Raitz Enterprises Inc., D/B/A U.S. Sand and Gravel v. Javier Sanchez, Jr.

Opinion filed July 30, 2026 In The Eleventh Court of Appeals __________ No. 11-25-00033-CV __________ RAITZ ENTERPRISES, INC., D/B/A U.S. SAND AND GRAVEL, Appellant V. JAVIER SANCHEZ, JR., Appellee On Appeal from the County Court at Law Erath County, Texas Trial Court Cause No. CV09507 MEMORANDUM OPINION This appeal concerns a contractual dispute between a general contractor and its subcontractor. Appellant, Raitz Enterprises, Inc., d/b/a U.S. Sand and Gravel (the general contractor), engaged Appellee, Javier Sanchez, Jr. (the subcontractor), to perform concrete work on three separate construction projects. When problems ensued with one of the projects, Raitz refused to pay Sanchez for work he performed on all three projects; Sanchez then sued Raitz for breach of contract, quantum meruit, and unjust enrichment. After a jury trial, the jury found that Raitz failed to comply with the parties’ agreements, awarded Sanchez $26,640 in damages, and found reasonable and necessary attorney’s fees for each of the contracts. The trial court rendered judgment on the jury’s verdicts and awarded Sanchez $87,417.50 in attorney’s fees. On appeal, Raitz raises five issues: (1) the evidence is legally and factually insufficient to support the jury’s liability and damages findings; (2) the trial court abused its discretion when it excluded certain testimony proffered by Casey Raitz; (3) the trial court abused its discretion when it refused to submit Raitz’s requested jury instruction; (4) the trial court’s denial of Raitz’s request to amend its pleadings was an abuse of discretion; and (5) the evidence is legally and factually insufficient to support the award of attorney’s fees. We affirm the trial court’s judgment and hold that: (1) the evidence is sufficient to support the jury’s liability and damages findings, because the jury found that Raitz failed to comply with the agreements and Sanchez did not; (2) the evidence is sufficient to support the jury’s award of attorney’s fees; and (3) the trial court did not err or abuse its discretion when it (a) excluded Casey Raitz’s proffered testimony and (b) denied Raitz’s requested jury instruction and pleading amendment. I. Factual Background This dispute centers on three concrete jobs that Raitz hired Sanchez to complete: the Woodlands project, the Slab project, and the Iredell project. The concrete for each job was supplied by Big State Concrete, which Casey Raitz, the owner of Raitz Enterprises and U.S. Sand & Gravel, also partially owned. Sanchez had completed another concrete job for Raitz in the past in which Raitz supplied the concrete and paid Sanchez. 2  Big State Concrete used volumetric trucks, which mix the ingredients that are required to make concrete—sand, gravel, water, and cement—inside an auger that is mounted on a truck. Volumetric trucks differ from “barrel-type” cement trucks that are more typically seen on the road, which carry concrete that is pre-mixed at a concrete plant and loaded into a truck for delivery to a job site. A. The Woodlands Project Raitz hired Sanchez to complete the Woodlands project—a large job for which Raitz agreed to pay Sanchez $38,540. Sanchez was not paid any amount until this project was about three-quarters completed, at which point he informed Raitz that he would cease working on the project until he was paid; Raitz then paid him one-half of the agreed price: $19,270. Sanchez testified that Raitz also agreed to reimburse him for one-half of the rental cost—$1,745—of a pump truck. Although a text message from Raitz’s representative stated “Casey probably isn’t going to approve half on the pump,” Sanchez testified that the reimbursement was approved in a subsequent phone call. After the completion of the Woodlands project, even though Sanchez requested payment multiple times and did not receive any complaints about the quality of the work that he performed, Raitz never paid him the second half of the price for this project, nor did he reimburse him for one-half of the pump truck rental. B. The Slab Project While Sanchez was working on the Woodlands project, Raitz hired him to complete another job, the Slab project, at a facility for U.S. Sand & Gravel. The parties did not formally discuss or agree on a price for this job. Sanchez testified that he performed preparatory work for the Slab project, such as digging and forming the soil, installing footing, and removing large rocks. After the preparatory work was completed, the remaining tasks were to set rebar and pour concrete. Sanchez testified that he estimated the value of the work that he completed on the Slab project 3 to be $4,950, based on a rate