bringing him clients for whom he built

custom homes. Appellants’ Br. at 4; 8RR204. As a realtor, Neetu Kainthla has

access to form contracts generated by the Texas Real Estate Commission, and she

typically prepared written contracts for her clients, which Ryan Strickland would

sign on behalf of his companies. 8RR205; 9RR54. But this relationship was

different. The parties did not prepare a written contract.

The jury heard conflicting evidence regarding the terms of the oral contract

and whether Strickland was a party to it. Yet Appellants unqualifiedly assert, “both

parties agreed that the agreement was with Trident Homes.” Appellants’ Br. at 5.

In fact, both Ramesh and Neetu Kainthla swore that they contracted personally with

Ryan Strickland, not Trident. Ramesh testified: “my contract was with Ryan

Strickland.” 5RR131. He said the parties had no conversations whatsoever about

1
Trident Homes building the home. 5RR50. When Neetu was first asked whether

she is “claiming that Ryan Strickland breached the contract,” she likewise answered

“[y]es, because we hired Ryan Strickland.” 9RR53. She then gave the testimony

that Appellants quote as if it were clear and uncontradicted. And then she clarified

what she meant:

Q: So just want to be clear on this. You understand that
the construction contract that we’re here about was
a contract between you and Trident Homes, right?

A. It was our house contract you’re talking about,
right?
Q. Yes, ma’am.
A. Our house contract when we hired him was with
him. Whatever he told us, we did that. There was
no written contract. It was a verbal agreement with
him.
9RR55 (emphasis added). The jury credited the Kainthlas’ testimony and rejected

Strickland’s contention that he acted solely as an agent for his company. CR1226.

Appellants tell the Court that the construction project suffered “significant

delays driven by Plaintiffs’ failure to make timely selections,” as if this, too, were

undisputed. Appellants’ Br. at 5. Neetu Kainthla testified extensively on this

subject. She explained that when working with her clients in the past, Strickland

would tell them when it was time to make selections, and he would accompany them

to the relevant vendors. 8RR205-211. She expected to follow the same procedure

here. Id. There was no agreement on any particular timetable for selections, yet she

2
never delayed when Strickland said it was time to make one. 8RR210-11. Likewise,

Ramesh Kainthla testified that Strickland never discussed the timing of exterior

selections, that the Kainthlas did not cause any delays, and that “we made the

selections when we were told to make the selections.” 5RR53, 147. Although

Strickland said otherwise, he admitted that there is no documentary proof that he

ever notified the Kainthlas that their selections had to be made by a particular date.

8RR163-64. The jury resolved the conflicting testimony in the Kainthlas’ favor and

expressly rejected Appellants’ contention that the parties had agreed for selections

to be made by particular times during the project’s progression. CR1228 (Question

2(8)).

Appellants tell the Court that Trident funded the project “using the

construction account it maintained.” Appellants’ Br. at 5. In fact, the “construction

account” was a trust account established exclusively with the Kainthlas’ money.

7RR225, 227. The Kainthlas initially deposited $30,100 into this account. 5RR54;

7RR227. Despite holding this sum in trust, Appellants sent monthly billing packets

to the Kainthlas with every vendor invoice incurred that month. P.Ex.88 at

14RR130; 5RR58-67. Until the end of the parties’ relationship, the Kainthlas timely

paid every billing packet in full, adding 10% as the builders’ fee. Id. Accordingly,

the full amount of $30,100 should have remained in the construction account when

Strickland terminated the contract in December 2020. But there was only

3
$13,538.05, and Appellants never accounted for the difference. 7RR181. Worse,

they appropriated the remaining $13,538.05 for their own use and benefit before the

litigation commenced. 7RR181-82; 8RR150-51. The jury found that this money

belonged to the Kainthlas and that Appellants breached the parties’ contract and

knowingly violated the DTPA by taking it. CR1229-30; 1239-40; 1243-55; 1249-

51.

Appellants state that in October 2020, they submitted a billing packet totaling

$95,021.38 but “instead of paying the full amount, the Kainthlas remitted only

$58,558.46.” Appellants’ Br. at 6. These assertions omit a critical, undisputed fact.

Ramesh Kainthla complained that the original October 22, 2020 billing packet

lacked the supporting documentation that the parties had agreed would be submitted

with each request for payment. 6RR8-13. In response, Appellants withdrew the

original October 22, 2020 billing packet and replaced it with a revised packet totaling

$58,655.46. Id.; see also 7RR73-74 (Trident’s bookkeeper testifying that he made

a “correction” to the October 22 invoice that reduced the amount). Ramesh Kainthla

paid the revised amount in full, along with an additional $5,865.55 builder fee.

6RR12. Appellants’ own project spreadsheet reflects a charge of only $58,655.46

on October 22 and confirms that the charge was timely paid in full. P.Ex.88 at

14RR137.

4
The corrected and paid October 22, 2020 invoice included charges from a

vendor called BMC in the amounts of $2,863.63, 768.58, and 83.83. P.Ex.88 at

14RR137. However, by letter dated November 12, 2020, BMC notified the

Kainthlas that its invoices for $2,863.63, 768.58, and 83.83 had not been paid.

P.Ex.100 at 14RR177. BMC threatened to place a lien on the Kainthlas’ property.

Id.

Ramesh Kainthla is a man who pays his bills. 5RR68-69. He told the jury

that receiving a certified letter asserting an overdue debt and threatening a lien was

hard on him. Id. Kainthla testified he confronted Strickland and demanded that

Appellants satisfy BMC’s claim with the money Kainthla had already paid them for

these invoices. 5RR69. But Strickland flatly refused. Id.

Kainthla testified that it turned out BMC was not alone. There were other

subcontractors that Appellants failed to pay even though they had collected money

from Kainthla for the subcontractors’ outstanding invoices. 5RR70-72. Kainthla

said that he asked Strickland to sit down with him in person and reconcile the

accounting between them so both parties could understand where all the money

Kainthla had paid Strickland had gone. 5RR72. But Strickland refused to meet.

5RR73.

By this point, the Kainthlas had paid Appellants more than $1.8 million to

cover vendor invoices and more than $180,000 in builder fees. P.Ex.88 at 14RR137.

5
Kainthla was reluctant to make further payments to Appellants until he and

Strickland reconciled their accounting of funds because Kainthla was worried that if

he paid Strickland, the funds would not be used to pay vendors on his project.

5RR73. Strickland responded that he was “tired of dealing” with the Kainthlas and

would take them to court. 5RR74. Strickland announced that he would cut a check

to himself from the funds that the Kainthlas had initially deposited with him and

would sue the Kainthlas and anyone else who came to him looking for money.

5RR74; P.Ex.44 at 14RR30. Strickland threatened: “You have no idea how much

this is about to cost you.” Id.

Ramesh Kainthla then reviewed the various subcontractors’ invoices and paid

every vendor that Strickland had failed to pay. 5RR75-76. This included paying

BMC the amounts Kainthla had previously paid Strickland for BMC’s invoices—in

other words, Kainthla paid these invoices twice. 5RR76.

Once the Kainthlas brought all of Appellants’ subcontractors current on their

billings, they started looking for ways to finish the work in Appellants’ absence.

5RR76-78. One consequence of Appellants’ mismanagement of the project was that

several subcontractors quit mid job and refused to work for him. Id. For example,

Appellants went through four electrical contractors without managing to complete

the electrical work. Id. Ramesh Kainthla testified that persuading one of the original

electrical vendors to come back and complete the work directly for the Kainthlas

6
resulted in significant additional costs. 5RR78. The Kainthlas sought to recover

these extra expenses on their breach-of-contract claim, but the jury did not award

damages on this element of the claim. CR1231. The Kainthlas spent approximately

9 more months managing various trades to complete their home and moved into it

some four and a half years after Appellants started the project. 5RR78-79.

Meanwhile, in February 2021, the Kainthlas filed this lawsuit. CR7. Among

other things, discovery revealed that Appellants repeatedly withdrew funds from the

Kainthlas’ construction trust account and used them for unrelated projects

(sometimes later reimbursing the Kainthlas’ account and claiming the transaction

was an error). In April 2019, Appellants withdrew $23,048.35 from the Kainthlas’

construction trust account without their knowledge or permission and used it to

purchase an unrelated piece of property for a different Trident construction project.

