Nadir N. Ali and Mumtaz Ali v. Flessner Enterprises, Inc.

ACCEPTED
FILED 13-15-00095-CV
THIRTEENTH COURT OF APPEALS
IN THE 13TH COURT OF APPEALS CORPUS CHRISTI, TEXAS
CORPUS CHRISTI - EDINBURG 6/30/2015 3:17:15 PM
CECILE FOY GSANGER
06/30/15 CLERK
CECILE FOY GSANGER, CLERK
NO. 13-15-00095-CV
BY cholloway
RECEIVED IN
13th COURT OF APPEALS
IN THE COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
FOR THE THIRTEENTH JUDICIAL DISTRICT
6/30/2015 3:17:15 PM
CORPUS CHRISTI, TEXAS CECILE FOY GSANGER
Clerk
_____________________________________________________
NADIR N. ALI and MUMTAZ ALI
Appellants
v.
FLESSNER ENTERPRISES, INC.
Appellee
_____________________________________________________
Appeal from Cause No. 13-03-22,628
In the District Court of DeWitt County, Texas; 135th Judicial District
_____________________________________________________
APPELLANTS’ BRIEF
_____________________________________________________
THE WERNER LAW GROUP
Leslie A. Werner
PO Box 247
Victoria, Texas 77902
361-578-7200
361-485-1949 fax
SBN 21190150
Attorney for Appellants
Nadir and Mumtaz Ali
ORAL ARGUMENT IS REQUESTED
INTERESTED PERSONS OR PARTIES
The following is a list of all parties to this appeal and the names and
addresses of those parties’ counsel.
Appellants
Nadir N. and Mumtaz Ali
Appellant’s Trial Counsel
Kenneth E. Kvinta
KENNETH E. KVINTA, P.C.
403 W. Grand Avenue
Yoakum, Texas 77995
Appellant’s Appellate Counsel
Leslie A. Werner
THE WERNER LAW GROUP
PO Box 247
Victoria, Texas 77902
Appellee
Flessner Enterprises, Inc.
Appellee’s Trial Counsel
Robert C. Lassmann
307 N. Gonzales
Cuero, Texas 77954
Appellant’s Appellate Counsel
Cynthia Shepard
PO Box 67
Cuero, Texas 77954
ii
TABLE OF CONTENTS
Interested Persons or Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv
Issues Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv
I. Procedural Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
III. Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
IV. Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Issue No. 1:
Claims for breach of a construction contract must be instituted
within four years of the date the work was substantially completed.
Where the great weight and preponderance of the evidence established
the last date the work was substantially completed was more than four
years prior to the date suit was filed, the trial court erred in entering judgment
for FEI.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
A. Standard of Review and Burden of Proof. . . . . . . . . . . . . . . . 11
B. FEI not Entitled to the Evidentiary Presumption
of a Suit on Sworn Account. . . . . . . . . . . . . . . . . . . . . . . . . . 12
C. Effect of Trial Court’s Findings of Fact Where
Prima Facie Right to Recovery is Defeated. . . . . . . . . . . . . . 12
D. The Statute of Limitations Barred FEI’s Claim. . . . . . . . . . . . 14
iii
1. FEI’s substantial completion
running of the statute of limitations on
March 16, 2009. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2. Demand for Payment does not Trigger the
Statute of Limitations. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
E. Conclusion to Issue No. 1.. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Issue No. 2:
In order to prevail on a breach of contract action, the agreement
must be in writing and signed by the person against whom liability
is sought. Where there was no evidence of a contract in writing,
signed by Ali, the trial court erred in entering judgment against them. . . . 18
A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
B. No Findings with Respect to the Statute of Frauds. . . . . . . . . 19
C. The Statute of Frauds Applies to Bar FEI’s
Ability to Recover Damages .. . . . . . . . . . . . . . . . . . . . . . . . . 19
1. No Contract in Writing. . . . . . . . . . . . . . . . . . . . . . . . . . 20
2. Oral Contract not Sufficiently Specific. . . . . . . . . . . . . . 22
a. Elements Necessary for Contract
Formation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
b. Testimony Established All Elements for
Contract Formation not Present. . . . . . . . . . . . . . 24
D. The Testimony Establishes Propositions Contrary
to the Court’s Findings and Conclusions . . . . . . . . . . . . . . . . 24
E. Conclusion to Issue No. 2.. . . . . . . . . . . . . . . . . . . . . . . . . . . 26
iv
Issue No. 3:
To be entitled to attorney’s fees there must be a statute or
contract authorizing the award of attorney’s fees and there must
be evidence to support the amount of attorney’s fees requested.
Where the record is devoid of any evidence to support the award of
attorney’s fees, the trial court erred in awarding FEI attorney’s fees
in the amount of $4,500.00. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
B. Law Relating to Attorney’s Fees. . . . . . . . . . . . . . . . . . . . . . . 28
C. The Court’s Findings and Conclusions are not
Supported by Legally Sufficient Evidence. . . . . . . . . . . . . . . . 29
1. Where Contract Claim Fails, Claim for
Attorney’s Fees Fails. . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2. There is no Evidence to Support Award
of Attorney’s Fees Even if the Contract was
Enforceable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
D. Conclusion to Issue No. 3.. . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Issue No. 4:
When requested to do so, a trial court shall file any additional or
amended findings and conclusions that are appropriate. Where
Ali requested additional or amended findings of fact and conclusions
of law to support their limitations defense, the trial court erred in failing
to sign same.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
A. The Law Related to Additional Findings. . . . . . . . . . . . . . . . . 32
B. Trial Court’s Findings and Conclusions did not
Address Ali’s Affirmative Defense of Limitations. . . . . . . . . . . 34
C. Ali’s Ability to Present Appeal Hindered by Trial
Court’s Failure to File Additional Findings and
Conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
v
D. Conclusion to Issue No. 4.. . . . . . . . . . . . . . . . . . . . . . . . . . . 35
V. Conclusion and Prayer.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Appendix
vi
INDEX OF AUTHORITIES
Cases
Adams v. H & H Meat Prods., 41 S.W.3d 762
(Tex. App.--Corpus Christi 2001, no pet.). . . . . . . . . . . . . . . . . . . . 13
Advantage Physical Therapy, Inc. v. Cruse, 165 S.W.3d 21
(Tex. App.--Houston [14th Dist.] 2005, no pet.). . . . . . . . . . . . . . . . 22
Allamon Tool Co. v. Derryberry, 2007 Tex. App. LEXIS 8858
(Tex. App.--Beaumont 2007, no pet.).. . . . . . . . . . . . . . . . . . . . . . . 21
Anderson v. Vinson Exploration, 832 S.W.2d 657
(Tex. App.--El Paso 1992, writ denied). . . . . . . . . . . . . . . . . . . . . . 16
Angelou v. African Overseas Union, 33 S.W.3d 269
(Tex. App.--Houston [14th Dist.] 2000, no pet.)... . . . . . . . . . . . . . . 23
Arthur Andersen & Co. v. Perry Equip. Corp.,
945 S.W.2d 812 (Tex. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 31
Assoc. Tel. Directory Publishers v. Five D's Publishing Co.,
849 S.W.2d 894 (Tex. App.--Austin 1993, no writ). . . . . . . . . . . . . . 32
Beal Bank, S.S.B. v. Schleider, 124 S.W.3d 640
(Tex. App.--Houston [14th Dist.] 2003, pet. denied). . . . . . . . . . . . . 24
Bennett v. Spectrum Constr., Inc., 2012 Tex. App. LEXIS 9629
(Tex. App.–Houston [1st Dist.] 2012, no pet.). . . . . . . . . . . . . . . . . . 19
Brockie v. Webb, 331 S.W.3d 135
(Tex. App.–Dallas 2010, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Buckeye Ret. Co., L.L.C. v. Bank of Am., N.A., 239 S.W.3d 394
(Tex. App.--Dallas 2007, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Catalina v. Blasdel, 881 S.W.2d 295 (Tex. 1994). . . . . . . . . . . . . . . . . . . 13
vii
Christus Health v. Quality Infusion Care, Inc., 359 S.W.3d 719
(Tex. App.--Houston [1st Dist.] 2011, no pet.). . . . . . . . . . . . . . . . . 12
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005). . . . . . . . . . . . . . . . 25
City of McAllen v. Ramirez, 2013 LEXIS 8887
(Tex. App.--Corpus Christi) vacated on other grounds,
2013 Tex. App. LEXIS 13785
(Tex. App.--Corpus Christi 2013, no pet.) . . . . . . . . . . . . . . . . . . . . 33
Cohen v. McCutchin, 565 S.W.2d 230 (Tex. 1978) . . . . . . . . . . . . . . . . . 21
Coward v. Gateway Nat'l Bank, 525 S.W.2d 857 (Tex. 1975) . . . . . . . . . 30
CraneTex, Inc. v. Precision Crane & Rigging of Houston, Inc.,
760 S.W.2d 298 (Tex. App.--Texarkana 1988, writ denied) . . . . . . 16
Croucher v. Croucher, 660 S.W.2d 55 (Tex. 1983). . . . . . . . . . . . . . . . . . 27
Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699 (1951). . . . . . . . . . . 22