of $110 per hour for over eleven hours of work performed by him and three hired workers. However, Sanchez alleged in his petition that he only performed five hours of work on the Slab project, at a rate of $110 per hour. Casey testified that he discussed the Slab project with Sanchez, but ultimately Sanchez did not perform any work on this project and Casey paid someone else to do it. Casey agreed that multiple texts between he, Raitz’s project manager Kylee Fields, and Sanchez indicated that Sanchez worked on the Slab project, but he asserted that because Sanchez never provided him with a formal estimate, it was never confirmed that Sanchez would work on the Slab project. But he also agreed that, after the Iredell pour and amidst the ensuing dispute, he texted Sanchez, “Go ahead and stop eastland yard [w]e are going another route,” which referred to the Slab project. Consequently, Sanchez never set rebar or poured the concrete for the Slab project, nor was he paid for the preparatory work that he had completed there. C. The Iredell Project Before Sanchez could complete the Slab project, Raitz asked him to pause work on it and focus on another job—the Iredell project. Sanchez quoted a price of $10,250 to Raitz for the Iredell project. Sanchez and five workers excavated the site and completed preparatory work. However, problems ensued when they began to pour the slab. To pour the concrete that was mixed in these volumetric trucks, the Iredell project required a rented pump truck that could pump the concrete out of the volumetric truck through a hose. When they began to pour the Iredell slab, the concrete mix began clogging the pump. Sanchez testified that the supply of gravel and cement—ingredients required to mix concrete—provided by Raitz kept running out. He testified that he informed Raitz over the phone that something was wrong, but he was instructed to continue pouring the concrete. 4  Sanchez testified that these problems required the volumetric truck to leave the jobsite multiple times to refill the missing ingredients. These delays affected the quality of the concrete that had already been poured; Sanchez testified that the optimal way in which to pour a concrete slab is to do it all at one time because if one pours new, wet concrete next to concrete that has begun to set, a seam—sometimes called a “cold joint”—is created that can lead to cracks in the slab. Multiple “cold joints” occurred at the Iredell job because of the delays caused by the concrete mix problems. Rick Rodriguez, Jr., the operations manager for PumpCrete, the concrete pump company, told Sanchez over the phone that the concrete mix was defective. Later in the day, Rodriguez sent Sanchez a video of a clog in the pump; Rodriguez could be heard in the video explaining that there was no sand in the mix, which was clogging the pump. Rodriguez advised Sanchez to check the concrete mix because of these problems. Rodriguez testified that volumetric trucks tend to jam and have issues. According to Rodriguez, he had worked in the concrete business for eleven years and had completed over a thousand jobs that involved concrete pours. At the Iredell project, the pump truck struggled to pump because the volumetric trucks were jamming and the auger could not mix the concrete ingredients correctly. Rodriguez testified that the mixture was either too rocky or too sandy; this required the supervisor for the concrete supply company to adjust and readjust the mixture ratios multiple times. The volumetric trucks also ran out of ingredients—sand and gravel—which required the trucks to leave the jobsite to be refilled, as well as to be cleared of the jamming problems. Because of these issues with the mix, the pump truck had to stop operating and cleared multiple times. These were consistent problems throughout the pour. 5  Eventually, the pump truck became entirely jammed and disabled; PumpCrete left the jobsite to clean out the pipes of their pump truck before the concrete set inside the pipes. This process delayed the pour for approximately four hours. While cleaning out the pump truck, Rodriguez video recorded the concrete mix that came out of the pipes and sent the video to Sanchez. Rodriguez testified that because the mix was defective, it did not set in the pump truck pipes in the way they had expected and instead appeared to be a large unhardened “clump” that never bound. This was a further indication, according to Rodriguez, that the concrete mixture was defective; it should have set hours before the pump truck was cleaned. Rodriguez testified that the crumbling curbs were the result of the defective concrete mix. He further testified that the defects in the Iredell job were not the kind