5RR118-19; P.Ex.89 at 14RR142. Although this deduction was later repaid (also

without the Kainthlas’ knowledge), Ramesh Kainthla identified several deductions

from his trust account for items that were not billed to him, did not relate to his

project, and did not get repaid. 5RR121-24.

After hearing more than a week’s worth of evidence, the jury returned a

verdict finding, among other things, that:

• Both Trident Homes and Ryan Strickland were parties to the oral
contract (CR1226);

7
• The contract included Appellants’ promise to use funds in the
Kainthlas’ construction trust account only for their project (CR1227);

• The contract included Appellants’ promise to timely pay all
subcontractors and vendors (CR1228);

• Appellants failed to comply with the contract, causing over $28,000 in
damages (CR1230-31);

• The Kainthlas did not fail to comply with the contract – “by excusal”
(CR1232);

• Strickland intentionally, knowingly, or with intent to defraud,
misapplied the Kainthlas’ trust funds (CR1235-36);

• Appellants are holding money that belongs to the Kainthlas (CR1239-
40);

• Appellants engaged in an unconscionable action or course of action that
caused damages to the Kainthlas CR13243-44; 1249-50);

• They engaged in such conduct knowingly or intentionally (CR1245;
1251); and

• The Kainthlas were not unjustly enriched by Appellants and did not
commit fraud against them (CR1256; 1258).
The Kainthlas elected to recover on their contract claim. By agreement, the

parties tried the issue of attorney’s fees to the court. After an evidentiary hearing on

attorney’s fees (12RR), the trial court rendered judgment that the Kainthlas recover

$28,640.28 in damages, plus interest, and $233,769.83 in reasonable and necessary

attorney’s fees. CR1217-21. The judgment also awards appellate attorney’s fees,

contingent on success in this Court, which Appellants do not challenge. CR1220.

8
SUMMARY OF THE ARGUMENT

This lawsuit arises out of an oral contract. At trial, the parties disputed the

terms of this contract, including the identities of the contracting parties. Each side

presented evidence in support of its positions on these disputed terms. The trial court

submitted the disputed facts to the jury in a 44-page charge. And the jury sided with

the Kainthlas on the terms that form the basis of the judgment.

To attack the verdict, Strickland and Trident do exactly what this Court cannot

do. They cherry-pick the evidence on their side and mischaracterize or ignore

evidence supporting the verdict. When the Court considers the evidence supporting

the verdict, as it must in resolving Strickland’s and Trident’s no-evidence and great-

weight points, it becomes clear that the jury simply found the Kainthlas’ version of

the facts more credible.

The trial court did not abuse its discretion by awarding attorney’s fees

calculated at a modest rate of $350 per hour and discounted significantly in

Appellants’ favor. Neither the facts nor Texas law supports Appellants’ contention

that the award is excessive merely because the Kainthlas demanded and sought to

recover higher damages on their contract claim than the jury ultimately awarded.

The Kainthlas adequately segregated the fees they incurred. Because

Appellants do not claim charge error, this Court reviews the evidence supporting the

attorney’s-fee award according to the charge as given. The jury found that the

9
misconduct on which the Kainthlas’ tort claims were based also breached specific

terms of the parties’ oral contract. Accordingly, legal fees spent trying to prove this

misconduct—which may have been unrecoverable in another case—were

recoverable here because those fees were for legal work that also established the

Kainthlas’ claim for breach of contract.

The breach-of-contract question also instructed the jury to consider whether

Appellants’ behavior “comports with standards of good faith and fair dealing.”

Legal fees spent establishing Appellants’ bad faith—which also may have been

unrecoverable in other cases—were recoverable on the breach-of-contract claim

here. The trial court therefore had adequate discretion to find, in light of the evidence

and specific charge in this case, that the discounts given by the Kainthlas adequately

segregated any small amount of fees that may have been incurred solely in

connection with causes of action for which fees were not recoverable.

ARGUMENT

While Appellants give a passing nod to the applicable standards of review

(Appellants’ Br. at 14), they fail to acknowledge just how steep a hill they must

climb in this particular case. “If the parties to an oral contract testify to conflicting

terms, a reviewing court must presume the terms were those asserted by the winner.”

City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). The Court should reject

Appellants’ no-evidence and insufficient-evidence points.

10
I. Legally and factually sufficient evidence supports the jury’s explicit
finding that Ryan Strickland was a party to the oral contract.

Appellants lead with a little exaggeration. They tell the Court three times—

in their statement regarding oral argument, summary of the argument, and

argument—that Neetu Kainthla conclusively admitted Strickland was not a party to

the oral construction contract. Appellants’ Br. at 2, 12, 16. There are at least three

problems with this assertion.

First, a snippet of Neetu Kainthla’s testimony would not be conclusive even

if Appellants accurately represented it. Plaintiff Ramesh Kainthla testified

unequivocally that he believed and understood from the parties’ discussions that

Ryan Strickland was going to build the house for him. 5RR50; see also 5RR131

(“my contract was with Ryan Strickland”). He testified that the parties had no

conversations whatsoever about Trident Homes or S&I Residential building the

home. 5RR50. The jury was free to credit this testimony, even if other evidence

contradicted it. See City of Keller, 168 S.W.3d at 819 (“Jurors are the sole judges of

the credibility of the witnesses and the weight to give their testimony. They may

choose to believe one witness and disbelieve another. Reviewing courts cannot

impose their own opinions to the contrary.”).

Second, Neetu Kainthla did not make the clear concession that Appellants

claim. Shortly before the testimony quoted in their brief, Neetu testified that she had

a contract with Ryan Strickland:

11
Q. Are you also claiming that Ryan Strickland
breached the contract?

A. Yes, because we hired Ryan Strickland.

9RR53. Neetu Kainthla then explained that when she dealt with Strickland’s

companies as a real estate agent, there was always a written contract between the

company and the buyer. 9RR54. In the course of this examination, Appellants’

counsel asked Neetu if she was “seriously” claiming that she had a “construction

contract” with Ryan to build this house. Id. In context, her “no” answer indicated

that, unlike the clients she represented in transactions with Strickland’s businesses,

she did not have a written contract with him to build her own home. In fact, when

Appellants’ counsel attempted to clear up the distinction, Mrs. Kainthla explained

that she (a non-lawyer) was distinguishing between a contract and a verbal

agreement:

Q: So just want to be clear on this. You understand that
the construction contract that we’re here about was
a contract between you and Trident Homes, right?
A. It was our house contract you’re talking about,
right?

Q. Yes, ma’am.

A. Our house contract when we hired him was with
him. Whatever he told us, we did that. There was
no written contract. It was a verbal agreement with
him.

12
Q. But he was acting on behalf of Trident Homes, and
you did not have a contract with him individually to
build the house, correct?
A. We didn’t have contract with -- we had a verbal
agreement, however you want to put it, but we had
a contract with him and whatever his companies
were.
9RR55 (emphasis added). At best, Neetu Kainthla’s “concession” is ambiguous,

not dispositive as Appellants contend. Appellants err by insisting the Court must

credit the excerpt they quote from page 54 of Neetu Kainthla’s testimony while

disregarding what she said on pages 53 and 55. See City of Keller, 168 S.W.3d at

820 (“whenever reasonable jurors could decide what testimony to discard, a

reviewing court must assume they did so in favor of their verdict, and disregard it in

the course of legal sufficiency review”).

Appellants’ citation to volume 7 of the Reporter’s Record is even worse. After

telling the Court that Neetu Kainthla never considered using another builder,

Appellants say: “As she put it, ‘There was no doubt that Trident Homes would build

this house.’” Appellants’ Br. at 19 (citing 7RR201, emphasis added). Contrary to

Appellants’ representation, that is by no means “as she put it.” The quoted testimony

came from Ryan Strickland, not from Neetu Kainthla. 7RR201. The jury was free

to disregard Strickland’s self-serving assertion. It was well within the jury’s

discretion to accept the testimony of both Kainthlas that they negotiated and agreed

to an oral contract with Strickland in an individual capacity.