Dow Chem. Co. v. Francis, 46 S.W.3d 237 (Tex. 2001). . . . . . . . . . . . . . 18
El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012). . . . . . . . . . . . . . . 31
Estate of Eberling v. Fair, 546 S.W.2d 329
(Tex. Civ. App.--Dallas 1976, writ ref'd n.r.e.). . . . . . . . . . . . . . . . . 20
Federal Sign v. Texas So. Univ., 951 S.W.2d 401 (Tex. 1997). . . . . . . . . 24
Ford Motor Co. v. Nowak, 638 S.W.2d 582
(Tex. App.–Corpus Christi 1982, writ ref’d n.r.e.). . . . . . . . . . . . . . . 11
Formosa Plastics Corp. USA v. Presidio Engr’s & Contractors, Inc.,
960 S.W.2d 41 (Tex. 1998) 27
Foreman v. Graham, 363 S.W.2d 371
(Tex. Civ. App.--Beaumont 1962, no writ). . . . . . . . . . . . . . . . . . . . 17
viii
Fort Worth Indep. Sch. Dist. v. City of Fort Worth,
22 S.W.3d 831, 846 (Tex. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Gaede v. SK Invs., Inc., 38 S.W.3d 753
(Tex. App.--Houston [14th Dist.] 2001, pet. denied) . . . . . . . . . . . . 22
Garrod Invs., Inc. v. Schlegel, 139 S.W.3d 759
(Tex. App.—Corpus Christi 2004, no pet.) . . . . . . . . . . . . . . . . 29, 31
Gen. Elec. Capital Corp. v. ICO, Inc., 230 S.W.3d 702
(Tex. App.--Houston [14th Dist.] 2007, pet. denied). . . . . . . . . . . . . 33
Geotech Energy Corp. v. Gulf States Telecom. and Info. Sys., Inc.,
788 S.W.2d 386 (Tex. App.--Houston [14th Dist.] 1990, no writ). . . 16
Gerdes v. Mustang Exploration Co., 666 S.W.2d 640
(Tex. App.--Corpus Christi 1984, no writ. . . . . . . . . . . . . . . . . . . . . 24
Godde v. Wood, 509 S.W.2d 435
(Tex. Civ. App.–Corpus Christi 1974, writ ref’d n.r.e.). . . . . 15, 17, 35
Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91 (Tex 1999). . . . . . . . . . . . 27
Hubble v. Lone Star Contracting Corp., 883 S.W.2d 379
(Tex. App.–Fort Worth 1994, pet. denied). . . . . . . . . . . . . . . . . . . . 35
In re King’s Estate, 244 SW.2d 660, 661 (Tex. 1951).. . . . . . . . . . . . . . . 11
In Re Lesikar, 285 S.W.3d 3d 577
(Tex. App.–Houston [14th Dist] 2009, no pet.).. . . . . . . . . . . . . . . . . 27
In re R.D.Y., 51 S.W.3d 314
(Tex. App.–Houston [1st Dist.] 2001, pet. denied).. . . . . . . . . . . . . . 35
In the Interest of Striegler, 915 S.W.2d 629
(Tex. App.--Amarillo 1996, writ denied). . . . . . . . . . . . . . . . . . . . . . 30
ix
Integrated of Amarillo, Inc. v. Pinkston-Hollar Constr. Servs.,
2013 Tex. App. LEXIS 4216
(Tex. App.--Amarillo Apr. 2, 2013, pet. filed). . . . . . . . . . . . . . . 15, 34
Labor Ready Central L.P. v. Gonzalez, 64 S.W.3d 519
(Tex. App.--Corpus Christi 2001, no pet.). . . . . . . . . . . . . . . . . . . . 23
Levin Law Group, P.C. v. Sigmon, 2010 Tex. App. LEXIS 352
(Tex. App.--Houston [14th Dist.] 2010, pet. filed) . . . . . . . . . . . . . . 23
Loomis v. Republic Nat'l Bank, 653 S.W.2d 75
(Tex. App.--Dallas 1983, writ ref'd n.r.e.). . . . . . . . . . . . . . . . . . . . . 17
Luna v. Luna, 2011 Tex. App. LEXIS 3267,
App.--Corpus Christi 2011, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . 23
MBM Fin. Corp. v. The Woodlands Operating Co.,
292 S.W.3d 660 (Tex. 2009) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
McDonald v. Fox, 2012 Tex. App. LEXIS 9518
(Tex. App. Corpus Christi 2012, no pet.). . . . . . . . . . . . . . . . . . 29, 31
McNeil v. Pierce, 688 S.W.2d 209
(Tex. App.-El Paso 1985, writ ref'd n.r.e.). . . . . . . . . . . . . . . . . . . . 12
Meru v. Huerta, 136 S.W.3d 383
(Tex. App.--Corpus Christi 2004, no pet.). . . . . . . . . . . . . . . . . . . . 19
Moki Mac River Expeditions v. Drugg,
221 S.W.3d 569 (Tex. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Moreno v. Sterling Drug, 787 S.W.2d 348 (Tex. 1990). . . . . . . . . . . . . . . 14
Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826 (Tex. 1990). . . . . . 14
Ocean Transp. v. Greycas, Inc., 878 S.W.2d 256, 267
(Tex. App.--Corpus Christi 1994, writ denied). . . . . . . . . . . . . . . . . 14
x
O'Farrill Avila v. Gonzalez, 974 S.W.2d 237
(Tex. App.--San Antonio 1998, pet. denied).. . . . . . . . . . . . . . . . . . 20
Ortiz v. Jones, 917 S.W.2d 770 (Tex. 1996) . . . . . . . . . . . . . . . . . . . . . . 13
Pakdimounivong v. City of Arlington, 219 S.W.3d 401
(Tex. App.–Fort Worth 2006, pet. denied). . . . . . . . . . . . . . . . . . . . 35
Parker Drilling Co. v. Romfor Supply Co., 316 S.W.3d 68
(Tex. App.-- Houston [14th Dist.] 2010, pet. denied). . . . . . . . . . . . 23
PennWell Corp. v. Ken Associates, Inc., 123 S.W.3d 756
(Tex. App.—Houston [14th Dist] 2003, pet. denied).. . . . . . . . . . . . 12
Powers v. Adams, 2 S.W.3d 496
(Tex. App.--Houston [14th Dist.] 1999, no pet.). . . . . . . . . . . . . 12, 14
Rafferty v. Finstad, 903 S.W.2d 374
(Tex. App.--Houston [1st Dist.] 1995, writ denied) . . . . . . . . . . . . . 33
Rich v. Olah, 274 S.W.3d 878
(Tex. App.–Dallas 2008, no pet.) . . . . . . . . . . . . . . . . . . . . 13, 32, 33
Rizk v. Fin. Guard. Ins. Agency, Inc., 584 S.W.2d 860 (Tex. 1979). . 12, 14
SDN, Ltd. v. JV Rd., L.P., 2010 Tex. App. LEXIS 2206
(Tex. App.--Austin 2010, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Searcy v. DDA, Inc., 201 S.W.3d 319
(Tex. App.--Dallas 2006, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Ski River Development, Inc. v. McCalla, 167 S.W.3d 121
(Tex. App.--Waco 2005, pet. denied). . . . . . . . . . . . . . . . . . . . . 20, 22
Southwest Grain Co. v. Pilgrim's Pride S.A. de C.V.,
2010 LEXIS 5014
(Tex. App.--Corpus Christi 2010, pet. denied). . . . . . . . . . . . . . 29, 31
State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430 (Tex. 1995). . . 29, 30
xi
Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1 (Tex. 1991). . . . . . . . . 28
T. O. Stanley Boot Co. v. Bank of El Paso,
847 S.W.2d 218 (Tex. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006). . . . . . 26
Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241
(Tex. App.--Houston [14th Dist.] 1999). . . . . . . . . . . . . . . . . . . 13, 33
Wayne v. A.V.A. Vending, Inc., 52 S.W.3d 412
(Tex. App.--Corpus Christi 2001, pet. denied). . . . . . . . . . . . . . . . . 27
Wibbenmeyer v. TechTerra Communs., Inc., 2010 LEXIS 2203
(Tex. App.--Austin 2010, pet. denied). . . . . . . . . . . . . . . . . . . . . . . 27
Winters v. Arm Refining Co., Inc., 830 S.W.2d 737
(Tex. App.--Corpus Christi 1992, writ denied). . . . . . . . . . . . . . . . . 13
Woods v. William M. Mercer, Inc., 769 S.W.2d 515 (Tex. 1988). . . . . . . . 12
Rules and Statutes
TEX. BUS. & COM. CODE § 2.201(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
TEX. CIV. PRAC. & REM. CODE ANN. § 16.004(a) (3). . . . . . . . . . . . . . . 14, 34
TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8) . . . . . . . . . . . . . . . . . 30, 31
TEX. CIV. PRAC. & REM. CODE ANN. § 38.004. . . . . . . . . . . . . . . . . . . . . . . 30
TEX. R. APP. P. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
TEX. R. APP. P. 43.2.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
TEX. R. CIV. P. 94. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
TEX. R. CIV. P. 185. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 25
xii
TEX. R. CIV. P. 298.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Secondary Authority
BLACK'S LAW DICTIONARY 1510 (8th ed. 2004). . . . . . . . . . . . . . . . . . . . . . 20
RESTATEMENT (SECOND) OF CONTRACTS § 33(1) (1981). . . . . . . . . . . . . . . 22
RESTATEMENT (SECOND) OF CONTRACTS § 33(2) (1981). . . . . . . . . . . . . . . 22
xiii
STATEMENT OF THE CASE
Nature of the Case: This is an appeal from a bench trial on a
suit on sworn account/breach of contract
claim. [CR 76]
Course of the Proceedings: Plaintiff filed its original petition [CR 4]
and thereafter, Defendants moved for
summary judgment based on limitations.
[CR 33] After conducting a hearing on the
motion, the trial court denied same [CR
69] and the case proceeded to trial.
The Trial Court’s Disposition: On October 17, 2014, the trial court
conducted an evidentiary hearing, and
entered judgment in favor of Plaintiff on
December 3, 2014. [CR 70]
xiv
ISSUES PRESENTED
1. Claims for breach of a construction contract must be instituted within
four years of the date the work was substantially completed. Where the
great weight and preponderance of the evidence established the date
the work was substantially completed to be more than four years prior to the
date suit was filed, the trial court erred in entering judgment for FEI.
(Germane to FF # 2, 3, 4, 5, and 6 and CL # 1 and Requested Amended FF # 1, 3,
4, CL 1, 2 and 3)
2. In order to prevail on a breach of contract action, the agreement must be in writing
and signed by the person against whom liability is sought. Where there was no
evidence of a contract in writing, signed by Ali, the trial court erred in entering
judgment against them. .