of flaws that could be attributed to the pourer, like Sanchez. Rodriguez stated it was “more than likely that’s [a result of] bad mix . . . unless somebody purposely and neglectfully decided just to shape it with their hand and leave it . . . I’ve never seen concrete do that that’s properly mixed.” He agreed that a bad finish or removing the forms too soon could also cause defects in the slab. He also agreed that problems could arise from not having enough workers on a job. But Rodriguez testified that he did not believe these issues arose from removing the forms too early because such defects would likely run the length of the form, and the defects in the Iredell slab appeared to be more scattered. Casey denied that the issues on the Iredell project were because of a bad mix of concrete. He testified that, although he was not present during the pour, it is not possible for a mix to be deficient because his volumetric trucks are computer- operated and preprogrammed, and a bad mix would have triggered an automatic shutdown of a truck. He testified that the trucks’ computers also printed a report of the precise mix components, but he was not in possession of those reports because he had sold his interest in Big State Concrete. When Sanchez texted Casey the video 6 from Rodriguez that showed the “clump” that came out of the pump truck from the Iredell project, Casey responded: “That’s not what went in concrete truck the entire time. Cannot blame this on concrete from one little part they pulled out. I have every ticket with [exact] pounds of everything that got poured.” Casey agreed that any machine can operate incorrectly and testified that although he saw the video that Rodriguez sent of the large “clump” that came out of the pump truck, it was impossible for the volumetric trucks to produce a “clump” of sand that large. D. The Dispute Sanchez stated in a text message to Raitz that the Iredell slab was defective because the concrete mix was bad and the waiting time on the concrete trucks was problematic during the pour. Sanchez attempted to repair the Iredell slab by grinding down parts of it with a rented grinder. He suggested the use of a two-inch overlay of pea gravel as another repair option. He also offered to demolish the slab so Raitz could restart the project from scratch, stating, “[N]o charge the least I can do s[]ince I left a bad finish on that slab.” Throughout the contentious aftermath of the Iredell project, Sanchez also continued to request payment for the Woodlands project. Raitz refused to pay Sanchez the balance for the Woodlands project or for any other project. Casey texted Sanchez that Raitz had hired another company to repair the Iredell slab, that Sanchez was “on the hook” for the slab, and that Raitz would not pay Sanchez anything until the Iredell slab was repaired and the cost of repairs would be deducted from the balances due Sanchez. After another refusal by Raitz to pay the Woodlands balance, Sanchez replied: “I’m not charging you iradell [sic] i know you your not paying me for that job I get it I lost money there it is what it is that’s why I didn’t mention it in the first place . . . my concern is on my money that is owed to me on the [Woodlands] job.” Sanchez testified that he made those statements because he needed to be paid for the Woodlands project, he did not believe that any argument with Casey about fault 7 would be productive, and he wanted to preserve a business relationship with Raitz. Sanchez testified that, despite those statements, he did not leave a bad finish on the Iredell slab, and he did the best he could with the bad concrete mix that Raitz provided. He believed that he did not have much leverage to negotiate with Raitz since Raitz insisted that Sanchez, not the concrete mix, was to blame for the defects in the Iredell slab. A few days after the Iredell pour, Raitz paid Sanchez $5,125—one-half of the quoted price for the Iredell project. At that point, according to Sanchez, Raitz still owed, but refused to pay him: • $19,270, the remaining balance for the Woodlands project; • $5,125, the remaining balance for the Iredell project; • reimbursement for one-half the rental payment to PumpCrete during the Woodlands project; and • the value of the preparatory work Sanchez performed on the Slab project. Sanchez sued Raitz for breach of contract, quantum meruit, and unjust enrichment. Raitz counterclaimed for breach of contract and breach of implied warranty of good and workmanlike services. At trial, the trial court excluded Raitz’s proffered evidence—Casey’s testimony—about the cost of remedial repairs for the Iredell slab, because the issue required expert testimony and Raitz did not designate Casey as