13
Third, there is ample additional evidence corroborating the Kainthlas’

testimony that they had an oral deal with Strickland personally. Strickland entered

into this transaction with a level of informality that his companies would never

implement, presenting a seven-figure construction bid sheet that did not even

mention his companies’ names. P.Ex.48 at 14RR31. Strickland never presented the

Kainthlas with one of the standard written contracts that his businesses use, which

would have called for a builder’s fee of 20-22%. 8RR161. Strickland’s willingness

to build the Kainthlas’ home for half his regular fee based on nothing more than a

handshake shows Strickland’s intent to undertake this project in an individual

capacity based exclusively on his long-term personal friendship with Neetu

Kainthla.

Appellants argue that Neetu Kainthla’s familiarity with the contractual

practices of Strickland’s businesses in other transactions establishes that he was not

individually a party to the contract here. But the evidence supports the opposite

inference. In more than 40 prior transactions when one of Strickland’s business

entities was the contracting party, a written, fixed price contract was used. 8RR204-

05. Had this transaction been the same, the parties could have executed a standard

Trident Homes written contract. The fact that no such written contract exists in this

unique situation supports the inference that this was not a typical contract with

14
Trident Homes. Rather it was, as the Kainthlas testified, an oral contract with

Strickland himself based on personal trust.

Strickland’s reliance on post-contract-formation activities cannot help him.

Appellants’ Br. at 19-20. Instructing the Kainthlas to write checks to Trident Homes

and purchasing an insurance policy in the name of Trident Homes (which was not

specific to this project) are irrelevant to the parties’ intent at the time of contract

formation. In Gordon v. Leasman, 365 S.W.3d 109, 115 (Tex. App.—Houston [1st

Dist.] 2011, no pet.), for example, the court upheld a finding of personal liability

despite proof that invoices were issued and checks were paid to the individual’s

business entity because the invoices and checks “do not relate to the time [the

individuals] entered into the contract.” See also Burch v. Hancock, 56 S.W.3d 257,

262 (Tex. App.—Tyler 2001, no pet.) (evidence was legally and factually sufficient

to support finding that agent was individually liable even though plaintiff received

check from the company); Posey v. Broughton Farm Co., 997 S.W.2d 829, 832 (Tex.

App.—Eastland 1999, pet. denied) (agent was personally liable on contract even

though plaintiff subsequently received drafts with principal’s name on them).

These cases are factually different from this one in the sense that the

individual defendants did not disclose the existence of their principals during

contract formation, whereas the Kainthlas already knew that Trident Homes existed.

But there is no analytical difference because Strickland never disclosed that he was

15
entering into an oral contract solely on behalf of his business entity, and there is

ample evidence that the Kainthlas never agreed to such an arrangement. The Court

should overrule Appellants’ first issue.

II. Legally and factually sufficient evidence supports the jury’s damages
findings.

Appellants’ analysis of the jury’s findings regarding the Kainthlas’ damages

suffers a similar analytical flaw. Appellants urge the Court to credit their version of

the facts over the Kainthlas’ version without demonstrating why a rational jury could

not have believed the Kainthlas.

A. Legally and factually sufficient evidence supports the jury’s award
of $13,538.05.
Strickland testified that he maintained two bank accounts that are relevant to

this case. First, there was a corporate operating account for Trident Homes, which

held the company’s own funds, from which Appellants could “spend our money on

whatever we needed.” 7RR225. The other account was created specifically for this

project and called “the Kanati Cove account.” Id. The money in this account did

not belong to Strickland or his companies; rather, it “pays the bills for the house.”

Id. The Kainthlas initially deposited $30,100 into the Kanati Cove account.

7RR225, 227. By statute, Appellants held these funds in trust, and by Strickland’s

own admission, this money was to be used not on “whatever we needed,” but solely

to “pay the bills for the house.” Id; Tex. Prop Code § 162.001.

16
Ramesh Kainthla identified the checks he wrote to fund the initial deposit into

the Kanati Cove account and testified that that the account was “to be used for paying

the bills incurred for 3545 Kanati Cove.” 5RR55. Because the Kainthlas also paid

for every construction expense incurred each month, the $30,100 deposit was

intended to serve as a cushion in case expenses for the home needed to be paid before

Strickland presented invoices and a draw request to the Kainthlas. 5RR166; see also

7RR227 (Strickland characterizing the funds as a “buffer”). Neetu Kainthla

corroborated this testimony, confirming that the money in the trust fund was there

only to allow Strickland to pay contractors if the Kainthlas were not available to

provide funds for them on time. 8RR198-200. This testimony supports—and

Appellants do not challenge—the jury’s finding that Strickland and Trident agreed

that they “would open a construction trust account and funds from that account

would only be used to pay for the Kainthlas’ construction project.” CR1227

(emphasis added).

When Strickland terminated the parties’ oral contract in December 2020, there

was a balance of $13,538.05 in the Kanati Cove account. Rather than use this

balance to pay contractors, as the parties agreed and the law requires, Appellants

used it to pay themselves. 7RR181-82; 8RR150-51. Appellants cannot muster an

argument that the trust funds in this account somehow belonged to them. The best

they can argue is that the funds were not earmarked for “any specific unpaid vendor”

17
and that the Kainthlas failed to “offer testimony” that the use of these funds violated

an “express term” of the parties’ oral contract. Appellants’ Br. at 21-22.

These carefully chosen words come nowhere close to requiring reversal. It

was not the Kainthlas’ burden to introduce “evidence that the funds were earmarked

for any specific unpaid vendor, invoice, or project expense.” Appellants’ Br. at 22

(emphasis added). There were copious outstanding vendor invoices pending at the

time Strickland terminated the contract. P.Ex.88 at 14RR137; 5RR75-76. These

vendors were statutory beneficiaries of the trust funds in the Kanati Cove account.

Tex. Prop. Code § 162.003(a). So were the Kainthlas. Tex. Prop. Code §

162.003(b). The Kainthlas’ expert testified without objection or contradiction that

it was improper for Appellants to appropriate these trust funds:

Q. Did you see on this exhibit where Ryan Strickland
took the money left in this trust account and put it
into Trident operating account?
A. I do.
Q. What are your thoughts on that?

A. That was not a proper thing to do.

Q. Okay. Why not?

A. The funds he did not earn, and all these funds in this
account are supposed to go towards paying invoices
for material and labor performed on this house. And
this was probably part of that 30,000 cushion that
was put in there. It’s just not a proper thing to do, to
take it out.

18
6RR170. And it was not necessary for the Texas Construction Trust Fund Act to be

an “express term” of the parties’ contract. “[I]t is ‘settled that the laws which subsist

at the time and place of the making of a contract . . . form a part of it, as if they were

expressly referred to or incorporated in its terms.’” City of Hous. v. Williams, 353

S.W.3d 128, 141 (Tex. 2011) (quoting Von Hoffman v. City of Quincy, 71 U.S. 535,

550 (1867)).

When Appellants appropriated money from this account (7RR182; 8RR150-

51), they broke the law and breached the contract. Tex. Prop. Code § 162.031;

CR1227, 1228. In fact, Appellants do not even challenge the jury’s findings that (1)

Appellants held money that belongs to the Kainthlas; and (2) Appellants engaged in

an “unconscionable action or course of action” by misusing the balance of the Kanati

Cove account. CR1239-40; 1243-44.

Appellants’ attempt to justify their illegal conduct in this Court fall short.

They claim “Strickland testified that these funds were applied to actual overhead

costs incurred in connection with the project.” Appellants’ Br. at 22 (citing 7RR230-

32). But the cited testimony does not even mention the Kanati Cove account, much

less trace funds from it to expenses incurred in connection with the project.

Likewise, Appellants tell the Court that certain fixed overhead expenses were

“funded in part from the construction account.” Appellants’ Br. at 22 (citing

7RR100-03). But, again, the cited testimony does not even mention the Kanati Cove

19
account, much less conclusively establish a legitimate use of those funds in

connection with the alleged overhead. See, e.g., 7RR101 (discussing “insurance that

wasn’t specifically related to the Kainthlas’ home”).