(Germane to FF # 2, 3, 4, 5, and 6 and CL # 1 )
3. To be entitled to attorney’s fees there must be a statute or contract
authorizing the award of attorney’s fees and there must be evidence to
support the amount of attorney’s fees requested. Where the record is
devoid of any evidence to support the award of attorney’s fees, the trial
court erred in awarding FEI attorney’s fees in the amount of $4,500.00
(Germane to Requested Amended FF # 1, 3, 4, CL 1, 2 and 3)
4. When requested to do so, a trial court shall file any additional or
amended findings and conclusions that are appropriate. Where Ali
timely requested additional or amended findings of fact and conclusions
of law to support their limitations defense, the trial court erred in failing
to sign same.
(Germane to Requested Additional Findings and Conclusions [Supp.
CR 6-7)
xv
NO. 13-15-00095-CV
IN THE COURT OF APPEALS
FOR THE THIRTEENTH JUDICIAL DISTRICT
CORPUS CHRISTI, TEXAS
_____________________________________________________
NADIR N. ALI and MUMTAZ ALI
Appellants
v.
FLESSNER ENTERPRISES, INC.
Appellee
_____________________________________________________
Appeal from Cause No. 13-03-22,628
In the District Court of DeWitt County, Texas; 135th Judicial District
_____________________________________________________
APPELLANTS’ BRIEF
_____________________________________________________
TO THE HONORABLE JUSTICES OF SAID COURT:
COME NOW the Appellants, Nadir N. Ali and Mumtaz Ali (collectively
referred to as “Ali,”) and pursuant to the authority of TEX. R. APP. P. 38, file
their Appellants’ Brief, respectfully showing the Court the trial court erred in
entering judgment in favor of Appellee Flessner Enterprises, Inc. (“FEI”).
I. PROCEDURAL BACKGROUND
This is a breach of contract/suit on sworn account case filed on March
28, 2013 by FEI against Ali for electrical work performed by FEI on a building
owned by Ali [CR 2]. According to FEI’s verified Original Petition, the last date
FEI performed work for Ali was March 16, 2009. [CR 15]
Ali filed an Original Answer [CR 30] asserting a general denial, a verified
denial of the claim, and the affirmative defenses of limitations, laches and
statute of frauds. Ali filed a motion for summary judgment, asserting the four-
year statute of limitations barred FEI’s claim. [CR 33-34] FEI filed a response,
claiming the last date of services provided to Ali fell within the four-year
limitations period. [CR 63]
The trial court denied Ali’s motion for summary judgment [CR 69] and
the case proceeded to trial. After the conclusion of testimony, the court
entered judgment on December 3, 2014 in favor of FEI in the amount of
$145,543.37, and awarded attorney’s fees in the amount of $4,500. [CR 70]
Ali timely filed a request for findings of fact and conclusions of law. [CR
72] When same were not signed, Ali filed a Notice of Past Due Findings of
Fact and Conclusions of Law. [CR 74] The findings of fact and conclusions of
law were signed on February 6, 2015. [Supp. CR 4]
2
TEX. R. CIV. P. 298 requires that any additional or amended findings of
fact and conclusions of law shall be filed within ten days of the date the trial
court filed the original findings of fact and conclusions of law. Because the
filed findings and conclusions did not address any of the affirmative defenses
pled and proved by Ali, Ali prepared and timely1 filed a Request for Additional
Findings of Fact and Conclusions of Law and attached proposed findings.
[Supp. CR 6, 8] The only objection raised by FEI to the requested additional
findings and conclusions addressed the date services were last provided by
FEI to Ali. [Supp. CR 10]
Ali filed their Notice of Appeal on February 19, 2015. [CR 76]
II. STATEMENT OF FACTS
Rodney Flessner (“Flessner”) is the owner of FEI. (RR 6)2 In 2009 and
prior thereto, Flessner had provided electrical services and goods to Ali at
FasTrak Express. (RR 6) Flessner stated that on March 30, 2009, he provided
a bill to Ali for the electrical work done at FasTrak. (RR 7) (Pl. Ex. 1)[CR 40-
62] The bill contained a summary on page one, followed by invoices showing
the hours worked, by whom, and what materials were used on the job. (RR
7-8)
1
See Request for Additional Findings of Fact and Conclusions Law [Supp. CR 8, fn
1] (Apx. Tab 3)
2
All “RR” record references are to volume 2 of 3 of the reporter’s record.
3
Flessner stated he had kept a record of the work as the job progressed,
that this is done in the normal course of his business, and the items on the
invoices reflect the goods and services that were rendered to Ali at the
FasTrak store. (RR 8) He further stated the account was just and true and
that all offsets and payments made had been credited. (RR 9) Flessner kept
a systematic record of the time and materials and that such time and
materials were reflected in Plaintiff’s Exhibit 1. (RR 17)
Pursuant to the invoices, materials totaled $50,045.64; (RR 9) labor
costs were $95,920.25; sales tax equaled $12,042.19. (RR 10) The total
amount of the bill was $145,543.37. (RR 10)
Flessner confirmed the last date billed for labor was March 16, 2009.
(RR 11) Flessner hedged that date by stating he performed other services,
such as warranty work and “punch list things” through June of 2009. (RR 11)
However, any worked performed by FEI past March 16, 2009 was not charged
to Ali. (RR 11)
Plaintiff’s Exhibit 2, admitted over Ali’s objection, (RR 30) is a flashdrive
containing 62 pictures. When asked what date the photographs were taken,
Flessner stated, “if I have to guess, sir, educated guess, I would say probably
the latter part of 2006.” (RR 30)
4
Prior to the March 30, 2009 bill, Flessner had previously sent Ali a bill
on February 25, 2007 in the amount of $7,535.29. [CR 41]3 This bill was paid.
(RR 33) No other bill was generated until the March 30, 2009 bill.4 (RR 3) Also
part of Pl. Ex. 1 is the “time sheet for Fastrak Express – Daily Log.” [CR 42,
44-62] Flessner did not prepare the entries as they occurred. Instead, he
prepared the entries at the end of the job, when the work was completed; the
entries were all made on the same day. (RR 36)
Flessner did not prepare a written estimate of the work to be performed;
there was no written contract. (RR 38) It was a “handshake” deal. (RR 38)
Although Flessner stated he told Ali labor for the project would run around
$3,000 per week, (RR 43) a price for the contract as a whole was not
discussed. (RR 38)
With respect to the “parts” portion of the invoice, Flessner admitted
there were no dates on the invoice referencing when the parts were used.
(RR 41) The last day of work performed, as noted on the invoice, was March
16, 2009. [CR 48] He further admitted that FEI never sent Ali a demand letter.
(RR 47)
3
See Additional Findings of Fact, No. 3. [Supp. CR 6]
4
See Additional Findings of Fact, No. 2. [Supp. CR 6]
5
FEI rested its case and Nadir Ali was called to testify. He owned the
FasTrak Express store where FEI performed the work in question for about
three years. (RR 49) After he had purchased the store, Ali hired FEI to
perform electrical work such as redoing the wiring. (RR 49) This electrical
work was performed in conjunction with a complete overhaul of the store
performed by other trades people. (RR 49-50)
FEI had previously provided electrical services to Ali in Port Lavaca and
in Cuero. They had disputes regarding payment on those jobs as well, and
FEI filed suit against Ali. Ali believed FEI had overcharged him. Ultimately,
a settlement was reached. (RR 50) Knowing their previous history, Ali and
Flessner discussed the price FEI was going to charge him. (RR 50) Flessner
told Ali the price would be between $40,000-$45,000. (RR 51) This was the
price for the complete job – labor and materials. (RR 51) When Ali questioned
the amount, Flessner stated it was the highest amount that would be charged,
but it could be less. (RR 51) Ali confirmed Flessner’s testimony their
agreement was not reduced to writing. (RR 51)
Ali came to look at the progress of the work on the store at least four
times a week. The scope of the project never changed and Ali stated he
never asked FEI to make additions or redo anything that had been previously
done. (RR 55-56; 64-66) Ali did question Flessner as to why the project was
6
taking so long. Every time Ali came into town he would go by the store and
would not see anyone working. Contrary to the entries made by Flessner on
the work log, Ali testified he never saw anybody working on a Saturday or
Sunday. (RR 56-57)
When questioned about FEI’s billing, Ali stated he never saw the
February 25, 2007 bill; he only saw the final bill. (RR 52) Ali said that if
Flessner had given the bill to an employee of the store, the employee would
have certainly given it to Ali. (RR 53) With respect to Flessner’s statement
that he had faxed a copy of the bill to Ali at Ali’s other convenience store, the
Get N Go in Cuero, Ali had already sold that store in 2007, so he would not
have received a fax from FEI in March or April of 2009. (RR 54) Ali stated he
never saw the 27-page invoice of parts and materials until he was served with
the lawsuit. (RR 57)
After the work was performed, but before suit was filed, Ali met Flessner
in 2012 on the street in Cuero; Flessner had seen Ali and stopped him to
discuss the bill. (RR 55) Ali questioned him about the size of the bill. Flessner
responded that the account could be settled on the side, without the
involvement of attorneys and Ali could make payments. (RR 55)
Prior to the work being completed, Ali paid FEI $20,000 on the project
– $5,000 each on July 20, 2007; August 3, 2007; January 31, 2008; and
7
February 25, 2008. (RR 57-58) Ali paid this money without receiving an
invoice from FEI because Flessner had asked him for money to make his loan
payment and because Flessner had quoted him $40,000-$45,000 for the job.
Ali did not mind paying half of the quoted price so that FEI could finish up the
job – it had taken so long already. (RR 58) Ali paid Flessner in person, by
check, each time. Thereafter, Flessner never asked Ali for more money. (RR
58)
The store finally opened August 9, 2008. (RR 59) About four months
later, Ali went to Flessner to ask what was the final bill. Flessner told him he
had not finished the paperwork, but when it was completed he would bring it
to Ali. At that time, Ali felt the most he would owe FEI was another $25,000.