an expert witness on the subject. Raitz made an offer of proof outside the presence of the jury in which Casey testified that, based on his firsthand knowledge and experience, the Iredell slab was deficient, and it was necessary to grind down the slab and apply an epoxy finish to correct and complete the job. Casey further testified that the cost charged by the other contractors he hired to complete these repairs was reasonable and necessary. The jury found that Raitz failed to comply with the Woodlands agreement and awarded Sanchez damages of $19,225, the balance of the agreed price, as well as 8 $1,745 as reimbursement for one-half of the rental payment due to PumpCrete. The jury also found that Sanchez performed compensable work for Raitz on the Slab project and awarded him $550 as the reasonable value of the compensable work. Finally, the jury found that Raitz, not Sanchez, failed to comply with the Iredell agreement and awarded Sanchez $5,120 for the balance of the agreed price for the Iredell agreement. The jury also awarded attorney’s fees to Sanchez for the three projects. The trial court signed a final judgment awarding Sanchez $26,640 in total damages and $87,417.50 in attorney’s fees. II. Analysis A. The Evidence is Sufficient to Support the Jury’s Verdicts In its first issue, Raitz claims that the evidence is legally and factually insufficient to support the jury’s liability and damages findings because, under the doctrine of substantial performance, the burden was on Sanchez to establish the cost of remedial repairs, and Sanchez offered no such evidence. Raitz also asserts that the jury’s finding that Sanchez did not breach the Iredell agreement is against the great weight and preponderance of the evidence because Sanchez admitted that he was responsible for the defects in the Iredell slab. We hold that the doctrine of substantial performance is inapplicable to this case because the jury found that Sanchez did not breach the Iredell agreement, and therefore Sanchez bore no burden to establish the cost of remedial repairs. Tacon Mech. Contractors, Inc. v. Grant Sheet Metal, Inc., 889 S.W.2d 666, 670 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (“The jury found that Tacon, and not Grant, breached the contract. Therefore, the doctrine of substantial performance is inapplicable.”). Moreover, the jury’s finding that Raitz, and not Sanchez, failed to comply with the Iredell agreement is not against the great weight and preponderance of the evidence. The jury was free to credit the evidence that the flaws in the slab were caused by defective concrete supplied by Raitz, as well as Sanchez’s testimony 9 that his text admitting fault was a desperate concession by him in an attempt to obtain payment for the Woodlands project, which Raitz was withholding, rather than a true admission of fault. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). 1. Standards of Review: Legal and Factual Sufficiency When parties challenge the legal sufficiency of the evidence to support an adverse finding on which they did not have the burden of proof at trial, they must demonstrate that there is no evidence to support the adverse finding. Mullins v. McWhirter, 724 S.W.3d 571, 578 (Tex. App.—Eastland 2025, pet. denied) (citing City of Keller, 168 S.W.3d at 827); see Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). Under a legal sufficiency review, we consider all the evidence in the light most favorable to the prevailing party, make every reasonable inference in that party’s favor, disregard contrary evidence unless a reasonable factfinder could not, and indulge every reasonable inference that would support it. City of Keller, 168 S.W.3d at 807, 822, 827. The evidence is legally insufficient to support a finding only if: (1) the record discloses a complete lack of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) there is no more than a scintilla of evidence to prove a vital fact; or (4) the evidence conclusively established the opposite of a vital fact. United Rentals N. Am., Inc. v. Evans, 668 S.W.3d 627, 640 (Tex. 2023) (citing Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018)); City of Keller, 168 S.W.3d at 810. “Anything more than a scintilla of evidence is legally sufficient to support the finding.” Mullins, 724 S.W.3d at 578 (quoting Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998)). “More than a scintilla of evidence exists when the evidence would enable reasonable and fair-minded people to reach different conclusions.” Id. at 578–79 (quoting Burbage v. Burbage, 447 S.W.3d 249, 259 (Tex. 2014)). “However, if the evidence is so weak that it only 10 creates a mere surmise or suspicion of its existence, it is regarded as no evidence.” Id. at 579 (quoting Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 156 (Tex. 2014)). “When reviewing the factual sufficiency of the evidence, we examine the entire record, considering all the evidence both in favor of and contrary to the finding.” 