More importantly, ample testimony and the jury’s unchallenged finding

(CR1227) establish that the parties agreed the Kanati Cove account was to be used

only to pay for work on the home. Yet Appellants appropriated the balance of the

Kanati Cove account for their own purposes. Because no one disputes that the

balance of the account was $13,538.05 when the parties parted ways, the evidence

is thus legally and factually sufficient to support the jury’s award of this amount as

damages for Strickland’s and Trident’s breach of contract.

B. Legally and factually sufficient evidence supports the jury’s award
of $3,802.23.
The Kainthlas paid twice for $3,802.23 in charges submitted by two

contractors (BMC and Madole Equipment Rental). Appellants argue that because

Strickland never paid BMC or Madole in the first place, the vendors never “received

duplicate reimbursement.” Appellants’ Br. at 23. But the concern is not whether

the vendors received two payments. The concern is that the Kainthlas had to pay

these vendor invoices twice, because Appellants misappropriated the first payments.

According to Appellants’ own records, they submitted an invoice to the

Kainthlas on October 22, 2020, in the total amount of $58,655.46. P.Ex.88 at

14RR137. Among the vendor charges comprising this amount were three invoices

20
from BMC totaling $3,721.04. Id. The Kainthlas paid the October 22 invoice in full

on November 2, 2020, and at the same time they paid Appellants a builder fee of

$5,865.55. Id. This payment was deposited into the Kanati Cove trust account on

November 2, 2020. P.Ex.90-45 at 14RR159-60. This evidence indisputably shows

that the Kainthlas paid Appellants for the three BMC charges totaling $3,721.04.

Nevertheless, by letter dated November 12, 2020, BMC threatened to place a

lien on the Kainthlas’ property because BMC had not received payment on its

invoices for $3,721.04. P.Ex.100 at 14RR177. When Ramesh Kainthla asked

Strickland to pay BMC, Strickland refused. P.Ex.1 at 14RR10; 5RR69. To prevent

BMC from placing the lien on his property as threatened, Ramesh Kainthla then paid

BMC directly by electronic funds transfer. 5RR76. Accordingly, he paid the BMC

invoices twice—once to Appellants and once directly to BMC. Id.

The October 22, 2020 invoice that Kainthla paid to Appellants also included

a charge from Madole Equipment Rental for $81.19. P.Ex.88 at 14RR136. As with

the BMC payments, Appellants collected money from Kainthla to pay this invoice

but failed to pay Madole. After paying Appellants for Madole’s charge, Kainthla

wound up paying it a second time to Madole by credit card. 5RR76. Adding the

amount of this Madole charge to the amounts of BMC’s bills, Kainthla paid a total

of $3,802.23 to Appellants for the October 22, 2020 invoice that Kainthla wound up

paying a second time directly to the vendors.

21
Kainthla’s testimony that he paid Appellants for the BMC and Madole charges

and then had to pay these amounts a second time directly to the vendors fully

supports the jury’s award of this sum to the Kainthlas. It also negates Appellants’

contention that this double-payment amount was “introduced” by counsel during

closing argument. Appellant’s Br. at 23. Appellants offer no reason why the jury

could not have credited this evidence, and this Court should reject their evidentiary

challenges to the award.

C. Legally and factually sufficient evidence supports the jury’s award
of $1,300.
Contrary to Appellants’ argument, the jury heard conflicting evidence

regarding minor damage to the Kainthlas’ tile roof. Ramesh Kainthla testified

unequivocally that certain roof tiles were cracked and had grass growing in them

while Appellants were still on the job. 5RR105. He swore that Strickland told him

not to worry about it because Strickland would have the roof inspected before the

Kainthlas moved into the house, and any damage would be repaired at that time. Id.

Kainthla further testified that when Appellants left the job, those tiles had not been

repaired. 5RR105-06. He then had to pay the roofer $1,300 to repair those tiles

because, by that time, the roof was out of warranty. 5RR106.

Appellants tell this Court that “Plaintiff Ramesh Kainthla admitted that Quick

Roofing was contacted to address new cracking in the tiles.” Appellants’ Br. at 24

(emphasis added). This is false. In support of their representation, Appellants cite

22
8RR33-34, which is Strickland’s testimony, not Kainthla’s. Nothing on these two

pages of Strickland’s testimony could be twisted into an admission by Ramesh

Kainthla that he paid $1,300 for repairs to “new cracking in the tiles” after

Appellants left the job. 8RR33-34.

Strickland disputed Kainthla’s version of the facts, testifying that that he saw

only two broken tiles while he was still on the job, and he had the roofer repair those

tiles before he paid the roofer’s final installation bill. 7RR169. Strickland said that

he did not know of any more broken tiles when he left the job. 7RR170; 8RR30.

He speculated that the tiles that were later repaired for $1,300 were probably broken

by someone walking on the roof after he left the job.

However, the Kainthlas’ expert testified that, based on the location of the

damaged tiles, there would not have been any reason for a person to have walked on

them after Appellants left the job. 6RR128. Based on that fact, he assumed that the

tiles were cracked during their initial installation and opined without objection that

the builder would be responsible for the repairs. Id.; see also 6RR200-01 (admitting

he does not know when the tiles were cracked but reiterating that “I could not see

any reason anyone would have been working in an area that those tiles were

broken”).

This record required the jury to make a credibility decision regarding when

the tiles cracked and who was responsible for the cost of repairing them. Yet again,

23
Appellants offer the Court no reason why a rational jury could not have believed

Ramesh Kainthla and his expert and no reason why a jury was compelled to believe

Strickland instead. The Court should reject this third and final evidentiary challenge

to the jury’s damages findings.

III. The record supports the jury’s rejection of Trident’s claims.
There are multiple independent reasons why the Court should reject Trident

Homes’ contention that it conclusively proved its claims for breach of contract

against the Kainthlas.

Appellants do not complain about the jury charge, which combined the

question on Trident’s claim with the instruction: “A failure to comply by the

Kainthlas is excused if the Builder previously failed to comply with a material

obligation of the same agreement.” CR1232. Asked whether the Kainthlas breached

the contract, the jury answered “No – By Excusal.” Id. Accordingly, as they

acknowledge (Br. at 26), to prevail here, Appellants must demonstrate that they

conclusively proved both a material breach by the Kainthlas and that Appellants did

not commit a prior material breach.

A. Appellants’ argument is undermined by their mischaracterization
of the October 22, 2020 billing packet.

Appellants’ entire argument regarding Trident’s counterclaim is premised on

their contention that Ramesh Kainthla underpaid the October 22, 2020 billing

packet. Appellants’ Br. at 6, 13, 27, 28, 30. But the record shows otherwise.

24
Appellants fail to tell the Court that the original October 22, 2020 billing packet in

a total amount of $95,021.38 lacked the supporting documentation that the parties

had agreed would be submitted with each request for payment. 6RR8-12. When

Ramesh Kainthla pointed this out, Appellants withdrew the original October 22,

2020 billing packet and replaced it with a revised packet totaling $58,655.46. Id.;

see also 7RR73-74 (Trident’s bookkeeper testifying that he made a “correction” to

the October 22 invoice that reduced the amount). Kainthla paid the revised amount

in full, along with an additional $5,865.55 builder fee. 6RR12. This is why

Appellants’ own project spreadsheet reflects a charge of only $58,655.46 on October

22 and confirms that the charge was paid in full on November 2. P.Ex.88 at

14RR137.

Appellants can hardly establish as a matter of law that the Kainthlas were

contractually obligated to pay an invoice that Appellants withdrew and replaced.

They can hardly prevail as a matter of law on a claim that the Kainthlas underpaid

the October 22 invoice when their own project records show the invoice was paid in

full within 13 days. This Court should summarily overrule Appellants’ third issue

because it is built entirely on a false premise.

B. Legally and factually sufficient evidence supports a finding that
Strickland and Trident committed a prior material breach.

