American Fluorite, Inc. and Triad Drilling & Supply Co., Inc. v. JB Oilfield, L.L.C.

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-08-00184-CV ____________________

AMERICAN FLUORITE, INC., and TRIAD DRILLING & SUPPLY CO., INC., Appellants

V.

JB OILFIELD, L.L.C., Appellee

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On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 06-10-10429-CV

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MEMORANDUM OPINION  

Appellants, American Fluorite, Inc. and Triad Drilling & Supply Co. Inc., appeal a jury verdict rendered in favor of JB Oilfield, L.L.C. on breach of contract claims. Among other claims, appellants argue on appeal that there is no evidence to support the jury's verdict and that the trial court abused its discretion in failing to provide a proposed jury instruction. We affirm the judgment.

BACKGROUND

American Fluorite, Inc. and Triad Drilling & Supply Co., Inc., appellants, are affiliates of GeoSouthern Energy Corporation, an oil and gas operating company. American Fluorite is a holding company that owns oil and gas leases and equipment for GeoSouthern. Triad is a management company that employs personnel for GeoSouthern. Between 2002 and 2005, GeoSouthern was storing three drilling rigs (rigs 23, 27, and 28) at an equipment storage site known as the Tamina Road yard. Rig 27 was owned by GeoSouthern; rig 23 was owned by American Fluorite, and rig 28 was owned by Triad. The record establishes that GeoSouthern and its affiliates acted essentially as one company with respect to the transactions involving the three rigs. Therefore, we refer to appellants herein collectively as "GeoSouthern" or the "GeoSouthern affiliates."

On March 7, 2005, Jeff Bryant, owner and manager of JB Oilfield, L.L.C., ("JB Oilfield" or "Bryant") brought two prospective buyers, Warren Ayres and Tommy Swanson, to the Tamina Road yard to inspect the three rigs. On April 1, 2005, GeoSouthern entered into a contract to sell rig 27 to Ayres's and Swanson's company, SEDCO Drilling Co., Ltd. ⁽¹⁾ The written contract for the sale of rig 27 stated that the seller had retained JB Oilfield as broker in the sale. It is undisputed that Bryant acted as a broker in the sale of rig 27 and was paid a five percent commission on the sale.

In September of 2005, Tommy Swanson left SEDCO. Shortly after leaving SEDCO, Swanson and a business partner made an offer to purchase rig 23. GeoSouthern sold rig 23 to Swanson and his partner in October of 2005 for $1,800,000. The written contract for the sale of rig 23 stated that the seller had retained JB Oilfield as a broker in the sale. However, the written contract for the sale was never signed by GeoSouthern.

On November 28, 2005, Ayres, acting on behalf of Aqua Drilling Co. L.P., a subsidiary of Eagle Oil and Gas Company, signed an agreement to purchase rig 28 from GeoSouthern for $2,500,000. The written contract for the sale of rig 28 does not specifically state that the seller had retained JB Oilfield to act as a broker in the sale. The contract states only that the "Seller shall indemnify and hold Purchaser harmless from all obligations to any broker retained by Seller in the sale of the Assets." In the underlying litigation, GeoSouthern disputed Bryant's involvement as a broker in the sale of rigs 23 and 28 and his right to receive commissions on these sales.

In 2006, Paul Culliver, the operations manager at the Tamina Road yard with whom Bryant dealt, resigned from GeoSouthern. Thereafter, Bryant contacted two GeoSouthern officers in an effort to secure payment of his commissions on the sales of rig 23 and rig 28 from GeoSouthern. Bryant sent an invoice to GeoSouthern claiming commissions on the sales of the two rigs. The following day, JB Oilfield's counsel sent a demand letter to GeoSouthern for the commissions, but GeoSouthern failed to respond. Bryant ultimately filed suit in the district court claiming that GeoSouthern breached its agreement with JB Oilfield to pay it a commission on the sales of rig 23 and rig 28.