(RR 59)
Ali denied that he and Flessner had a deal for Ali to pay $3,000 per
week for labor. (RR 59; 66) Nor did he have an arrangement to pay Flessner
or any of FEI’s employees on an hourly basis. (RR 59) It was Ali’s
understanding that the job was a flat fee – no more than $45,000. (RR 60) Ali
denied that Flessner ever told him the bill was already $120,000 in 2008. (RR
67) Until Ali received the final bill, he had no idea the bill had quadrupled from
the original quote. (RR 69)
8
When Ali reviewed the timesheet prepared by Flessner showing the
dates and times for labor, he questioned the accuracy of the document. He
stated that when he would come in from Austin (at least four times per week),
he never saw people working at the store at 6:30 or 7:00 in the morning.
Sometimes someone would show up at 10:00 a.m. and then disappear after
lunch. (RR 61) No one was ever there on a Saturday or Sunday. He also
questioned the entries where Flessner stated an employee had worked
eleven hours straight without a break. This occurred on more than one
occasion. (RR 62)
FEI called Flessner in rebuttal. He denied he ever quoted Ali a price of
not more than $45,000. (RR 71-72) Flessner further contradicted Ali’s
testimony that there were no changes made to work already performed. (RR
73-74) Flessner did concede, again, that there was no contract for the work
performed – “We had a handshake deal.” (RR 75) Flessner also stated: “I
never spoke of a dollar amount period with Mr. Ali.” (RR 72)
Ali was also called in rebuttal. He stated he specifically recalled the
conversation with Flessner wherein Flessner stated he would charge no more
than $45,000 and that he “would be reasonable” with Ali. (RR 76)
III. SUMMARY OF THE ARGUMENT
The trial court erred in granting judgment in favor of FEI for three
9
reasons. First, the great weight and preponderance of the evidence
established that FEI filed suit against Ali more than four years after the last
date the project was substantially completed. Second, there was no evidence
of a written contract, signed by Ali, that bound him to pay FEI for any
materials or services. Third, without a valid contract, the award of attorney’s
fees was in error.
At Ali’s request, the court signed findings of fact and conclusions of law.
[Supp. CR 4] Because none of the findings addressed Ali’s affirmative
defenses, Ali requested additional findings of fact and conclusions of law,
[Supp. CR 8] and provided the court with proposed additional findings and
conclusions. [Supp. CR 6] The trial court failed to sign the additional findings
and conclusions. It was error for the court not to do so because the additional
findings and conclusions would have resulted in a different judgment.
IV. ARGUMENT AND AUTHORITIES
Ali presents the Court with the following issues, arguments and
authorities in support of their claim the trial court’s judgment should be
reversed and rendered.
Issue No. 1:
Claims for breach of a construction contract must be instituted within
four years of the date the work was substantially completed. Where the
great weight and preponderance of the evidence established the last
date the work was substantially completed was more than four years
10
prior to the date suit was filed, the trial court erred in entering judgment
for FEI.
(Germane to FF # 2, 3, 4, 5 and 6 and CL #1; Proposed Additional FF # 1, 2,
3, and 4 and CL # 1, 2 and 3)
The presented issue can be resolved by answering a single question –
When did FEI’s cause of action against Ali accrue for limitation purposes?
The answer is provided by FEI’s invoice and Flessner’s own testimony –
March 16, 2009.
A. STANDARD OF REVIEW AND BURDEN OF PROOF
In reviewing an issue asserting that a finding is against the great weight
and preponderance of the evidence, both the evidence that tends to prove the
existence of a vital fact, as well as evidence that tends to disprove its
existence, is considered. Ford Motor Co. v. Nowak, 638 S.W.2d 582, 585
(Tex. App.–Corpus Christi 1982, writ ref’d n.r.e.). If a court’s finding is so
contrary to the great weight and preponderance of the evidence as to be
manifestly unjust, the point should be sustained, regardless of whether there
is some evidence to support it. In re King’s Estate, 244 SW.2d 660, 661
(Tex. 1951).
The statute of limitations is an affirmative defense. TEX. R. CIV. P. 94.
As such, Ali bore the initial burden to plead, prove, and secure findings to
sustain their plea of limitations. Woods v. William M. Mercer, Inc., 769
11
S.W.2d 515, 517 (Tex. 1988); Christus Health v. Quality Infusion Care,
Inc., 359 S.W.3d 719, 722 (Tex. App.--Houston [1st Dist.] 2011, no pet.).
B. FEI NOT ENTITLED TO THE EVIDENTIARY PRESUMPTION OF A SUIT ON
SWORN ACCOUNT
Although not referencing the rule, it is uncontroverted that FEI filed its
complaint against Ali based on a suit on sworn account under TEX. R. CIV. P.
185. "Rule 185 is not a rule of substantive law, but is a rule of procedure with
regard to evidence necessary to establish a prima facie right of recovery. Rizk
v. Financial Guardian Ins. Agency, Inc., 584 S.W.2d 860, 862 (Tex. 1979);
McNeil v. Pierce, 688 S.W.2d 209, 210 (Tex. App.-El Paso 1985, writ ref'd
n.r.e.). Indeed, Rule 185 is described as "a rule of evidence only, which . . .
allows the plaintiff to avoid the necessity of proving the correctness of the
account." PennWell Corp. v. Ken Associates, Inc., 123 S.W.3d 756 (Tex.
App.—Houston [14th Dist] 2003, pet. denied).
As applied to this case, because Ali filed a sworn denial of FEI’s claim,
"the evidentiary effect of the itemized account is destroyed and [FEI] is forced
to put on proof of its claim." Rizk, 584 S.W.2d at 862; Powers v. Adams, 2
S.W.3d 496, 498 (Tex. App.--Houston [14th Dist.] 1999, no pet.). Boiled down
to its essence, FEI’s claim is basically one for breach of an oral contract.
C. EFFECT OF TRIAL COURT’S FINDINGS OF FACT WHERE PRIMA FACIE
RIGHT TO RECOVERY IS DEFEATED
12
Findings of fact entered in a case tried to a court are of the same force
and dignity as a jury's verdict on jury questions. Catalina v. Blasdel, 881
S.W.2d 295, 297 (Tex. 1994); Adams v. H & H Meat Prods., 41 S.W.3d 762,
769 (Tex. App.--Corpus Christi 2001, no pet.). This Court applies the same
standards in reviewing the legal and factual sufficiency of the evidence
supporting the trial court's fact findings as it does when reviewing the legal
and factual sufficiency of the evidence supporting a jury's answer to a jury
question. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam);
Winters v. Arm Refining Co., Inc., 830 S.W.2d 737, 739 (Tex. App.--Corpus
Christi 1992, writ denied). Specifically, the Court will indulge every reasonable
presumption in favor of the findings and judgment of the trial court, and no
presumption will be indulged against the validity of the judgment. Rich v.
Olah, 274 S.W.3d 878, 883-884 (Tex. App.–Dallas 2008, no pet.) (citing
Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 252 (Tex.
App.--Houston [14th Dist.] 1999)).
The problem in this case is that the trial court’s FF # 2-6 and CL # 1 only
confirmed that FEI had properly pled the elements necessary to establish a
suit on sworn account, thereby requiring Ali to file a sworn denial, which he
did. [CR 30] Applying the holdings of Rizk and Powers, supra, the
evidentiary value of pleading the sworn account elements was negated by
13
Ali’s sworn denial. Thus, the trial court’s findings #2-6 are irrelevant.
Ali’s requested Additional Findings of Fact and Conclusions of Law are
relevant and should have been signed by the trial court. Specifically, FF #3:
“Plaintiff last provided materials for use on and installation in Defendants’
property no later than February 25, 2007.”; FF #4: “Plaintiff last provided labor
in relation to the installation of the materials no later than March 16, 2009.”;
and FF #1: “Plaintiff filed suit against Defendants on March 28, 2013.” [Supp.
CR 6]
D. THE STATUTE OF LIMITATIONS BARRED FEI’S CLAIM
The Texas Civil Practice and Remedies Code addresses when a plaintiff
must bring suit for various causes of action. It provides “A person must bring
suit on the following actions not later than four years after the day the cause
of action accrues [for] debt.” TEX. CIV. PRAC. & REM. CODE ANN. § 16.004(a)
(3). The question of when a cause of action accrues is a question of law for
the court to decide. Moreno v. Sterling Drug, 787 S.W.2d 348, 351 (Tex.
1990). A cause of action generally accrues at the time when facts come into
existence which authorize a claimant to seek a judicial remedy. Murray v.
San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990); Ocean
Transp. v. Greycas, Inc., 878 S.W.2d 256, 267 (Tex. App.--Corpus Christi
1994, writ denied).
14
Typically, construction is performed under a continuing contract. In this
type of contract, the performance contemplated and payment for same is
divided into several parts, or where the work is continuous and indivisible, the
payment for work is made in installments as the work is performed. Godde v.
Wood, 509 S.W.2d 435, 441 (Tex. Civ. App.–Corpus Christi 1974, writ ref’d
n.r.e.). Limitations begins to run on a continuing contract at the earlier of the
following: (1) when the work is completed; (2) when the contract is terminated
in accordance with its terms; or (3) when the contract is anticipatorily
repudiated by one party and this repudiation is adopted by the other party.
Integrated of Amarillo, Inc. v. Pinkston-Hollar Constr. Servs., 2013 Tex.
App. LEXIS 4216, 5-6 (Tex. App.--Amarillo Apr. 2, 2013, pet. filed); Godde,
509 S.W.2d at 441.
The question then becomes, when was the work completed so as to
trigger the running of statute of limitations?