4922 Holdings, LLC v. Rivera, 625 S.W.3d 316, 324 (Tex. App.—Houston [14th Dist.] 2021, pet. denied) (citing Vast Constr., LLC v. CTC Contractors, LLC, 526 S.W.3d 709, 723 (Tex. App.—Houston [14th Dist.] 2017, no pet.)). We must review the evidence in a neutral light. Gonzalez v. Sanchez, 717 S.W.3d 516, 527 (Tex. App.—Eastland 2025, no pet.) (citing Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001)). If we set aside a judgment on the basis that a vital finding is not supported by factually sufficient evidence, we must detail the evidence that is relevant to the issue and specify how the contrary evidence greatly outweighs the evidence that supports the finding. Id. (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)). When a party attacks the factual sufficiency of an adverse finding on an issue on which it had the burden of proof, such as here, the party must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Francis, 46 S.W.3d at 242. However, when a party challenges the factual sufficiency of the evidence to support a finding on an issue for which it did not have the burden of proof at trial, we will set aside the finding only if the evidence in support of the finding is so weak or contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Gonzalez, 717 S.W.3d at 527 (citing Pool, 715 S.W.2d at 635); Cowan v. Worrell, 638 S.W.3d 244, 254 (Tex. App.—Eastland 2022, no pet.). 11  2. Breach of Contract, Substantial Performance, and the Proper Measure of Damages To prevail on a breach-of-contract claim, a party must establish: (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 to the plaintiff because of the defendant’s breach. Caprock Inv. Corp. v. Montgomery, 321 S.W.3d 91, 99 (Tex. App.—Eastland 2010, pet. denied). Breach-of-contract damages may be direct, consequential, or both. SM Energy Co. v. Buzzard Roost Farms, Inc., 727 S.W.3d 525, 550 (Tex. App.—Eastland 2025, no pet.) (citing Signature Indus. Servs., LLC v. Int’l Paper Co., 638 S.W.3d 179, 186 (Tex. 2022)). The appropriate measure of damages for a breach-of-contract claim is the benefit of the bargain denied to the injured party; its purpose is to restore the injured party to the economic position he would have enjoyed had the contract been performed. Id. at 551 (citing Mays v. Pierce, 203 S.W.3d 564, 577 (Tex. App.—Houston [14th Dist.] 2006, pet. denied)). Generally, a contracting party who is in default cannot maintain a suit for breach. Dobbins v. Redden, 785 S.W.2d 377, 378 (Tex. 1990). But the doctrine of substantial performance “allows a party to a contract, who is himself in breach but who nevertheless substantially completed performance, to recover damages for that performance.” Tacon, 889 S.W.2d at 670 (emphasis added) (citing Dobbins, 785 S.W.2d at 378). In the context of a contractual dispute between a subcontractor and a contractor, substantial performance is an equitable doctrine “that was adopted to allow a [subcontractor or] contractor who has substantially completed a construction contract to sue on the contract rather than being relegated to his cause of action for quantum meruit.” Kelly v. Tracy, No. 01-18-00913-CV, 2022 WL 2837335, at *6 (Tex. App.—Houston [1st Dist.] July 21, 2022, no pet.) (mem. op.) (quoting Vance v. My Apartment Steak House, 677 S.W.2d 480, 482 (Tex. 1984)); see 12 Atkinson v. Jackson Bros., 270 S.W. 848, 850 (Tex. Comm’n App. 1925, holding approved). In such cases, although the contractor is permitted to sue on the contract, his recovery is reduced by the cost of curing those defects for which he is responsible. 4922 Holdings, 625 S.W.3d at 329 (citing Vance, 677 S.W.2d at 482). It is the plaintiff contractor’s burden to plead and prove his entitlement to recovery under a theory of substantial performance. Kelly, 2022 WL 2837335, at *6 (citing Carr v. Norstok Bldg. Sys., Inc., 767 S.W.2d 936, 940 (Tex. App.—Beaumont 1989, no writ)). In that context, substantial performance is regarded as a condition precedent to the right to sue on a contract. Id. (citing Atkinson, 270 S.W. at 850). 3. Application Raitz contends that because “every case involving a disputed construction defect amounts to either a case of substantial performance . . . or no substantial performance,” the doctrine of substantial performance is inapplicable to a breach- of-contract claim in which the suing contractor did not breach the agreement. See Tacon, 889 S.W.2d at 670; Emerson Constr. Co., Inc. v. Ranger Fire, Inc., No. 03- 09-00567-CV, 2013 WL 4817551, at *5–6 (Tex. App.