TRIAL TESTIMONY AND JURY VERDICT

At trial, GeoSouthern argued that it did not have an agreement with Jeff Bryant or JB Oilfield to act as a broker on the sales of rig 23 or rig 28 and that in fact, Bryant had not rendered services with respect to those transactions. JB Oilfield argued that it had an agreement with GeoSouthern to broker the sales of rigs 23, 27, and 28 for a five percent commission and that GeoSouthern had breached two of the agreements by refusing to pay the commission on the sales of rigs 23 and 28. Testimony was presented from several witnesses, including Jeff Bryant, Warren Ayres, Tommy Swanson, Paul Culliver, and other GeoSouthern officers and employees.

Warren Ayres, acting through Aqua Drilling, the purchaser of rig 28, testified at trial by video-taped deposition. Ayres testified that Bryant introduced him and Swanson to GeoSouthern and Paul Culliver and that Bryant was an "integral part of the whole process." According to Ayres, he, Bryant, and Swanson had numerous conversations about the equipment (the rigs) and the condition of the equipment. In addition, Ayres testified that Bryant took them down to the Tamina Road yard to inspect the rigs. Bryant was "always the contact" that "took us out there, met with us, walked us through the equipment, showed us what was for sale[,]" and was the "liaison person between all of these transactions."

Ayres testified specifically as to Bryant's involvement as a broker in the sale of rig 28. Although not specified in the agreement that Ayres signed, Ayres testified that in his opinion rig 28 would not have been purchased without the involvement of Bryant. When asked if Bryant or any representative of JB Oilfield was present during Ayres's negotiations with Culliver for the purchase of rig 28, Ayres stated that "Jeff was present through the whole process up until right at the end when we finalized the contracts." Ayres disputed Culliver's deposition testimony in which Culliver stated that negotiations regarding rig 28 took place only between Ayres and Culliver. Ayres stated: "That doesn't fit my recollection of what transpired during April of 2005 and November, 2005. . . . Jeff Bryant was involved numerous times with conversations with Mr. Culliver concerning our acquisition of the rigs." According to Ayres, he knew that Bryant carried conversations between the two back to Culliver "to try to get the process moving forward for our acquisition of rig 28." Ayres stated unequivocally that "Jeff was an integral part of this whole process from start to really finish, in my opinion." Ayres admitted, however, that he had very little knowledge regarding the negotiations that took place over the purchase of rig 23.

Deposition testimony of Swanson, the purchaser of rig 23, was also introduced at trial. Swanson had personal knowledge regarding the sale of all three rigs. Swanson testified that Bryant made him aware of the drilling rigs that were for sale by GeoSouthern. Swanson further testified that when he and Ayres initially went out to the Tamina Road yard with Bryant, they were interested in buying all three rigs. Swanson explained that he and Ayres bought rig 27 first because it was the most "finished" rig and they could only work on one rig at a time. Swanson testified that Jeff Bryant was also involved in the sales of rigs 23 and 28. Swanson explained that Bryant was trying to mediate the deal because "Paul Culliver is not the everyday guy you deal with." Swanson stated that he had discussions with Bryant about his interest in buying both rig 23 and rig 28. According to Swanson, Bryant had acted as a broker in the sale of rig 27 and continued to act as a broker in the sales of rig 23 and 28. Swanson also testified regarding the specifics of the sale of rig 23. Swanson stated that he had conversations with both Culliver and John Perrella, of GeoSouthern, regarding JB Oilfield's involvement as a broker in the sale of rig 23. Swanson testified that Bryant helped put the deal together for the purchase of rig 23. Swanson acknowledged that the purchase of rig 23 would not have taken place had it not been for the involvement of Jeff Bryant and JB Oilfield. When counsel asked Swanson, "[i]f Mr. Culliver testifies he never had any conversation with Jeff Bryant regarding Rig 23, do you have any reason to believe that's not true?" Swanson responded, "I believe it's not true." In their deposition testimonies, Ayres and Swanson were both adamant that Jeff Bryant and JB Oilfield acted as a broker for GeoSouthern in the sales of rig 23 and rig 28.