1. FEI’s substantial completion triggered the running of
the statute of limitations on March 16, 2009
FEI will undoubtedly argue that it provided services to Ali up until June
2009 and that its Original Petition, filed on March 28, 2013 [CR 4] is therefore
timely. (See Objection to Requested Additional Findings of Fact and
Conclusions of Law [Supp. CR 10]) However, Flessner’s own testimony, as
15
well as the documentary evidence, established that the work at FasTrak was
substantially completed on March 16, 2009.
"Substantial performance" means that the essential elements of a
contract have been performed and is the legal equivalent to full performance.
Geotech Energy Corporation v. Gulf States Telecommunications and
Information Sys., Inc., 788 S.W.2d 386, 390 (Tex. App.--Houston [14th Dist.]
1990, no writ); CraneTex, Inc. v. Precision Crane & Rigging of Houston,
Inc., 760 S.W.2d 298, 302 (Tex. App.--Texarkana 1988, writ denied) (cited by
Anderson v. Vinson Exploration, 832 S.W.2d 657, 666 (Tex. App.--El Paso
1992, writ denied).
Flessner admitted the last date billed for labor was March 16, 2009. (RR
11) (Pl. Ex. 1) Flessner then equivocated, claiming he performed other
services, such as warranty work and “punch list things” through June of 2009.
(RR 11) However, any work performed past March 16, 2009 was at no
additional charge. (RR 11)
A review of Pl. Ex. 1 (also provided in the Clerk’s Record) shows that
the date services were last provided by FEI was “3-16-09.” [CR 48] With
respect to the parts and/or materials used, Flessner admitted there were no
dates on the invoice referencing when the parts were used. (RR 41)
The foregoing establishes that FEI substantially completed the work for
16
Ali on or before March 16, 2009. It was at this time that its right to be paid by
Ali occurred and the statute of limitations began to accrue. As such, FEI was
required to file suit on or before March 16, 2013. It did not do so and its claim
was barred by limitations.
2. Demand for Payment does not Trigger the Statute of
Limitations
FEI might also argue that limitations did not begin to run until FEI made
a demand for payment upon Ali by sending him a bill on March 30, 2009. The
trial court made no finding of fact or conclusion of law indicating demand was
a condition precedent to FEI’s ability to sue or an integral part of its cause of
action. Consequently, demand was unnecessary for the statute to begin
running. See Loomis v. Republic Nat'l Bank, 653 S.W.2d 75, 77 (Tex.
App.--Dallas 1983, writ ref'd n.r.e.); Godde, 509 S.W.2d at 443; Foreman v.
Graham, 363 S.W.2d 371, 372 (Tex. Civ. App.--Beaumont 1962, no writ).
Moreover, Flessner admitted that FEI never sent Ali a demand letter. (RR 47)
E. CONCLUSION TO ISSUE NO. 1
The trial court erred in entering judgment against Ali because FEI’s
claim was barred by the applicable four-year statute of limitations. The
evidence was uncontroverted that FEI’s work for Ali at the FasTrak was
substantially completed on March 16, 2009, and it did not file suit until March
17
28, 2009, almost two weeks after the statute of limitations had expired.
Ali asks the Court to sustain their first issue, reverse the judgment of the
trial court and render judgment that FEI take nothing on its claim.
Issue No. 2:
In order to prevail on a breach of contract action, the agreement must
be in writing and signed by the person against whom liability is sought.
Where there was no evidence of a contract in writing, signed by Ali, the
trial court erred in entering judgment against them.
(Germane to FF # 2, 3, 4, 5 and 6 and CL #1)
The second reason the trial court erred in entering the complained of
judgment is that the agreement violated the statute of frauds, TEX. BUS. &
COM. CODE ANN. § 2.201(a), and the parties’ oral agreement was not specific
enough to be enforceable.
A. STANDARD OF REVIEW
When an appellant complains of the legal sufficiency of the evidence
supporting an adverse finding on a matter on which the appellant had the
burden of proof, it must show the evidence establishes, as a matter of law, all
vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237,
241 (Tex. 2001). In reviewing a "matter of law" challenge, the Court first
examines the record for evidence supporting the finding, and then examines
the entire record to determine if the contrary proposition is established as a
matter of law. Id. The issue is sustained only if the contrary proposition is
18
conclusively established. Id. In this case, there is no evidence to support an
implied finding of a contract in writing and the record establishes the contrary
position.
B. NO FINDINGS WITH RESPECT TO THE STATUTE OF FRAUDS
Neither party requested findings of fact with respect to the application
of the statute of frauds. As such, this Court infers all facts necessary to
support the judgment if they are supported by the evidence. See Moki Mac
River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007). Bennett v.
Spectrum Constr., Inc., 2012 Tex. App. LEXIS 9629, *2-3 (Tex.
App.–Houston [1st Dist.] 2012, no pet.). The implied finding in this case is that
there was a written contract or agreement between the parties signed by Ali.
C. THE STATUTE OF FRAUDS APPLIES TO BAR FEI’S ABILITY TO
RECOVER DAMAGES
The Texas Business and Commerce Code provides:
Except as otherwise provided in this section a contract for the
sale of goods for the price of $ 500 or more is not enforceable by
way of action or defense unless there is some writing sufficient to
indicate that a contract for sale has been made between the
parties and signed by the party against whom enforcement is
sought or by his authorized agent or broker. . . .
TEX. BUS. & COM. CODE § 2.201(a). Whether an agreement is an enforceable
contract is generally a question of law. Meru v. Huerta, 136 S.W.3d 383, 390
(Tex. App.--Corpus Christi 2004, no pet.).
19
1. No Contract in Writing
For an agreement to be legally binding, the contract's terms must be
sufficiently definite to enable a court to understand what the promisor
undertook. Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d
831, 846 (Tex. 2000); T.O. Stanley Boot Co. v. Bank of El Paso, 847
S.W.2d 218, 221 (Tex. 1992). If the court is unable to determine the parties'
rights and obligations, there is no enforceable contract. See Searcy v. DDA,
Inc., 201 S.W.3d 319, 322 (Tex. App.--Dallas 2006, no pet.); Estate of
Eberling v. Fair, 546 S.W.2d 329, 335 (Tex. Civ. App.--Dallas 1976, writ ref'd
n.r.e.); see also T. O. Stanley Boot Co., 847 S.W.2d at 221 (no binding
contract if an essential term is left open for future negotiation; before a court
can enforce the contract, the parties must agree to the contract's material
terms).
"Material terms" is defined as "contractual provision[s] dealing with a
significant issue such as subject matter, price, payment, quantity, quality,
duration, or the work to be done." BLACK'S LAW DICTIONARY 1510 (8th ed.
2004). Courts have implied material terms when the surrounding
circumstances left little doubt as to the parties' intentions. See Ski River
Development, Inc. v. McCalla, 167 S.W.3d 121, 134 (Tex. App.--Waco
2005, pet. denied); O'Farrill Avila v. Gonzalez, 974 S.W.2d 237, 244 (Tex.
20
App.--San Antonio 1998, pet. denied). That cannot be done in the present
case because there were no terms at all. Neither the trial judge nor this Court
may supply essential terms that the parties did not or could not agree upon.
As a matter of law, the oral agreement is not a valid, enforceable contract.
Allamon Tool Co. v. Derryberry, 2007 Tex. App. LEXIS 8858, *7 (Tex. App.-
-Beaumont 2007, no pet.).
To satisfy the statute of frauds, "there must be a written memorandum
which is complete within itself in every material detail, and which contains all
of the essential elements of the agreement, so that the contract can be
ascertained from the writings without resorting to oral testimony." Cohen v.
McCutchin, 565 S.W.2d 230, 232 (Tex. 1978) (cited by SDN, Ltd. v. JV Rd.,
L.P., 2010 Tex. App. LEXIS 2206, *8 (Tex. App.--Austin 2010, no pet.).
In this case, oral testimony was adduced with respect to the contract.
Flessner stated he did not prepare a written estimate of the work to be
performed by FEI. (RR 38) He further conceded there was no written contract,
and a price for the job was not discussed. (RR 38) In Flessner’s words, “It
was a handshake deal.” (RR 38) Ali contradicted Flessner’s testimony
regarding price by stating Flessner told him the price would be between
$40,000-$45,000. (RR 51) Ali agreed there was no written contract. (RR 51)
Flessner’s oral testimony was required to establish the contract price as
21
set forth in Exhibit 1. Ali’s oral testimony contradicted Flessner’s testimony.
Because no price was ever established and the testimony was conflicting as
to price, in the absence of a written contract, the agreement is unenforceable
under the statute of frauds.
2. Oral Contract not Sufficiently Specific
The rules regarding indefiniteness of material terms of a contract are
based on the concept that a party cannot accept an offer to form a contract
unless the terms of that contract are reasonably certain. RESTATEMENT
(SECOND) OF CONTRACTS § 33(1) (1981); Ski River Dev., Inc., 167 S.W.3d at
133 (Tex. App.--Waco 2005, pet. denied). The Restatement further asserts
that contract terms are reasonably certain "if they provide a basis for
determining the existence of a breach and for giving an appropriate Remedy."
RESTATEMENT (SECOND) OF CONTRACTS § 33(2) (1981). This conforms to the
policy that the parties, and not the courts, should make contracts. However,
a court may not create a contract where none exists and they generally may
not interpolate or eliminate material terms. Dahlberg v. Holden, 150 Tex.
179, 238 S.W.2d 699, 701 (1951).
Whether the parties reached an agreement is a question of fact.
Advantage Physical Therapy, Inc. v. Cruse, 165 S.W.3d 21, 24 (Tex.
App.--Houston [14th Dist.] 2005, no pet.). Whether an agreement is legally
22
enforceable, however, is a question of law. See Id.; Gaede v. SK Invs., Inc.,
38 S.W.3d 753, 757 (Tex. App.--Houston [14th Dist.] 2001, pet. denied) (both
cited by Parker Drilling Co. v. Romfor Supply Co., 316 S.W.3d 68, 72 (Tex.