Appellants submitted the next billing packet on November 20, 2020 with

$85,245.68 in new charges and an aggregate total of $111,709. 7RR79; PX88 at

25
14RR137. By that time, the parties were in dispute, and the Kainthlas did not pay

the November 20 invoice to Strickland or Trident. Id. All of the amounts allegedly

owed to Appellants as discussed in section III of their brief were charged on the

November 20 invoice or later. Even if the jury believed the Kainthlas breached the

contract, the jury could certainly have concluded that the breach occurred sometime

after the Kainthlas received the November 20, 2020 billing packet.

It is a fundamental principle of 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.” Mustang Pipeline Co. v. Driver Pipeline Co., 134

S.W.3d 195, 196 (Tex. 2004) (citing Hernandez v. Gulf Grp. Lloyds, 875 S.W.2d

691, 692 (Tex. 1994)). The jury found in response to questions 1 and 3 that Trident

was a party to the oral construction contract and that Trident (along with Strickland)

breached the contract. CR1226, 1230. The jury also found that Trident (along with

Strickland) agreed it “would open a construction trust account and funds from that

account would only be used to pay for the Kainthla’s construction project,” and

“would timely pay the sub-contractors and vendors for the work they performed on

the home.” CR1227, 1228. The jury also found that Appellants contracted to

provide a $10,000 credit toward a refrigerator for the Kainthlas’ home. CR1229.

Appellants do not contest these findings. The record contains ample evidence that

26
Trident and Strickland breached these contractual terms before the Kainthlas

allegedly breached the contract.

It is undisputed that in April 2019 Appellants withdrew $23,048.35 from the

Kainthlas’ construction trust account without their permission and used it to

purchase an unrelated piece of property for a different Trident construction project.

5RR118-19; P.Ex.89 at 14RR142. Strickland admitted he withdrew these funds

from the Kainthlas’ trust account, and he characterized the withdrawal as an error.

7RR133. Strickland agreed that he effectively gave Trident an interest-free loan

from the Kainthlas without their knowledge. 7RR136. Although Trident repaid

these funds to the Kainthlas’ account, Appellants did not come clean when they

allegedly discovered their error. The Kainthlas did not learn of this misappropriation

of their funds until they subpoenaed Appellants’ bank records in connection with

this case. 5RR118-19.

Appellants’ records also showed other instances of using the trust funds in the

Kainthlas’ account for purposes unrelated to their project. Ramesh Kainthla

identified the following deductions from his trust account for items that were not

billed to him and did not relate to his project:

$1,051.16 to MidSouth Bank (P.Ex.89 at 14RR142);

$618.70 to Daniel Stagg (Id.);

27
$9,325.60 for a project at 4202 Wallaceshire (the same
address for which the $22,000 “error” had previously been
made) (Id.); and
$2,886 to College Station Utility for a permit on a different
Trident project (P.Ex.88 at 14RR131).
5RR121-24.

It was well within the jury’s province to find that Appellants were misusing

the Kainthlas’ trust fund over the course of many years—withdrawing funds when

they needed them to cover expenses at unrelated projects. The evidence amply

supports a finding that Strickland and Trident breached their contractual duty to use

the funds in the Kainthlas’ construction trust account only “to pay for the Kainthla’s

construction project.” CR1227. All of these abuses occurred long before the

Kainthlas allegedly breached the parties’ contract. Because this evidence supports

the jury’s answer to question 5, the Court should overrule Appellants’ third issue.

The jury also found that Appellants promised to provide the Kainthlas with a

$10,000 credit toward the cost of their refrigerator, and Appellants breached this

term of the contract. CR1229, 1231. Appellants do not challenge these findings.

The jury heard evidence that Strickland denied this obligation and said he could not

perform it back in May 2020. See P.Ex.138 at 14RR198-99; 5RR82-84. Then on

November 11, 2020, when the parties were still trying to work together, Strickland

flatly told the Kainthlas “I’m not paying money for the fridge.” D.Ex.246 at

15RR233. Based on this evidence, the jury could have concluded that Appellants’

28
unchallenged breach of their contractual obligation to pay $10,000 toward the

refrigerator occurred before the Kainthlas’ alleged breach (which, again, logically

could not have occurred before November 20, 2020).

The jury also could have found that, before the Kainthlas’ alleged breach,

Appellants breached their contractual obligation to “timely pay the sub-contractors

and vendors for the work they performed on the home.” In fact, it was Appellants’

failure to pay BMC on time—despite receiving reimbursement from the Kainthlas

for BMC’s invoices—that led to the Kainthlas’ refusal to accept Appellants’

November 2020 invoice without first receiving an accounting of their funds. See

supra at 20-22.

C. Appellants did not conclusively prove their claim, and the jury’s
failure to find in their favor is not against the great weight and
preponderance of the evidence.

The above-discussed proof of Appellants’ prior breaches defeats their third

issue. Alternatively, the Court should overrule the third issue because Appellants

did not conclusively prove their claim in the first place, and the verdict is not against

the great weight and preponderance of the evidence.

Appellants tell this Court that they “proved up builder fees totaling $19,425.22

that were earned but never paid.” Appellants’ Br. at 29. But the chart they provide

often appears to have been created from the record in some other case. The Kainthlas

29
have reproduced Appellants’ chart below with comments regarding their evidentiary

citations:

Builder Proof What the record citations
Fee Owed really say
to Trident
Homes
Earthstone $287.91 DX22; Certain invoices are mentioned,
Colours 7RR73-79 but not in these amounts. And the
right to payment is not
Old Stone $1,705.61 DX22; established, but admittedly in
Marble and 7RR73-79 dispute: “They were still trying to
Granite work some things out with him
and Ryan.” 7RR77.
Art’s Fencing $738.30 DX22;
7RR73-79
Emser Tile $509.37 DX22; The charge is identified on DX22
6RR15-16 and Kainthla admits that he
received but did not pay an
invoice for 7,389.83. No proof is
cited regarding the legitimacy of
the invoice or an amount owed to
Appellants.
Frank Tello $663.50 DX20; PX90; The cited testimony does not
7RR94-95 mention Frank Tello.
Additional $3,733.48 7RR104-05; The cited testimony does not
Invoices DX22 mention any additional invoices
Submitted to submitted to Kainthlas, much less
Kainthlas by establish liability for any
Trident Homes particular amount.
Subcontractors $254.71 7RR104-05; The cited testimony does not
paid by DX22 mention any subcontractors paid
Kainthlas by Kainthlas outside of Trident
outside of Homes, much less establish
Trident Homes liability for any particular
amount.
Items $1,450.01 7RR96-97; DX31 does not appear in the
purchased by DX31 record. The cited testimony does
Kainthlas not quantify any particular

30
outside of amount or value of items
Trident Homes purchased outside of Trident
Homes.
Gutters $925 7RR95-96 The cited testimony does not
mention gutters.
Climate $2,379.40 7RR96-97; DX31 does not appear in the
Doctors DX 31 record. The cited testimony does
not mention Climate Doctors.
Cabinets – Juan $62.50 DX22; 7RR95 The cited testimony does not
Tzunun mention cabinets or Juan Tzunun.
Audio Video $1,949.91 5RR96-97 The cited testimony does not
mention audio or video.
Art’s Fencing $1,455.00 DX22; 6RR8- The cited testimony establishes
(additional 16 that Art’s Fencing initially
work and requested a 50% payment, and
invoice) Ramesh Kainthla paid the
requested amount. He did not
pay two later invoices 6RR13-14,
16. There is no proof that a
builder’s fee of over $1,400 was
earned or owed.
Factory $3,094.33 DX22; 6RR8- The cited testimony does not
Builders 16 mention Factory Builders.

Appellants simply have not shown that they proved their case, much less that the

jury lacked discretion to disbelieve it.

Moreover, Strickland admitted that more than half of the builder’s fee

Appellants claim is owed to them was calculated based on items that Appellants did

not acquire for the home and never installed on the Kainthla home. 8RR150.

Ramesh Kainthla testified that he bought certain items when Appellants could not

or would not, and he told Strickland that he would provide purchase receipts and pay

Appellants their 10% builder fee on these items as soon as Appellants installed them

31
on the house. 5RR79-82. It was well within the jury’s discretion to find that

Appellants had not earned a builders fee on items that the Kainthlas purchased and

Appellants never installed.