Jeff Bryant testified at trial regarding his agreements with GeoSouthern to act as a broker in the sales of rigs 23, 27, and 28. Bryant stated that sometime prior to 2005, he went to Culliver and the two worked out an agreement that Bryant would act as a broker for the sales of the three rigs, which Culliver was initially considering selling for scrap. Bryant testified that he and Culliver agreed that Bryant would receive a five percent commission on the gross sale prices of the rigs. Bryant explained to the jury in detail how he acted as a broker in the sales of rigs 23, 27, and 28. Bryant stated that he did not send an invoice for the brokerage fee immediately following the sale of rig 23 and the sale of rig 28 because Culliver asked him not to send an invoice to GeoSouthern. According to Bryant, after months of assuring Bryant that they would work out his commission on the sales of the two rigs, Culliver resigned from GeoSouthern without paying Bryant the commissions. ⁽²⁾

GeoSouthern presented evidence that it had no formal brokerage agreement with Bryant or JB Oilfield to sell rigs 23 and 28, and that Bryant did not act as a broker in the company's sales of the two rigs. John Caveness, yard manager at the Tamina Road yard, testified for GeoSouthern at trial. Caveness testified that he had known Bryant for eight or nine years and that during that time Bryant had sold equipment at the Tamina Road yard and had stored personal equipment at the Tamina Road yard. Caveness testified that Bryant was involved in the sale of rig 27, but was not involved in the sales of rigs 23 or 28 like he was in the sale of rig 27. Caveness testified that he prepared all the bills of lading for the sales of rig 23 and 28. He testified that he and Culliver were the ones who were responsible for putting rigs 23 and 28 in a condition to be sold. Caveness also testified that he was not aware of any formal brokerage relationship between Bryant and GeoSouthern.

Deposition testimony of Culliver was also presented to the jury at trial. Culliver admitted that he and Bryant discussed selling rigs 23, 27, and 28, and that sometime around 2002 Bryant began trying to help GeoSouthern sell the three rigs. Culliver also testified that Bryant was not the only broker selling equipment out of the Tamina Road yard. Culliver explained:

[W]e didn't have more than one broker involved in any one sale. If Jeff had a sale for something, he'd come out and said I have a sale for this. Okay. If another broker--and there really wasn't that many--would come out and say I have a sale for this, then I'd sell it to [the respective broker's buyer]. That's the way it worked.

When asked if GeoSouthern had an agreement with JB Oilfield to act as a broker to sell rig 23, Culliver responded that the sale of rig 23 was between himself and Swanson. Culliver testified that Bryant "put a lot of energy and time" into the sale of rig 27, but that Culliver did not "remember [Bryant] being there that much" with respect to the sales of rig 23 and rig 28. When asked, "[w]as it an oral agreement that [GeoSouthern] had with JB Oilfield to market or sale these rigs[,]" Culliver responded, "I don't recall. He was not the only broker." Nevertheless, Culliver did not dispute the fact that if Bryant had not brought Ayres and Swanson to the yard to see rigs 23, 27, and 28, the rigs would not have been sold. When asked whether Jeff Bryant, JB Oilfield, L.L.C., ultimately responsible for the sale of Rig No. 23, 27, and 28, Culliver responded, "[W]ell, I don't know. He introduced me to those men, and those men ended up buying them." When asked, "that's what a broker does, isn't it?" Culliver responded, "That's correct." When asked, "that's how [a broker] earns a commission?" Culliver again responded, "That's correct."