App.-- Houston [14th Dist.] 2010, pet. denied)).
a. Elements Necessary for Contract Formation
This Court recently outlined the elements for a valid and binding
contract, to wit: (1) an offer; (2) acceptance in strict compliance with the terms
of the offer; (3) a meeting of the minds; (4) each party's consent to the terms;
and (5) execution and delivery of the contract with the intent that it be mutual
and binding. Luna v. Luna, 2011 Tex. App. LEXIS 3267, *7-8 (Tex. App.--
Corpus Christi 2011, no pet.) (citing Labor Ready Central L.P. v. Gonzalez,
64 S.W.3d 519, 522 (Tex. App.--Corpus Christi 2001, no pet.)). To create an
enforceable contract, there must be a clear and definite offer followed by a
clear and definite acceptance in accordance with the offer's terms. See Levin
Law Group, P.C. v. Sigmon, 2010 Tex. App. LEXIS 352 at *3 (Tex.
App.--Houston [14th Dist.] 2010, pet. filed) (mem. op.); Angelou v. African
Overseas Union, 33 S.W.3d 269, 278 (Tex. App.--Houston [14th Dist.] 2000,
no pet.).
The elements of written and oral contracts are the same and must be
present for a contract to be binding. Luna, 2011 Tex. App. LEXIS 3267 at *8.
23
Where an essential term is open for future negotiation, there is no binding
contract. Beal Bank, S.S.B. v. Schleider, 124 S.W.3d 640, 653 (Tex. App.-
-Houston [14th Dist.] 2003, pet. denied); Gerdes v. Mustang Exploration
Co., 666 S.W.2d 640, 644 (Tex. App.--Corpus Christi 1984, no writ).
Consideration is also a fundamental element of a valid contract. Federal Sign
v. Texas So. Univ., 951 S.W.2d 401, 408-09 (Tex. 1997).
b. Testimony Established All Elements for Contract
Formation not Present
The parties agree there was an oral contract for FEI to install new
electrical wiring at the FasTrak store. Both Flessner and Ali testified as to
such. However, none of the terms were agreed upon. There was never a
specific offer by FEI or an acceptance by Ali. As is clear by the testimony of
Flessner (there was no set price; price was not discussed) and Ali (the price
would be no greater than $45,000), and the actual bill submitted by FEI
($145,543.37), there was not a meeting of the minds, nor did each party
consent to the terms. This conflicting evidence also establishes there was no
consideration discussed or given. Simply put, no enforceable contract was
ever formed between FEI and Ali and the trial court erred in entering judgment
for FEI.
D. THE TESTIMONY ESTABLISHES PROPOSITIONS CONTRARY TO THE
COURT’S FINDINGS AND CONCLUSIONS
24
The trial court’s FF #5 and #6 and CL #1 are not supported by legally
sufficient evidence. A no evidence point of error must be sustained when the
record discloses one of the following: (1) evidence of a vital fact is completely
absent; (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) the evidence offered to
prove a vital fact is no more than a mere scintilla of evidence; or (4) the
evidence establishes conclusively the opposite of a vital fact. City of Keller
v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).
As stated above, evidence of vital facts (price, terms of
payment, quantity, quality, duration, or the work to be done) were omitted
from the parties’ oral agreement. Both Flessner and Ali admitted there was
no contract in writing; indeed, Flessner termed it a “handshake deal.” Thus,
there is no evidence that Ali “promised and became bound and liable to pay
[FEI] for said goods and services” (FF #5). Nor is there any evidence that Ali
agreed to pay FEI the sum of $145,543.37, the amount found by the trial court
to be due and owing to FEI (FF #6, CL #15 ); an amount that is three-and-a-
half times6 the amount Flessner told Ali the job would cost. (RR 51)
5
Ali reasserts his contention that FF #5 and #6 and CL #1 merely support the
elements of a suit on sworn account claim. By filing a sworn denial, Ali negated the
evidentiary affect of Rule 185 and put FEI to its proof. As such, these findings of fact and
conclusion of law are not controlling.
6
Finding of Fact No. 6 provides the original bill was $158,008.08.
25
E. CONCLUSION TO ISSUE NO. 2
The adduced testimony, both from Flessner and Ali, was that there was
not a contract in writing. The lack of a written contract places the agreement
squarely within the statute of frauds and negates the trial court’s judgment. In
addition, the oral agreement lacks the specificity and definiteness required for
even an oral contract to be enforceable.
Ali asks the Court to sustain their Issue No. 2, find the oral agreement
unenforceable as violative of the statute of frauds. Ali asks the Court to
reverse and render judgment that FEI take nothing by its claim. In the
alternative, Ali asks the Court to find the contract price was $45,000, give Ali
credit for the $20,000 he previously paid, and reverse and render judgment
that Ali owes FEI the sum of $25,000.
Issue No. 3:
To be entitled to attorney’s fees there must be a statute or contract
authorizing the award of attorney’s fees and there must be evidence to
support the amount of attorney’s fees requested. Where the record is
devoid of any evidence to support the award of attorney’s fees, the trial
court erred in awarding FEI attorney’s fees in the amount of $4,500.00
(Germane to FF #7 and CL #2)
"Texas has long followed the 'American Rule' prohibiting [attorney's] fee
awards unless specifically provided by contract or statute." MBM Fin. Corp.
v. The Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009) (citing
Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310-11 (Tex. 2006));
26
Wayne v. A.V.A. Vending, Inc., 52 S.W.3d 412, 417 (Tex. App.--Corpus
Christi 2001, pet. denied). Moreover, an award of attorney’s fees must be
supported by sufficient evidence. Wibbenmeyer v. TechTerra Communs.,
Inc., 2010 Tex. App. LEXIS 2203, *10 (Tex. App.--Austin 2010, pet. denied).
A. STANDARD OF REVIEW
Because Ali is challenging the legal sufficiency of the evidence to
support a finding on which they did not have the burden of proof at trial, they
must demonstrate that no evidence exists to support the adverse finding.
Brockie v. Webb, 331 S.W.3d 135, 138 (Tex. App.–Dallas 2010, no pet.)
(discussing standard for addressing challenges to legal and factual sufficiency
of attorney’s fees) (citing Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.
1983)). When reviewing the record, this Court is to determine whether any
evidence supports the award of attorney’s fees. Id. If more than a scintilla of
evidence exists, the legal sufficiency challenge fails. Id. (citing Formosa
Plastics Corp. USA v. Presidio Engr’s & Contractors, Inc., 960 S.W.2d 41,
48 (Tex. 1998)).
Issues concerning the availability of attorney’s fees under statute or
contract present questions of law that this Court reviews de novo. See
Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex 1999); In Re
Lesikar, 285 S.W.3d 3d 577, 583 (Tex. App.–Houston [14th Dist] 2009, no
27
pet.).
B. LAW RELATING TO ATTORNEY’S FEES
Even where a statute or contract permits the award of attorney’s fees,
there must still be sufficient evidence to support the amount of the attorney
fee award. "As a general rule, the party seeking to recover attorney's fees
carries the burden of proof." Stewart Title Guar. Co. v. Sterling, 822 S.W.2d
1, 10 (Tex. 1991). A determination of reasonable attorneys' fees is a question
for the trier of fact. Id. at 12. Factors that a fact finder should consider when
determining the reasonableness of a fee include: (1) the time and labor
required, the novelty and difficulty of the questions involved, and the skill
required to perform the legal service properly; (2) the likelihood that the
acceptance of the particular employment will preclude other employment by
the lawyer; (3) the fee customarily charged in the locality for similar legal
services; (4) the amount involved and the results obtained; (5) the time
limitations imposed by the client or by the circumstances; (6) the nature and
length of the professional relationship with the client; (7) the experience,
reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent on results obtained or uncertainty of
collection before the legal services have been rendered. See Arthur
Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).
28
Evidence of each of the Andersen factors is not required to support an award
of attorneys' fees. Southwest Grain Co. v. Pilgrim's Pride S.A. de C.V.,
2010 Tex. App. LEXIS 5014, *21-22 (Tex. App.--Corpus Christi 2010, pet.
denied). Rather, the Court looks at the entire record, the evidence presented
on reasonableness, the amount in controversy, the common knowledge of the
participants as lawyers and judges, and the relative success of the parties in
determining the reasonableness of the fee award. Garrod Invs., Inc. v.
Schlegel, 139 S.W.3d 759, 767 (Tex. App.—Corpus Christi 2004, no pet.)
(cited by McDonald v. Fox, 2012 Tex. App. LEXIS 9518, *7 (Tex. App.
Corpus Christi 2012, no pet.).
FEI’s pleading requested attorney’s fees, but did not reference a statute
that would support the award of attorney’s fees. Presumably, FEI relied on
a breach of contract cause of action. An award of attorney's fees in a breach
of contract claim is appropriate only if a party prevails and recovers damages.
See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8)(allowing recovery of
attorney's fees in valid claims involving oral or written contracts); State Farm
Life Ins. Co. v. Beaston, 907 S.W.2d 430, 437 (Tex. 1995).
C. THE COURT’S FINDINGS AND CONCLUSIONS ARE NOT SUPPORTED BY
LEGALLY SUFFICIENT EVIDENCE
To support the award of attorney’s fees, the court found “A reasonable
attorney fee for Plaintiff’s attorney, as heard by the evidence, is $4,500.00”
29
(FF #7) Based on this finding, the court concluded “Plaintiff is entitled to
recover attorney’s fees in the amount of $4,500.00.” (CL #2) There is no
evidence to support either the finding of fact or the conclusion of law.
Ali is aware of the civil practice and remedies code provision that allows
a court to “take judicial notice of the usual and customary attorney's fees and
of the contents of the case file without receiving further evidence” in a
proceeding before the court. TEX. CIV. PRAC. & REM. CODE ANN. § 38.004.
However, FEI’s attorney did not ask the court to take judicial notice of amount
and reasonableness of its attorney’s fees. Moreover, § 38.004 has been held
to apply only to claims for attorney's fees under § 38.001. Coward v.