There is no evidence that the Kainthlas ever failed to timely pay any invoice

or associated builder fee from the beginning of the project in 2017 through and

including the revised October 20, 2020 invoice that they paid on November 2, 2020.

At that time, the Kainthlas had paid more than $1.8 million in contractor invoices

and more than $180,000 in builder fees. PX88 at 14RR137. Afterwards, Appellants

submitted only one more invoice in the aggregate amount of $111,709. Id. This

November 20, 2020 invoice included all of the amounts that Appellants voluntarily

removed from the original October 22 invoice, plus new charges. Even if—as

Appellants allege—the Kainthlas breached the contract by not paying this November

20 invoice, the ten percent builder’s fee associated with it would have been only

approximately $11,171. The money that Appellants appropriated from the

Kainthlas’ construction trust account—net of the amounts the judgment returns to

the Kainthlas—more than covered this alleged liability.

Appellants never accounted for the full amount of Kainthlas’ $30,100 deposit

into their construction trust account. The record showed that, prior to November 20,

2020, the Kainthlas had promptly paid in full every single invoice that Appellants

submitted to them and, in each instance, added the 10% builder’s fee. 7RR76. For

32
this reason, the balance in the Kainthlas’ construction trust account in November

2020 should have been $30,100.

Yet the record shows that the balance in this account was only $13,538.05 in

November 2020. 7RR181. The jury was free to conclude that Appellants had

drained $16,561.95 from the Kainthlas’ trust account by late November 2020, more

than covering the Kainthlas’ alleged liability for unpaid builder’s fees and negating

Appellants’ claim for breach of contract.

Of course, we do not know the exact reason or reasons why the jury rejected

Appellants’ claim for breach of contract. The evidence permitted the jury to

conclude that the Kainthlas did not breach the agreement or that any breach post-

dated material breaches by Appellants. Either way, this Court should hold that

Appellants did not conclusively prove their claim and that the verdict is not against

the great weight and preponderance of the evidence.

IV. The trial court did not abuse its discretion in awarding attorney’s
fees.

“To recover attorney’s fees under Section 38.001, a party must (1) prevail on

a cause of action for which attorney’s fees are recoverable, and (2) recover

damages.” Green Int’l v. Solis, 951 S.W.2d 384, 390 (Tex. 1997) (citing State Farm

Life Ins. Co. v. Beaston, 907 S.W.2d 430, 437 (Tex. 1995)). “[T]he the idea behind

awarding attorney’s fees in fee-shifting situations is to compensate the prevailing

party generally for its reasonable losses resulting from the litigation process.”

33
Rohrmoos Venture v. UTSW DVA Healthcare LLP, 578 S.W.3d 469, 487 (Tex.

2019).

The Kainthlas are entitled to an award of attorney’s fees because they

prevailed on their claim for breach of contract and recovered damages on that claim.

Tex. Civ. Prac. & Rem. Code § 38.001(b)(8). The amount awarded in the judgment

is the amount the Kainthlas actually incurred to litigate their case and is therefore

the amount required to compensate them for their reasonable losses resulting from

the litigation process.

This amount—$233,769.83—was based on the hours reasonably worked by

capable, experienced lawyers multiplied by a modest rate of only $350 per hour and

discounted by a total of more than $60,000. 14RR222-24. Appellants do not claim

that the rate is unreasonable or that the amount of time spent on any task was

unreasonable (except in the context of segregation). The trial court was entitled to

take judicial notice of the usual and customary attorney’s fees and the contents of

the case file. Tex. Civ. Prac. & Rem. Code § 38.003; see 14RR222-25 (discussing,

without contradiction the complexity and duration of the case). This Court should

reject Appellants’ three challenges to the attorney’s-fee award.

A. Appellants did not conclusively establish the affirmative defense of
excessive demand.

Appellants initially challenge the presentment requirement on the Kainthlas’

claim for attorney’s fees, arguing that they should take nothing “as a matter of law”

34
because their pretrial demand was excessive. Appellants’ Br. at 48. The Court

should reject this argument for multiple reasons.

First, Appellants did not preserve this challenge for judicial review. “To

preserve an excessive-demand challenge, a debtor is required to (1) plead excessive

demand as an affirmative defense to the claim for attorney’s fees and (2) request and

obtain findings of fact regarding the essential elements of excessive demand.”

United Servs. Auto. Ass’n v. Hayes, 507 S.W.3d 263, 279 (Tex. App.—Houston [1st

Dist.] 2016, pet. dism’d). Despite pleading 27 affirmative defenses, Appellants did

not plead excessive demand. CR60-63. This defense has been waived.

Second, Appellants did not conclusively prove this defense. Even if the

Kainthlas’ pretrial demand of approximately $96,000 was unreasonably high—it

was not, as shown below—that is insufficient to establish the defense.

“[A]pplication of the excessive-demand doctrine is limited to situations in which a

creditor has refused a tender of the amount ‘actually due’ or has clearly indicated to

the debtor that such a tender would be refused.” United Servs. Auto. Ass’n, 507

S.W.3d at 270; Hernandez v. Lautensack, 201 S.W.3d 771, 777-78 (Tex. App.—

Fort Worth 2006, pet. denied); see also Findlay v. Cave, 611 S.W.2d 57, 58 (Tex.

1981) (rejecting an excessive-demand defense because the defendant refused to offer

the amount owed and “there has been no claim that [plaintiff] would have refused

tender of the $ 5,624.23 the jury found owing to him”); Tuthill v. Sw. Pub. Serv. Co.,

35
614 S.W.2d 205, 212 (Tex. App.—Amarillo 1981, writ ref’d n.r.e.) (“a demand is

not ‘excessive’ unless . . . the creditor either refuses, or clearly indicates that he will

refuse, tender of the amount actually due”).

Here, Appellants never offered to pay the amounts awarded by the jury, and

they introduced no evidence that the Kainthlas would have refused a tender of those

amounts. To the contrary, Appellants initially threatened to sue the Kainthlas, and

their consistent position was that the Kainthlas owed them money, not the other way

around. 5RR74; P.Ex.44 at 14RR30. The complete absence of proof that Appellants

would have paid a demand for the amount found owing defeats their unpleaded

excessive-demand defense as a matter of law.

Finally, the evidence relevant to this unpleaded affirmative defense was

contested, not conclusive. Appellants argue that the demand was unreasonable

because it was “nearly four times the amount the jury ultimately awarded.”

Appellants’ Br. at 47. The court rejected an identical argument on stronger facts in

McMillin v. State Farm Lloyds, 180 S.W.3d 183, 209 (Tex. App.—Austin 2005, pet.

denied). There, the plaintiffs made a pretrial demand of $950,000, yet recovered

only $1,000 at trial. Like Appellants here, State Farm argued that the plaintiffs could

not recover attorney’s fees due to their demand being excessive and “point[ed] to

the judgment as showing that the demand was unreasonable.” Id. Rejecting this

argument, the court explained that “the size of the verdict does not prove that the

36
[plaintiffs] would not have taken a lesser amount to settle the dispute, nor does it

prove as a matter of law that the [plaintiffs’] demand was unreasonable.” Id. The

same is true here. See also Panizo v. Young Men’s Christian Ass’n of Greater Hous.

Area, 938 S.W.2d 163, 169 (Tex. App.—Houston [1st Dist.] 1996, no

pet.) (unliquidated demand of $125,000 not excessive even though jury awarded

only $1,000).

Appellants also contend that Ramesh Kainthla “conceded under oath that the

$95,955.46 demand was ‘not reasonable.’” Appellants’ Br. at 47. As shown in the

testimony set forth in their brief, however, this concession was expressly tied to the

amount of money Trident Homes allegedly had in its checking account at the time

of the demand. Id. at 47-48 (quoting 6RR80-81). The trial court was not bound to

accept this testimony as a concession that the demand was an unreasonable estimate

of the Kainthlas’ damages. The court could reasonably have interpreted Ramesh

Kainthla’s testimony as merely agreeing it was not reasonable to expect Trident to

pay more than $95,000 “at that time” (6RR80-81) because Trident did not have the

funds available in the referenced checking account “at that time.”