John Perrella, the controller and Chief Financial Officer for American Fluorite, testified at trial. When asked if Perrella understood the nature of Bryant's business [JB Oilfield], Perrella responded, "I wasn't interested in what his business was. Other than, if he did services for us, we would pay him. We were contracted, we didn't have a contract, we didn't pay him." Perrella testified that Culliver told him that Bryant was not due a commission on the sales of rigs 23 and 28, even before they received an invoice, which Perrella "thought was strange." After GeoSouthern received an invoice from Bryant for commissions on the two sales, Perella talked to Culliver who maintained that there was no obligation on the company's part to pay the claimed commissions.

Deposition testimony from George Bishop, owner of GeoSouthern and its affiliates, was also presented to the jury at trial. Bishop stated that he put no restrictions on Culliver in selling the equipment at the Tamina Road yard. He stated that he knew that Culliver used brokers from time to time to help find interested buyers. According to Bishop, he became aware that Culliver used a broker for the sale of rig 27, but did not know at the time that Culliver was showing other rigs. Bishop stated in his deposition that there was not a signed copy of the contract for the sale of rig 23 because Culliver told Bishop not to sign the contract. Bishop explained that Culliver told him not to sign the contract because "[t]here was no broker fee involved in the sale" and paragraph thirteen referencing JB Oilfield as the broker needed to be changed. With respect to the sale of rig 28, Bishop stated that Culliver also told him that the company owed no broker fee for the sale of this rig and that reference to JB Oilfield as broker on that deal was deleted in paragraph thirteen of the purchase agreement. Margaret Molleston, vice president of GeoSouthern, also testified that she spoke to Caveness, Bishop, and Culliver when the company received the invoice from Bryant, and was informed by all three that the company did not owe Bryant a commission fee on the two sales.

After hearing testimony for several days from a number of different witnesses, the jury returned a verdict in favor of JB Oilfield finding that agreements existed between JB Oilfield and the GeoSouthern affiliates to broker the sales of rig 23 and rig 28, and that those agreements had been breached. The jury was presented the following questions regarding the disputed agreements:

QUESTION 1

Did JB Oilfield and American Fluorite agree that JB Oilfield would receive a commission on the sale of Rig #23?

. . . .

QUESTION 5

Did JB Oilfield and Triad agree that JB Oilfield would receive a commission on the sale of Rig #28?

. . . .

The jury answered "yes" to both questions. The jury further agreed that JB Oilfield performed its obligations under the agreements and that the GeoSouthern affiliates failed to comply with the agreements. The jury awarded JB Oilfield $215,000 in damages.

ISSUES

GeoSouthern appeals the jury verdict asserting four issues on appeal. In issue one, GeoSouthern argues that there is no evidence to support the jury's answers to questions one and five because evidence of any existing contracts is barred by the statute of frauds. In issue two, GeoSouthern asserts that the trial court abused its discretion by denying GeoSouthern's request to include an instruction on the statute of frauds regarding the alleged contracts. In issue three, GeoSouthern argues that because the award of attorneys' fees was based on a finding of breach of contract the award of fees should be reversed. Finally, in issue four, GeoSouthern contends that there is insufficient evidence to support the jury's answer to jury questions ten and twelve regarding quantum meruit because there is no evidence of the value of the services performed by JB Oilfield.

ISSUE ONE

GeoSouthern argues in issue one that there is no evidence to support the jury's finding that agreements existed between the GeoSouthern affiliates and JB Oilfield to broker the sales of rig 23 and rig 28. GeoSouthern asserts that "[i]f there was a brokerage agreement that applied to the sale of Rig 23 and Rig 28, then it was part of an ongoing agreement that JB Oilfield would act as a broker for GeoSouthern for various equipment that GeoSouthern decided to sell." GeoSouthern argues that recovery under this "ongoing agreement" is barred by the statute of frauds; therefore, any evidence of the agreement was improperly considered by the jury and would be insufficient to support the verdict.

No evidence points may only be sustained in one of the following circumstances: (a) a complete absence of evidence of a vital fact; (b) the court is barred by the rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (citing Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361 (1960)); see also King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). Here, GeoSouthen asserts that the jury was barred by the statute of frauds from giving weight to the evidence offered to prove the agreements allegedly breached. We disagree.  