—Austin Aug. 29, 2013, no pet.) (mem. op.). The jury found that Sanchez did not breach the Iredell agreement. Because it is undisputed that Sanchez did not offer any evidence of the cost of remedial repairs for that project, if the doctrine of substantial performance did apply, the evidence would be legally insufficient to support the jury’s finding. Mullins, 724 S.W.3d at 578 (citing City of Keller, 168 S.W.3d at 827); Francis, 46 S.W.3d at 242. Whether the doctrine applies turns on whether Sanchez breached that agreement. Tacon, 889 S.W.2d at 670; see Emerson Constr., 2013 WL 4817551, at *5–6. Although it is undisputed that the Iredell slab was defective, causation was a contested issue at trial. Raitz contends that because Sanchez stated in a text that he 13 “left a bad finish” on the Iredell project, that he would not seek the remaining balance for that project, and that he attempted to repair the slab himself, he admitted to breaching the agreement. Sanchez argues that Raitz’s evidence does not establish that the jury’s finding is against the great weight and preponderance of the evidence because (1) there is substantial evidence that the defects in the slab were caused by the defective concrete that Raitz supplied for the project, and (2) Sanchez explained in his trial testimony that his text admission was a desperate attempt to negotiate payment for the Woodlands project, not a true admission of fault. There was an abundance of evidence presented that the concrete mix was defective, and the cause of the problems that were associated with the Iredell slab. Sanchez testified that the concrete mix repeatedly clogged the pump truck and that the volumetric trucks continuously experienced issues and delays, which resulted in “cold joints” in the slab and a crumbling finish. Rodriguez similarly testified to the clogging and mixing problems with the trucks, and he also blamed the concrete mix for causing these problems. Rodriguez testified that he had never seen properly mixed concrete cause the crumbling that occurred with the Iredell slab. He also sent a video of the contents of the pump truck: a large “clump” that had failed to set into concrete even after hours of remaining in the truck’s pipes. Meanwhile, Casey asserted that it was not possible for the volumetric trucks to produce such a “clump” or mix the concrete so poorly, but he did not offer any evidence to support these assertions. And although Sanchez texted that he would not charge Raitz for the Iredell project and that he left a bad finish on the slab, he explained that he made those statements out of desperation to convince Raitz to pay him for the Woodlands project and in an attempt to preserve a business relationship between them, and that the concrete mix was the cause of the defects in the slab. The jury was free to credit, weigh, believe, and disbelieve all, some, or none of the testimony and evidence presented. Gonzalez, 717 S.W.3d at 535 (citing 14 Golden Eagle Archery, Inc v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003)). Sanchez admitted fault in texts that he sent to Raitz but testified at trial that the admissions were a negotiation technique and were not true. Likewise, Sanchez and Rodriguez testified that the concrete mix was deficient and would not set properly, although Casey testified to the contrary because he claimed that his volumetric trucks were computer-operated and preprogrammed, and a bad mix would have triggered an automatic shutdown. Conflicting evidence such as this falls within the jury’s province to resolve, and therefore the jury’s findings on that point should not be disturbed. Id. (citing City of Keller, 168 S.W.3d at 807, 822, 827). We conclude that the evidence before us supports the jury’s finding that Sanchez did not breach the Iredell agreement, and that this evidence was not so weak or against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Id. (citing Pool, 715 S.W.2d at 635). Thus, because the evidence is factually sufficient to support the jury’s finding, the doctrine of substantial performance is not applicable to this case, and Sanchez bore no burden to establish the cost of remedial repairs for the Iredell slab. Further, because there is more than a scintilla of evidence to support the jury’s finding, we conclude that the evidence is legally sufficient as well. Mullins, 724 S.W.3d at 578–79. Accordingly, we overrule Raitz’s first issue. B. The Exclusion of Casey’s Testimony was not Error In its second issue, Raitz contends that the trial court abused its discretion when it erroneously excluded Casey’s testimony on the cost of remedial repairs on the grounds that expert testimony was required and Raitz did not designate an expert witness to testify on this subject. Even if the trial court’s decision to exclude Casey’s testimony—regarding the cost of repairs for the Iredell slab on the basis that Raitz did not designate Casey as an expert witness—was erroneous, and we do not hold that it was, any such error 15 was harmless. If a trial court abuses its discretion and erroneously admits or excludes evidence, we must determine whether the error “probably caused the rendition of an improper judgment.” TEX. R. APP. P. 44.1(a)(1); Campbell v. Hendershot Equip. Co., Inc., 717 S.W.3d 494, 515 (Tex. App.