Regardless, Kainthla’s testimony is not the only relevant evidence the trial

court heard on this topic. As aptly summarized in Appellants’ brief, the Kainthlas

sought recovery for itemized losses that totaled considerably more than the pre-suit

demand. See Appellants’ Br. at 50-53. They introduced a damages model totaling

37
over $319,000. D.Ex.390 at 15RR310-13. This is evidence that the Kainthlas had

a good-faith basis for claiming the amount they demanded. See, e.g., Staff Indus.,

Inc. v. Hallmark Contracting, Inc., 846 S.W.2d 542, 548 (Tex. App.—Corpus

Christi 1993, no writ) (“absent some evidence of unreasonableness or bad faith, a

demand is not excessive merely because it is greater than that which is later

determined at trial to be due”) (citing Findlay, 611 S.W.2d at 58).

Having admitted evidence of claimed damages in excess of three times the

Kainthlas’ demand, the trial court had an ample basis for rejecting any claim of

excessive demand. Even though the jury exercised its prerogative not to award the

full amount of these claimed damages, the Kainthlas’ proof is evidence the trial court

could have considered in determining that their pre-suit demand was not excessive.

B. The amount of attorney’s fees awarded is not excessive merely
because the jury awarded lower damages than the Kainthlas
sought.
Relatedly, Appellants assert that the attorney’s-fee award is not supported by

legally or factually sufficient evidence. Appellant’s Br. at 49. But they do not back

this contention with any analysis of the record evidence or any reference to the

standards governing such contentions. Rather, they superficially argue that the

award is excessive because it is disproportionate to the amount of damages the

Kainthlas recovered. Id. at 49-53. Appellants cite a total of three cases, none of

which supports this contention.

38
The issue in Intercontinental Group was whether the plaintiff constituted a

“prevailing party” under a contract. KB Home obtained a verdict on its claim for

breach of contract, but the jury awarded no damages. The Supreme Court held that

because KB Home recovered no damages on its claim for breach of contract, it could

not be considered to have “prevailed” on that claim. “Whether a party prevails turns

on whether the party prevails upon the court to award it something, either monetary

or equitable.” Intercontinental Grp. P’ship v. KB Home Lone Star L.P., 295 S.W.3d

650, 655 (Tex. 2009). “The jury answered ‘0’ on damages, and KB Home sought

no other type of relief, so the trial court should have rendered a take-nothing

judgment against KB Home on its contract claim.” Id. “A zero on damages

necessarily zeroes out ‘prevailing party’ status for KB Home.” Id. at 655-66.

Because the Kainthlas were awarded money on their breach-of-contract claim,

Intercontinental Group is irrelevant here.

The issue in Drummond was whether the defendant was a prevailing party

under a contract. Urban sued Drummond for breach of the parties’ agreement.

Although the jury found that both parties breached, it found that Urban breached

first, which meant that Drummond’s breach was excused as a matter of law.

Drummond v. WWW.URBAN.INC., 508 S.W.3d 657, 671 (Tex. App.—Houston [1st

Dist.] 2016, no pet.). Based on the verdict, the trial court rendered judgment that

Urban take nothing on its claim for breach of contract. Having defeated Urban’s

39
claim, the court of appeals held that Drummond was the “prevailing party” under the

contract and was therefore entitled to recover attorney’s fees: “Drummond prevailed

at trial by successfully defending against the main issue in this case, i.e., Urban’s

breach of contract claim.” Id. at 669. Because the Kainthlas do not seek attorney’s

fees as prevailing defendants, Drummond has nothing to do with this case.

The only other case cited by Appellants in this section of their brief is the

Supreme Court’s leading opinion on attorney’s fees, Rohrmoos Venture v. UTSW

DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019). Appellants concede that

Rohrmoos requires a trial court to calculate a lode star when considering an award

of attorney’s fees—the number of hours reasonably expended multiplied by a

reasonable rate for the work. Appellants’ Br. at 49. In fact, Rohrmoos establishes

that this product yields a “presumptively reasonable” fee. Id. at 496.

Appellants then state that “the court may adjust the lodestar—up or down—

based on specific factors, with the most important factor being the result obtained.”

Appellants’ Br. at 49 (citing Rohrmoos). Even if this were a correct reading of

Rohrmoos, it would not help Appellants because they are arguing that the court must

adjust the lodestar, not that it “may” do so. More importantly, Appellants misread

Rohrmoos. Nothing in Rohrmoos suggests that “results obtained” is the most

important factor to be considered in adjusting a lodestar. To the contrary, the Court

explained that “results obtained” is usually subsumed in the lodestar itself:

40
In Texas courts, the base lodestar calculation of reasonable
hours times a reasonable rate should account for any
results obtained up to trial. But to the extent that the
results obtained are not reflected in the base lodestar, then
the fact finder may determine whether the results obtained
consideration necessitates an adjustment to achieve a
reasonable fee under the second step of the lodestar
method. Cf. Barker v. Eckman, 213 S.W.3d 306, 313–14
(Tex. 2006).
Rohrmoos, 578 S.W.3d at 500 n.12. Barker illustrates a unique circumstance when

“results obtained” would not already be baked into the lodestar determination.

There, a jury awarded damages of approximately $111,000, and the jury was

instructed to consider this result in fashioning an award of attorney’s fees. The court

of appeals reduced the damages award down to $16,000 and then ordered a new trial

on attorney’s fees based on this post-trial adjustment of the damages award. Barker,

213 S.W.3d at 313–14. The Court could not determine whether the attorney’s-fee

award should stand or not because it did not know how much weight the jury gave

the “results obtained” factor. Id. at 314. Neither Barker nor Rohrmoos in any way

suggests that an appellate court should use “results obtained” to reduce a trial court’s

award of attorney’s fees when the actual damages are not adjusted.

In fact, Appellants cite a grand total of zero cases in which any appellate court

has reversed an award of attorney’s fees based on its assessment that the award is

disproportionate to the results obtained. Texas courts require an award of attorney’s

41
fees to be reasonably proportionate to the amount in controversy, not to the final

amount awarded.

The applicable rules are discussed in Metroplex Mailing Servs. v. RR

Donnelley & Sons Co., 410 S.W.3d 889, 894 (Tex. App.—Dallas 2013, no pet.),

which rejected an argument identical to Appellants’ argument. Donnelley recovered

a judgment against Metroplex for $40,391.28 in actual damages and $538,358.32 in

attorney’s fees. This ratio of more than 13:1 significantly exceeds the 8:1 ratio we

have here. The court’s analysis is squarely on point:

Metroplex and Marion do not challenge the evidence
supporting the award per se in their request for remittitur,
but argue only that the award of attorney’s fees is
disproportionate to the award of damages. While
attorney’s fees should bear some reasonable relationship
to the amount in controversy, there is no rule that fees
cannot be more than the actual damages awarded. Indeed,
the amount awarded for attorney’s fees can greatly exceed
the amount of damages recovered. In this case, the legal
issues involved claims and counterclaims with damages
sought totaling more than $3 million. Donnelley submitted
detailed invoices itemizing the majority of the work
performed and there is no evidence that the rate charged
by Donnelley’s attorneys was unreasonable. Based on the
record before us, we conclude the evidence is factually
sufficient to support the award and we decline to suggest
a remittitur.

Metroplex Mailing Servs, 410 S.W.3d at 900-01 (multiple citations omitted).

Likewise, this case was complex, with claims and counterclaims necessitating

a 44-page jury charge. The Kainthlas submitted detailed invoices itemizing the work

42
performed by their lawyers. 14RR221-292. Appellants do not contend that the

hours expended or the rates charged were unreasonable. The mere fact that the jury

awarded less damages than the Kainthlas sought does not undermine their right to

recover the reasonable and necessary fees they incurred to prosecute the case. See

Rohrmoos, 578 S.W.3d at 487 (“the idea behind awarding attorney’s fees in fee-

shifting situations is to compensate the prevailing party generally for its reasonable

losses resulting from the litigation process”). This Court should reject Appellants’

excessiveness argument.