An agreement which is not to be performed within one year from the date of making must be in writing and signed by the person to be charged with the promise; otherwise, the agreement is unenforceable. See Tex. Bus. & Com. Code Ann. § 26.01. "Whether a contract falls within the statute of frauds is a question of law." Choi v. McKenzie, 975 S.W.2d 740, 743 (Tex. App.--Corpus Christi 1998, pet. denied). Section 26.01(b)(6) does not apply if the contract could possibly be performed within one year-no matter how improbable performance within one year may be. Iacono v. Lyons, 16 S.W.3d 92, 95 (Tex. App.--Houston [1st Dist.] 2000, no pet.). "The fact that the entire performance within one year is not required, or expected, will not bring an agreement within the statute." Id. Section 26.01(b)(6) only bars oral contracts which could not be performed within one year. Compare id., with Niday v. Niday, 643 S.W.2d 919, 920 (Tex. 1982) (holding that if evidence conclusively proves contract cannot be completed within one year, it violates the statute of frauds). While it may have been unexpected or unlikely that the brokerage agreements with the GeoSouthern affiliates would be performed within one year, it was possible that both rigs could have been sold within a year from the date of the making of the agreements. See generally Tex. Bus. & Com. Code Ann. § 26.01. Therefore, the brokerage agreements are not barred by the statute of frauds.

GeoSouthern's assertion that "[t]he uncontroverted testimony at trial establishes that Bryant had an ongoing brokerage agreement with GeoSouthern" is without merit. The testimony presented at trial, as to whether an agreement existed between GeoSouthern and JB Oilfield to sell rigs 23 and 28, was disputed. GeoSouthern in fact defended the lawsuit under the theory that no agreement existed between GeoSouthern and JB Oilfield to broker the sales of rigs 23 and 28 and presented evidence in support of that position. At most, the uncontroverted evidence established that GeoSouthern had an ongoing business relationship with JB Oilfield. ⁽³⁾ However, an ongoing business relationship does not equate to an indefinite contract. The jury properly considered evidence regarding the brokerage agreements presented at trial. The jury was asked questions regarding the existence of two separate agreements and the jury answered "yes" to both questions. The jury found GeoSouthern failed to comply with each agreement. There is legally sufficient evidence in the record to support the jury's findings. We overrule issue one.

ISSUE TWO

In issue two, GeoSouthern contends the trial court abused its discretion in failing to include an instruction on the statute of frauds in the jury charge. GeoSouthern did not object to jury questions one and five. At the charge conference, JB Oilfield objected to questions one and five because they lacked an instruction "to the effect that an agreement does not have to be in writing as long as the parties have reached a meeting of the minds on the material terms of the agreement." In response to JB Oilfield's objection, counsel for GeoSouthern asserted that the requested instruction referenced "an issue of law and not a fact consideration [for] the jury[.]" Counsel for GeoSouthern further requested that, in the event the court was inclined to include JB Oilfield's proposed instruction, "an expansion of the definition of the oral contract be included related to the Statute of Frauds, Section [26.01], of the Texas Business and Commerce Code." The court overruled JB Oilfield's objection to questions one and five and declined to include its proposed instruction in the charge. GeoSouthern's conditionally requested instruction was accordingly also denied.

GeoSouthern subsequently filed its proposed instruction with the court, presumably in an effort to comply with Texas Rules of Civil Procedure 278. See Tex. R. Civ. P. 278 ("Failure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing . . . ."). Specifically, GeoSouthern proposed submission of the following instruction to questions one and five: "An agreement that cannot be performed within one year of the making of the agreement is unenforceable unless it is in writing and 'signed by the person to be charged with the promise.'" On appeal, GeoSouthern argues that the trial court abused its discretion by denying GeoSouthern's request to include an instruction on the statute of frauds and contends that a fact issue relating to the statute of frauds should have gone to the jury.   