Gateway Nat'l Bank, 525 S.W.2d 857, 859 (Tex. 1975) (cited by In the
Interest of Striegler, 915 S.W.2d 629, 644 (Tex. App.--Amarillo 1996, writ
denied)).
1. Where Contract Claim Fails, Claim for Attorney’s Fees
Fails
An award of attorney's fees in a breach of contract claim is appropriate
only if a party prevails and recovers damages. See TEX. CIV. PRAC. & REM.
CODE ANN. § 38.001(8); Beaston, 907 S.W.2d at 437. Because there was no
enforceable contract upon which to sustain the trial court’s damage award,
(See Issue Nos. 1 and 2) FEI’s award of attorney’s fees fails as well.
30
2. There is no Evidence to Support Award of Attorney’s
Fees Even if the Contract was Enforceable
FEI’s attorney stated in closing that “I’ve testified as to attorney fees.”
(RR 77) However, a review of the entire reporter’s record fails to yield any
testimony by FEI’s attorney. Moreover, a review of the court reporter’s Exhibit
List (Volume 3 of 3) does not reveal an exhibit detailing the amount of FEI’s
attorney’s fees, nor does the court reporter’s Master Index (Volume 1 of 3)
show any testimony being proffered by FEI’s attorney, Robert Lassmann.
There is no exhibit detailing the amount of attorney time expended by Mr.
Lassmann, nor is there even an affidavit filed by Mr. Lassmann that purports
to establish the amount of the attorney’s fees. FEI merely pled for $4,500.00
in attorney’s fees and that is what the trial court awarded.
Implicit in the Arthur Andersen, Southwest Grain, Garrods
Investment, and McDonald holdings supra, is that there is some evidence
regarding the amount of the attorney’s fees requested. In the present case,
the record is completely devoid of any evidence of attorney’s fees other than
Mr. Lassmann’s statement, made in closing arguments, that he previously
testified. This is not evidence.
D. CONCLUSION TO ISSUE NO. 3
The party applying for an award of attorney’s fees bears the burden of
proof. El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 762-63 (Tex. 2012). In this
31
case, FEI totally failed in carrying that burden because it’s attorney did not
proffer any evidence on the amount or reasonableness of the fees FEI was
requesting. Moreover, the statutory basis to support an award of attorney’s
fees is inapplicable because the oral contract violates the statute of frauds.
Ali requests that the Court sustain their Issue No. 3 and reverse and
render judgment that FEI take nothing by its request for attorney’s fees.
Issue No. 4:
When requested to do so, a trial court shall file any additional or
amended findings and conclusions that are appropriate. Where Ali
timely requested additional or amended findings of fact and conclusions
of law to support their limitations defense, the trial court erred in failing
to sign same.
Rule 298 permits a party to request specific additional or amended
findings or conclusions "after the court files original findings of fact and
conclusions of law." TEX. R. CIV. P. 298. In this point of error, Ali complains of
the trial court’s failure to file their requested additional or amended findings
and conclusions.
A. THE LAW RELATED TO ADDITIONAL FINDINGS
A trial court is required to make additional findings of fact that are
supported by the record and are not contrary to other previous findings. Rich
v. Olah, 274 S.w.3d 878, 886 (Tex. App.–Dallas 2008, no pet.). Rule 298
requires additional findings of fact and conclusions of law only if they relate
to "ultimate or controlling issues." Assoc. Tel. Directory Publishers v. Five
32
D's Publishing Co., 849 S.W.2d 894, 901 (Tex. App.--Austin 1993, no writ).
An ultimate fact issue is one essential to the cause of action that would have
a direct effect on the judgment. Gen. Elec. Capital Corp. v. ICO, Inc., 230
S.W.3d 702, 711 (Tex. App.--Houston [14th Dist.] 2007, pet. denied); Rich,
274 S.W.3d at 886; Vickery, 5 S.W.3d at 252.
A trial court is not required to make additional findings of fact that are
unsupported in the record, that are evidentiary, or that are contrary to other
previous findings. Buckeye Ret. Co., L.L.C. v. Bank of Am., N.A., 239
S.W.3d 394, 402 (Tex. App.--Dallas 2007, no pet.); see Rafferty v. Finstad,
903 S.W.2d 374, 376 (Tex. App.--Houston [1st Dist.] 1995, writ denied) (only
necessary finding was ultimate issue--whether division of marital estate was
just and right--rather than evidentiary findings as to parties' relative earning
capacities, investments of separate property in community residence, or
cruelty). The burden is on the party requesting additional findings of fact and
conclusions of law to show how the trial court's failure to make additional
findings and conclusions prevents that party from adequately presenting its
complaint on appeal. City of McAllen v. Ramirez, 2013 Tex. App. LEXIS
8887, *76 (Tex. App.--Corpus Christi) vacated on other grounds, 2013 Tex.
App. LEXIS 13785, *1 (Tex. App.--Corpus Christi 2013, no pet.).
33
B. TRIAL COURT’S FINDINGS AND CONCLUSIONS DID NOT ADDRESS ALI’S
AFFIRMATIVE DEFENSE OF LIMITATIONS
In the present case, the court filed findings of fact and conclusions of
law. [Supp. CR 4-5] However, the findings only supported FEI’s pled cause
of action for suit on sworn account; none of the court’s findings and
conclusions addressed the affirmative defense of limitations raised by Ali in
their pleadings and in the testimony adduced at trial. Whether the statute of
limitations acted to bar FEI’s claim against Ali was a controlling issue in the
case. Ali pled the affirmative defense in their Original Answer. [CR 30] They
raised it again in a motion for summary judgment. [CR 33] FEI’s documentary
evidence (Pl. Ex. 1) established Ali’s limitations defense.
Because of this defect, Ali timely filed a Request for Additional Findings
of Fact and Conclusions of Law [Supp. CR 8-9] and proposed additional
findings and conclusions. [Supp. CR 6-7] The trial court declined to sign the
additional findings of fact and conclusions of law.
Each additional fact requested is supported by the documents attached
to Plaintiff’s Original Petition [CR 4] and by testimony adduced at trial. Each
conclusion of law is supported by TEX. CIV. PRAC. & REM. CODE ANN. §
16.004(a)(3) (the four-year statute of limitations for debt), and the cases of
Integrated of Amarillo, Inc. v. Pinkston-Hollar Constr. Servs., 2013 Tex.
App. LEXIS 4216, 5-6 (Tex. App.--Amarillo Apr. 2, 2013, no pet.)(under a
34
continuing contract, limitations run at the completion of the work); Hubble v.
Lone Star Contracting Corp., 883 S.W.2d 379, 382 (Tex. App.–Fort Worth
1994, pet. denied)(construction contracts are typically continuing contracts);
and Godde v. Wood, 509 S.W.2d 435, 441 (Tex. Civ. App.--Corpus Christi
1974, writ ref’d n.r.e.)(substantial performance with respect to building
contracts is regarded as full performance triggering a plaintiff’s right to sue).
C. ALI’S ABILITY TO PRESENT APPEAL HINDERED BY TRIAL COURT’S
FAILURE TO FILE ADDITIONAL FINDINGS AND CONCLUSIONS
Because the trial court refused to make findings regarding when FEI’s
cause of action accrued and when it filed suit, elements necessary to support
Ali’s limitations defense, there are no findings that would result in a different
judgment. In In re R.D.Y., 51 S.W.3d 314 (Tex. App.–Houston [1st Dist.] 2001,
pet. denied), the First Court of Appeals held that a party must show the trial
court’s refusal to file the requested additional findings caused the rendition of
an improper judgment. Id. at 322. See also Pakdimounivong v. City of
Arlington, 219 S.W.3d 401, 412 (Tex. App.–Fort Worth 2006, pet. denied) (if
requested findings will not result in a different judgment, the findings need not
be made).
D. CONCLUSION TO ISSUE NO. 4
As shown in Issue No. 1 above, FEI’s claims against Ali were barred by
limitations. Although the evidence supported Ali’s request for additional
35
findings and conclusions, the trial court refused to make the additional
findings and conclusions. The judgment would have been different had the
findings been made in that FEI’s claims would have been barred by limitations
and it would have taken nothing.
Ali asks the Court to sustain their Issue No. 4, hold the trial court erred
in failing to make the requested additional findings and conclusions and
reverse the judgment of the trial court. Because the requested findings would
have supported Ali’s limitations defense, Ali also asks the Court to render the
judgment the trial court should have rendered, to wit: that FEI’s suit was
barred by limitations. TEX. R. APP. P. 43.2.
V. CONCLUSION AND PRAYER
The trial court erred in entering judgment against Ali. FEI failed to
timely file suit against Ali and as a result, it’s claims are barred by the statute
of limitations. The judgment is further in error because the oral contract FEI
sued upon is barred by the statute of frauds. It is of no moment that FEI filed
its lawsuit asserting a suit on sworn account because a suit on sworn account
does not allege a cause of action, it merely sets up the effect of a prima facie
pleading. If a defendant files a verified denial, the presumptions created by
the prima facie pleading are defeated and the plaintiff is put to his proof.
The trial court’s findings of fact and conclusions of law confirmed only
36
that FEI had filed a suit on sworn account and that evidence was received
concerning the suit on sworn account. There were no findings concerning the
existence of a contract, or that Ali breached the contract. The court refused
to file Ali’s requested additional findings of fact and conclusions of law, which
were supported by the pleadings, the testimony, and the documentary
evidence. Had the trial court filed the requested additional findings and
conclusions, the judgment would have been different.
Finally, the trial court erred in granting FEI its attorney’s fees. There was
no evidence to support the award, and even though a court can take judicial
notice of the reasonableness of attorney’s fees, there still has to be testimony
concerning the amount of the fees. There was none in this case. In addition,
should this court sustain either Issue No. 1 or Issue No. 2, there would be no
statutory basis to support an award of attorney’s fees.
Ali asks this Court to sustain his issues presented, reverse the judgment
of the trial court and render judgment that FEI take nothing.