C. Proof of the Kainthlas’ attorney’s fees was adequately segregated.

Finally, the Court should reject Appellants’ challenge that the Kainthlas

“failed to segregate.” Appellants’ Br. at 53. This argument is primarily a repackaged

version of their complaint that the attorney’s fees are excessive in light of the actual

damages recovered. Appellants argue that the Kainthlas should have segregated the

time spent on the damages elements for which they recovered and should not be

allowed to recover for time spent pursuing damages elements that the jury did not

award. See Appellants’ Br. at 55-56. No case requires this sort of segregation.

The Kainthlas admittedly pled and submitted to the jury causes of action for

which attorney’s fees were recoverable and causes of action for which they were not

recoverable. In this case more than most, however, not only were the facts

underlying each claim intertwined, but so were the legal elements and hence the time

43
spent trying to prove them. The vast majority of the legal services performed in this

case “advance[d] both a recoverable and unrecoverable claim,” rendering them “so

intertwined that they need not be segregated.” Tony Gullo Motors I, L.P. v. Chapa,

212 S.W.3d 299, 313-14 (Tex. 2006).

Because Appellants do not claim charge error, the Court evaluates the

evidence “in light of the charge as given.” Safeshred, Inc. v. Martinez, 365 S.W.3d

655, 661 n.3 (Tex. 2012); City of Fort Worth v. Zimlich, 29 S.W.3d 62, 71 (Tex.

2000). Several aspects of the jury charge in this case establish a broader than usual

overlap between the tort claims and the contract claims.

For example, the jury found that the parties’ contract included a term that

Appellants “would open a construction trust account and funds from that account

would only be used to pay for the Kainthlas’ construction project.” CR1227. Work

performed by the Kainthlas’ lawyers to prove that Appellants breached this

contractual provision simultaneously advanced their claims for violation of the

Texas Construction Trust Act, violation of the DTPA, fraud, money had and

received, and breach of fiduciary duty, all of which were based on the same conduct.

Recovery of fees for the hours spent proving that Appellants misused the trust funds

is “not disallowed simply because they do double service.” Tony Gullo, 212 S.W.3d

at 313.

44
Likewise, Appellants had a contractual obligation to “timely pay the sub-

contractors and vendors for the work they performed on the house.” CR1228.

Evidence admitted at trial established that Appellants breached this duty by

sometimes keeping for themselves money that the Kainthlas had already paid them

for the purpose of paying subcontractors. The legal work spent proving a violation

of this contractual term simultaneously supported the Kainthlas’ claims for fraud,

violation of the DTPA, money had and received, and breach of fiduciary duty.

Further still, in connection the claim for breach of contract, the jury was

instructed to consider “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.” CR1230. Fees incurred for legal work aimed at proving that Appellants

acted fraudulently, unconscionably, in violation of their fiduciary duties, and in

violation of the Texas Construction Fund Act were recoverable in this case because

they helped establish Appellants’ lack of good faith and fair dealing and therefore

helped establish the claim for breach of contract.

The trial court could reasonably have concluded, based on the unique facts of

this case and the specific charge to the jury, that little or none of the fees charged by

the Kainthlas’ lawyers “relate solely to a claim for which such fees are

unrecoverable.” Tony Gullo, 212 S.W.3d at 313. The court also heard undisputed

evidence that the Kainthlas’ lawyers wrote off $50,000 worth of their time and thus

45
discounted their claim against Appellants by that amount. 14RR223; 12RR100. On

top of that, the Kainthlas deducted an additional 5% to account for the small amount

of fees that were possibly incurred on tasks that related solely to claims for which

attorney’s fees were unrecoverable. 14RR224; 12RR100-01.

Appellants criticize this 5% estimate as “conclusory.” But the Supreme Court

anticipated and rejected this attack. The Court recognized that “many if not most

legal fees in such cases cannot and need not be precisely allocated to one claim or

the other.” Id. Accordingly, the Court advised lawyers to segregate their fees

exactly the way the Kainthlas lawyers did here. They “did not have to keep separate

time records when they drafted the fraud, contract, or DTPA paragraphs of [the

Kainthlas’] petition; an opinion would have sufficed stating that, for example, 95

percent of their drafting time would have been necessary even if there had been no

fraud claim.” Id. at 314. The evidence produced in this case—time records

accompanied by testimony from the Kainthlas’ lawyer—is legally and factually

sufficient under Tony Gullo to support the trial court’s fee award.

The contrary testimony of Appellants’ counsel does not require reversal of the

award. They argue that “the overwhelming majority of the case was devoted to

claims on which Plaintiffs did not prevail,” citing as an example the Kainthlas’ claim

for extra costs associated with the electrical work. Appellants’ Br. at 55. But the

Kainthlas unquestionably pursued recovery of these costs as an element of their

46
damages for breach of contract. CR1231. The fact that the jury awarded $0 on this

element of the Kainthlas’ claimed contract damages does not raise a segregation

issue. Appellants cite no authority for the proposition that a prevailing plaintiff must

segregate out fees spent trying to prove elements of contract damages that a jury

declines to award.

Finally, Appellants posit that “Plaintiffs’ own fee invoices, attached to their

affidavit (Exhibit T), show a heavy focus on discovery, depositions, and motions

practice relating to claims for which fees are not recoverable.” Appellants’ Br. at

56. But Appellants do not discuss this evidence in any meaningful way. They do

not challenge a single time entry. They do not identify a single witness whose

deposition would not have been taken, a single discovery request that would not have

been served, or a single motion that would not have been filed, if the Kainthlas had

asserted only their claim for breach of contract (which, again, required them to

negate Appellants’ good faith). Appellants thus utterly fail to carry their appellate

burden of establishing that the totality of evidence considered by the trial court was

factually insufficient to support an award of attorney’s fees constituting the amount

the Kainthlas incurred, less $50,000, less 5%.

PRAYER

The Kainthlas pray that the Court affirm the judgment of the trial court and

award them such further relief to which they may be entitled.

47
Respectfully submitted,

EWELL, BROWN, BLANKE & KNIGHT LLP

By: /s/ Joseph R. Knight
Joseph R. Knight
State Bar No. 11601275
jknight@ebbklaw.com
111 Congress Avenue, Suite 2800
Austin, Texas 78701
(512) 770-4010

WATSON LAW FIRM
J. Davis Watson
State Bar No. 24004979
dwatson@watsonlawyers.com
Sean Hester
State Bar No. 00784266
shester@watsonlawyers.com
1450 Copperfield Pkwy, Suite 300
College Station, Texas 77845
(979) 703-4044

Attorneys for Appellees

48
CERTIFICATE OF COMPLIANCE

As required by Texas Rule of Appellate Produce 9.4(i)(3), I certify that

this Appellees’ Brief contains 11,094 words, excluding the parts of the brief

exempted by Rule 9.4(i).

/s/ Joseph R. Knight
Joseph R. Knight

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this Brief has been served upon

the following via electronic mail on the 5th day of December 2025.

Chad Flores
cf@chadflores.law
Flores Law PLLC
917 Franklin Street, Suite 600
Houston, Texas 77002
Matthew D. Sharpe
matt.sharpe@lonestarlawoffice.com
Sharpe Law, PC
416 Tarrow St
College Station, Texas 77840

Mark Hellinger
mhellinger@hellingerlawfirm.com
The Hellinger Law Firm
12 Greenway Plaza, Suite 1100
Houston, TX 77046-1201

/ s / Joseph R. Knight
Joseph R. Knight

49
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Envelope ID: 108777694
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Status as of 12/5/2025 1:55 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Mark Hellinger mhellinger@hellingerlawfirm.com 12/5/2025 1:45:01 PM SENT

Matthew D.Sharpe matt.sharpe@lonestarlawoffice.com 12/5/2025 1:45:01 PM SENT

Charles Flores cf@chadflores.law 12/5/2025 1:45:01 PM SENT

Charles Flores cf@chadflores.law 12/5/2025 1:45:01 PM SENT

J. Davis Watson dwatson@watsonlawyers.com 12/5/2025 1:45:01 PM SENT

Sean Hester shester@watsonlawyers.com 12/5/2025 1:45:01 PM SENT