—Eastland 2025, pet. denied). We review the entire record to determine whether an error is harmful. Campbell, 717 S.W.3d at 515 (citing Gunn, 554 S.W.3d at 668–69). Whether an erroneous exclusion of evidence probably caused the rendition of an improper judgment is “a judgment call entrusted to the sound discretion [and] good sense of the reviewing court from an evaluation of the whole case.” City of Stephenville v. Belew, 692 S.W.3d 347, 361 (Tex. App.—Eastland 2024, pet. denied) (quoting First Emps. Ins. Co. v. Skinner, 646 S.W.2d 170, 172 (Tex. 1983)). Raitz argues that even if Casey’s testimony did not support a jury’s finding on damages, it would have shown that Sanchez breached the contract and Raitz did not. Raitz contends that this excluded evidence was pertinent to “a key issue that was properly part of Sanchez’s case in chief.” Casey testified during Raitz’s offer of proof that, based on his personal knowledge and perception of the jobsite after the pour, the Iredell slab was not finished correctly and required repairs by grinding and applying an overlay and an epoxy finish. However, Casey was permitted to present similar testimony to the jury—that, in his opinion, the concrete mix in the Iredell project was not defective and was not the cause of the slab’s defects. The remainder of Casey’s testimony during the offer of proof concerned the cost of remedial repairs and their reasonableness and necessity. That constituted evidence of damages, not liability, and the jury foreclosed any consideration of Raitz’s alleged damages when they found that Sanchez did not breach the Iredell agreement. See Mitchell v. Bank of Am., N.A., 156 S.W.3d 622, 627 (Tex. App.—Dallas 2004, pet. denied) (holding that because the jury’s finding of no liability was supported by sufficient evidence, the 16 exclusion of any evidence on the issue of damages was harmless because it could not have resulted in the rendition of an improper judgment). We conclude that any error in excluding Casey’s testimony was harmless. Accordingly, we overrule Raitz’s second issue. C. The Refusal to Submit Raitz’s Requested Jury Instruction was not Error In its third issue, Raitz argues that the trial court abused its discretion when it refused to submit Raitz’s requested jury instruction on the cost of repairs issue, again because, according to Raitz, the trial court failed to require Sanchez to prove up the costs of remedial damages under the “substantial performance” doctrine. As Sanchez points out, no evidence was presented to the jury on the reasonable and necessary cost of repairs. In this regard, it is error to submit a question for which there is no evidence. See Horton v. Kansas City S. Ry. Co., 692 S.W.3d 112, 137 (Tex. 2024) (citing Harris Cnty. v. Smith, 96 S.W.3d 230, 236 (Tex. 2002)); see also TEX. R. CIV. P. 278 (“The court shall submit the questions, instructions and definitions . . . which are raised by the written pleadings and the evidence.”). And again, even if the trial court erred, any error could not have resulted in the rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1); Mitchell, 156 S.W.3d at 627 (“It is well established in Texas that no recovery is allowed unless liability has been established. In the absence of liability, the question of damages becomes immaterial.” (citing Turner v. Lone Star Indus., Inc., 733 S.W.2d 242, 246 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.))); see also Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006) (observing that an error is harmless “when the findings of the jury in answer to other issues are sufficient to support the judgment” (quoting Boatload of Houston, Inc. v. Bailey, 609 S.W.2d 743, 750 (Tex. 1980))); City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995) (A jury question may be immaterial, and therefore the refusal of its submission is harmless, 17 “when its answer can be found elsewhere in the verdict or when its answer cannot alter the effect of the verdict.”). Here, the jury’s finding that Sanchez did not breach the Iredell agreement precluded any damage