Audio Visual Artistry v. Tanzer

403 S.W.3d 789 (2012)

Facts

Tanzer (D) contracted with Audio (P) for the installation of a 'smart home' system. P submitted a proposal for components, parts, and installation, totaling $78,567.1. The total price of was broken down as follows: Equipment: $56,375.00, Labor/Programming: $9,880.00, Misc. Parts: $5,660.00 and taxes of $6,652.13. At the time, P and D entered their contract, construction had just commenced on P's home. P was to install certain wiring and equipment during the construction process. Equipment installation and programming of the smart system did not begin in earnest until March 2006. P and his family moved into the home in April 2006. The original scope of work was changed, and P performed additional work. They decided to use an Escient music system in lieu of the Concierge music system, and Wi-Fi was added instead of radio frequency panels. Other changes included equipment for a media room and 5 additional pairs of speakers and an integration of the pool system, the alarm system, and the HVAC system with the Crestron control system. D eventually became unsatisfied and fired P.  D contends that, based upon P's statements, he thought that the installation, programming, and debugging of the 'smart home' system would take less than three months, D claims that, after fifteen months, he was still having significant problems with the functionality of the system. Both the original equipment and work and the additional work, equipment, and changes were set out in Invoice #3036. This Invoice shows a total project cost of $119,402.15, and reflects an outstanding balance of $43,824.55. D disputed this balance and the instant lawsuit ensued. After a second lightning strike to the house shut down the entire 'smart home' system, D then hired Marquis Home Solutions to make repairs. Marquis, testified that there were numerous problems with P's installation of the systems. Marquis charged D $67,587 for the repairs. D claims that the amount Marquis charged includes only the cost of repairs to the systems that P installed, and does not include the price of any upgrades. The court found that the agreement involved the sale of consumer goods governed by UCC. It reasoned by examination of the entire transaction and application of the 'predominant factor' test that this was simply an agreement for the sale and installation of electronic equipment. The labor and services provided were insignificant in comparison to the cost of equipment provided. D filed a motion for reconsideration which was denied. The trial court granted judgment in favor of P. The court found that the Escient system and the phone system never worked and were never accepted and gave D credit for them. D also got credit for items improperly charged. The court also found that the Marquis work was an upgrade and there was insufficient detail in that testimony to find any differently. D was not entitled to an offset for the Marquis work. The court found that HVAC integration was not included in P's original proposal, and P is entitled to the amount charged for this work. D failed to establish through his proof that P had any responsibility for the lightning strike, which damaged some of the components installed. P is also is entitled to the equipment rejected by D, which is in his possession. P was eventually awarded judgment in the amount of $35,580.55. D appealed. D argues that thrust of the contract is for services and not for the sale of goods such that common-law breach of contract principles apply.