Respectfully submitted,
THE WERNER LAW GROUP
/s/ Leslie A. Werner
Leslie A. Werner
SBN 21190150
PO Box 247
Victoria, Texas 77902
37
361-578-7200 Tel.
361-485-1949 Fax
leslie@werner-lawgroup.com
Attorney for Appellants, Nadir and
Mumtaz Ali
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Appellant’s
Brief was served on all counsel of record on June 30, 2015, as follows:
Ms. Cynthia Sheppard
PO Box 67
Cuero, Texas 77954
(via email shepp04@msn.com)
/s/ Leslie A. Werner
Leslie A. Werner
CERTIFICATE OF COMPLIANCE
The undersigned certifies that according to the WordPerfect word count
tool, this document contains 8520 words.
/s/ Leslie A. Werner
Leslie A. Werner
38
NO. 13-15-00095-CV
IN THE COURT OF APPEALS
FOR THE THIRTEENTH JUDICIAL DISTRICT
CORPUS CHRISTI, TEXAS
_____________________________________________________
NADIR N. ALI and MUMTAZ ALI
Appellants
v.
FLESSNER ENTERPRISES, INC.
Appellee
_____________________________________________________
Appeal from Cause No. 13-03-22,628
In the District Court of DeWitt County, Texas; 135th Judicial District
_____________________________________________________
APPENDIX
_____________________________________________________
Trial Court’s Judgment Tab 1
Findings of Fact and Conclusions of Law Tab 2
Request for Additional Findings of Fact and Conclusions of Law Tab 3
Proposed Additional Findings of Fact and Conclusions of Law Tab 4
\>-03
NO. 22,628
FLESSNER ENTERPRISES, INC. * IN THE DISTRICT COURT
*
vs. * OF DeWITT COUNTY, TEXAS
*
NADIR ALI & MUMTAZ ALI * 13STH. JUDICIAL DISTRICT
JUDGMENT
BE IT REMEMBERED that on the 17th day of October, 2014,
came on to be heard the above-entitled and numbered cause
wherein Flessner Enterprises, Inc., as Plaintiff, alleged that
it had sold and delivered goods and services to Nadir Ali and
Mumtaz Ali, Defendants, had has not yet be`` paid, in its
Original Petition filed herein. It appears that citation and
certified copy of plaintiff's Original Petition was served on
Defendants, Nadir Ali and Mumtaz Ali.
After hearing evidence .and argument of counsel and the law
involved herein, the Court is of the opinion that Plaintiff
should recover as prayed.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court
that said FLESSNER ENTERPRISES, INC., Plaintiff recover from
Defendants, Nadir Ali and Mumtaz Ali, the amount of $145,543.37
as damages, together with both pre- and post- judgment interest
I
I
JlmGMENT, Page 1
70
as allowed by law. IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that Plaintiff, Flessner Enterprises, Inc., recover attorney's
fees from Defendants, Nadir Ali and Mumtaz Ali, in the amount of
$4,500.00.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that costs
shall be assessed against the party incurring the same.
2tZ- day Iltu..~
SIGNED this the 7 of ~6' etl1l9s;s, 2014.
APPROVED:
FILE D
Ult;:.:::1h}.-_o·clocl< FM
Robert C. Lassmann, 2 14
Attorney for Plaintiff
Kenneth E. Kvinta,
Attorney for Defendants
JUDGMENT, Page 2
71
CAUSE NO. 22,628
IN THE 135TH JUDICIACjDISTRICT
FLESSNER ENTERPRISES, INC.
"
*
)
VS.
..* COURT OF
NADIR ALI & MUMTAZ ALI DeWITT COUNTY, TEXAS
FINDINGS OF FACT AND CONCLUSION OF LAW
After reviewing the pleadings and the record, the Court makes the following Findings of
Fact:
1. On October 17, 2014, the Court heard evidence in this cause from both Plaintiff and
Defendant.
2. Plaintiff delivered goods and services to Nadir Ali and Mumtaz Ali in DeWitt County,
Texas to a building owned by Derendants known as FastrakExpress. Said goods were in the
fonn of contracting ami electril.-al equipment and supplies. Said labor was perfonned by Plaintiff
and its employees and agents.
3. Plaintiff's sales and services were made at the special insistence and request of Defendants
and were delivered in the regular course of business.
4. .Plaintiff delivered said goods and services in the regular course of business. Plaintiff kept a
systematie record of said goods and services.
5. DefendsnlS promised and became bound and liable to pay Plaintiff for said goods and
services.
6. The principal amount Defendants owe Plaintiffis $158,008.08. After all lawful set-offs
and payments, the amount Defendants owe Plaintiff is $145,543.37.
7. A reasonable attorney fee fOf Plaintiff's attorney, as heard by the evidence, is $4,500.00.
The Trial Court makes the following Conclusions of Law:
1. Plaintiff delivered goods and services to Defendants in the regular course of business and of
which a systematic record was kept, after all lawful set-offs and charges are deducted, a total of
$145,543.37 is due and owing Plaintiff.
2. Plaintiff is entitled to recover attorney's fees in the amount of$4,500.00.
3. Plaintiff is entitled to pre- and post-judgment interest as provided by Jaw.
4. Defendant is liable for costs of court.
4
SIGNED this the (,~day Of_~4.!!<~=+_ _ _ _" 2015.
FILED
~Y!k:Lo·clOCk.~M
FEB 11 2015
,Texas
-t``~JJ.."epuIy
5
Filed
2123120154:08:04 PM
Tabeth Gardner
De¥;i!t County
District Cieri<
NO. 13.03-22,628
FLESSNER ENTERPRISES, INC. § IN THE DISTRICT COURT
§
V. § 135TH JUDICIAL DISTRICT
§
NADIR N. ALI and MUMTAZ ALI § DeWITT COUNTY, TEXAS
REQUEST FOR ADOITIONAl. FINDINGS OF FACT AND CONCl.USIONS OF LAw
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW the Defendants, Nadir N. Ali and MumtazAlI, and pursuant to TEX. R
CIV. P. 298, request that the Court file the Additional Findings of Fact and Conclusions of
Law attsched herelo as Exhibit A.'
The Additional Findings of Fac! and Conclusions of Law are requested in this case
because the original Findings of Fac! and Conclusions of Law. signed on February 6, 2015
and filed on February 11, 2015, made no reference 10 any fact relevant to Defendants'
statute of limitations defense.
Each additional fact requested is supported by the documents attached to Plaintiffs
Original Petition andlor Defendants' Motion for Summary Judgment. Each conclusion of
law is supported by TEX. CIV.PRAC.&REM. GODEANN.§ 16. 004(a)(3)(thefour-yesrstatute
of limitations for debt). and the cases of Integrated of Amarillo, Inc. v. Pinkston-Hollar
Canstr. Servs., 2013 Tex. App. LEXIS 4216, 5-6 (Tex. App.-Amarillo Apr. 2, 2013. no
pet.); Hubble v. Lone Star Contracting Corp•• 883 S.W.2d 379, 382 (Tex. App.-Fort
Worth 1994. pet. denied); and Godde v. Wood, 509 S.w.2d 435, 441 (Tex. Civ. App.--
Corpus Christi 1974, writ refd n.r.e.).
'Rule 298 requires that the request for additional findings and conclusions must be
filed within ten days of the original findings and conclusions. Ten days from February 11,
2015 was Saturday, February 21, 2015. The request is thus due on Monday, February 23,
2015. TEX.R.APP.P.4.1(a).
8
The additional findings and conclusions must be filed within ten days of the request
being made, or on or before March 5, 2015.
WHEREFORE, Defendants ask that the Court sign and file the Additional Findings
of fact and oonclusions of law attached hereto.
Respectfully submitted
THE WERNER LAw GROUP
Leslie A. Werner
PO Box 247
Victoria, Texas 77902
361·578·7200 Tel.
361-485-1949 Fax
leslie@werner-Iawgroup.oom
Attorney for Defendants, Nadir N. Ali and
MumtazAli
CERTifiCATE SERVICE
I hereby certify that a true and oorrect OOPY of the foregOing document was served
on all attorneys of reoord on February 23,2015 as follows:
Mr. Robert C. Lassmann
307 N. Gonzales
Cuero, Texas 77954
(via fax: 361-275-3282)
Leslie A. Werner
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NO. 13-03-22,628
FLESSNER ENTERPRISES, INC. § IN THE DISTRICT COURT
§
v. § 135TH JUDICiAl DISTRICT
§
NADIR N. All and MUMTAZ AU § DeWITT COUNTY, TEXAS
ADDITIONAl. FINDINGS OF FACT AND CONCl.USIONS OF LAw
As provided for in TEX. R. CIV. P. 298, the Court's Findings of Fact and Conclusions
of Law signed on February 6, 2015 and filed on February 11. 2015, afe hereby
supplemented with the following additional findings of fact and conclusions of law:
Findings of Fact
1. Plaintiff filed suit against Defendants on March 28, 2013.
2. Plaintiff sent to Defendants a final invoice dated March 30, 2009.
3. Plaintiff last provided materials for use on and installation in Defendants' property
no later than February 25, 2007.
4. Plaintiff last provided labor related to the installation of !he materials no later than
March 16,2009.
5. Defendants answered Plaintiff's Original Petition and asserted the affirmalive
defense of limitations.
6. Defendantsfiled a motion for summary judgment asserting Plaintiff's cause of action
was barred by limitations.
7. The Court denied the molion for summary judgment on October 9, 2014 and the
case proceeded to trial on October 17, 2014.
Conclusions of Law
1. The statute of limitations for a claim asserting breach of contract is four years.
2. A construction contract is generally a continuing contract.
3. On a continuing contract, limitations runs at !he earlier of (1) !he completion oflhe
work; (2) !he lermination of the contract under its own terms; or (3) !he anticipatory
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repudiation of the contract by one party and the adoption of the repudiation by the
other party.
SIGNED: _ _ _ _ _ _ _ _" 2015.
JUDGE PRESIDING
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