finding in favor of Raitz for the Iredell project and thus rendered Raitz’s proposed jury question immaterial. See Mitchell, 156 S.W.3d at 627; see also Shupe, 192 S.W.3d at 579; Alvarado, 897 S.W.2d at 752. Consequently, we conclude that the trial court did not err when it refused to submit Raitz’s proposed jury instruction. See TEX. R. APP. P. 44.1(a)(1). Accordingly, we overrule Appellant’s third issue. D. The Refusal to Grant a Pleading Amendment was not an Abuse of Discretion In its fourth issue, Raitz contends that the trial court abused its discretion when it denied Raitz’s motion for leave to amend its pleadings to specifically deny that Sanchez presented a demand to Raitz for the Iredell project under Chapter 38 of the Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 38.002(2) (West 2015). We review a trial court’s ruling on a motion for leave to file an amended pleading for an abuse of discretion. Lower Valley Water Dist. v. Danny Sander Constr., Inc., 657 S.W.3d 404, 408 (Tex. App.—El Paso 2022, no pet.). Under Rule 63 of the Texas Rules of Civil Procedure, a trial court must grant a party leave to amend its pleadings unless the party opposing the amendment presents evidence of surprise or prejudice, or the proposed amendment asserts a new cause of action or defense and is thus prejudicial on its face and the opposing party asserts a timely objection. Id. at 409 (citing Greenhalgh v. Service Lloyds Ins., Co., 787 S.W.2d 938, 939 (Tex. 1990)); see TEX. R. CIV. P. 63. “However, when surprise or prejudice is demonstrated, either through evidence presented by the objecting party or on the face of a pleading asserting a new cause of action or defense, then the decision to 18 grant or deny the motion lies within the sound discretion of the trial court.” Danny Sander Constr., 657 S.W.3d at 409 (citing Hardin v. Hardin, 597 S.W.2d 347, 349– 50 (Tex. 1980)). To recover attorney’s fees in a suit on a written contract, a plaintiff must plead and prove that the presentment of a contract claim was made to the opposing party, and the opposing party failed to tender performance. See CIV. PRAC. & REM. §§ 38.001–002; Sandberg v. STMicroelectronics, Inc., 600 S.W.3d 511, 532 (Tex. App.—Dallas 2020, pet. denied) (citing Jones v. Kelley, 614 S.W.2d 95, 100 (Tex. 1981)); Belew v. Rector, 202 S.W.3d 849, 856–57 (Tex. App.—Eastland 2006, no pet.). The claimant bears the burden of pleading and proving that he made a presentment of the claim to the opposing party. Tex. Black Iron, Inc. v. Arawak Energy Int’l Ltd., 566 S.W.3d 801, 824 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (citing Ellis v. Waldrop, 656 S.W.2d 902, 905 (Tex. 1983)). No particular form of presentment is required; it may be done orally or in writing and need not be done by a party’s counsel. See Belew, 202 S.W.3d at 857. Further, merely filing a breach-of-contract claim is insufficient. Id. However, if a plaintiff pleads that all conditions precedent have been met and the defendant fails to affirmatively deny presentment, the plaintiff is not obligated to produce specific evidence of presentment. Id. Although Raitz contends that its proposed amendment would have merely cured a pleading defect, the assertion of the failure to satisfy a condition precedent is an affirmative defense. See Danny Sander Constr., 657 S.W.3d at 408–10; Belew, 202 S.W.3d at 857. The assertion of a new defense is prejudicial on its face. 1 Danny 0F Sander Constr., 657 S.W.3d at 409 (citing Greenhalgh, 787 S.W.2d at 939); see The parties apparently argued this motion in chambers before the trial court denied it on the record. 1 Although the trial transcript does not specifically show that Sanchez objected, it is apparent that the motion was contested on prejudice grounds. 19 TEX. R. CIV. P. 63. Moreover, Sanchez alleged in his pleadings that all conditions precedent were satisfied, over three years before Raitz filed its request for a pleading amendment and asserted, for the first time, its failure-to-satisfy-conditions- precedent defense. We conclude that the trial court did not abuse its discretion when it denied Raitz’s motion for leave to amend its pleading. See Danny Sander Constr., 657 S.W.3d at 408–10; Belew, 202 S.W.3d at 857. Accordingly, we overrule Raitz’s fourth issue. E. The Evidence is Sufficient to Support the Attorney’s Fee Award In its fifth issue, Raitz contends that there is insufficient evidence to support the jury’s attorney’s fee award. Specifically, Raitz claims that the fee award requires a remand or remittitur because: (1) there was legally insufficient evidence presented that such a disproportionate fee shifting award was warranted; (2) evidence of the attorney’s fees should have be