"A trial court must submit 'such instructions and definitions as shall be proper to enable the jury to render a verdict.'" Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002) (quoting Tex. R. Civ. P. 277). An instruction is proper if it (1) assists the jury, (2) accurately states the law, and (3) finds support in the pleadings and the evidence. Tex. Workers' Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000). "When a trial court refuses to submit a requested instruction, the question on appeal is whether the request was reasonably necessary to enable the jury to render a proper verdict." Id. "The trial court has 'considerable discretion to determine necessary and proper jury instructions.'" Id. at 911 (quoting Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998)). A judgment will not be reversed because an instruction was refused unless the trial court clearly abused its discretion in refusing to include the instruction. Columbia Rio Grande Reg'l Healthcare, L.P. v. Hawley, 188 S.W.3d 838, 861 (Tex. App.--Corpus Christi 2006, pet. granted); Butler v. De La Cruz, 812 S.W.2d 422, 426 (Tex. App.--San Antonio 1991, writ denied). Moreover, a trial court's error in refusing an instruction is reversible only if it "'probably caused the rendition of an improper judgment.'" Union Pac. R.R. Co., 85 S.W.3d at 166.

It is significant that submission of GeoSouthern's proposed instruction to questions one and five would not have resulted in a finding on its affirmative defense under the statute of frauds. In jury questions one and five, the jury was asked: (1) whether there was an agreement between American Fluorite and JB Oilfield to broker the sale of rig 23, and (2) whether there was an agreement between Triad and JB Oilfield to broker the sale of rig 28. The jury answered "yes" to both questions. What the proposed instruction attempts to do is ask the jury to apply the law, specifically section 26.01 of the Texas Civil Practice and Remedies Code, to the facts presented to them and determine that any oral agreement between the parties was barred pursuant to the statute of frauds and, therefore, no agreements existed. This line of reasoning assumes the jury would have answered "no" to questions one and five in the event they decided that the agreements were unenforceable. However, whether an agreement exists and whether an agreement is unenforceable under the statute of frauds are two separate questions. At trial, the burden was on JB Oilfield to prove the existence of the two agreements, whereas the burden was on American Fluorite and Triad to prove the elements of any asserted affirmative defenses. Compass Bank v. MFP Fin. Servs. Inc., 152 S.W.3d 844, 851 (Tex. App.--Dallas 2005, pet. denied); Love v. State Bar of Tex., 982 S.W.2d 939, 943 (Tex. App.--Houston [1st Dist.] 1998, no pet.) (citing Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988)).

Moreover, the application of the statute of frauds is generally a question of law for the court. Choi, 975 S.W.2d at 743; see also Iacono, 16 S.W.3d at 94. GeoSouthern points to an exception to this general rule where the extrinsic evidence creates a fact issue as to whether an agreement can be completed within one year. See Metromarketing Servs., Inc. v. HTT Headwear, Ltd., 15 S.W.3d 190, 196 (Tex. App.--Houston [14th Dist.] 2000, no pet.). Under such circumstances, "what constitutes a reasonable time [for performance] is a question of fact" for the jury. Id. The evidence presented here does not create a fact issue as to whether the brokerage agreements found to exist by the jury could be completed in one year. GeoSouthern had the burden of proof on its statute of frauds defense. See Tex. R. Civ. P. 94; see also Compass Bank, 152 S.W.3d at 851. If GeoSouthern thought the evidence supported its statute of frauds defense, it should have submitted the proper jury question to ensure a jury finding on that defense. See Tex. R. Civ. P. 273, 278; see also Love, 982 S.W.2d at 943 ("A defendant relying on an affirmative defense must plead, prove, and secure findings to sustain the defense.") (citing Woods, 769 S.W.2d at 517).

While GeoSouthern pleaded an affirmative defense under the statute of frauds, it simply did not pursue this defense at trial. We conclude on the record before us that an instruction with respect to the statute of frauds would not have assisted the jury in rendering a verdict, nor does it find support in the evidence presented. Under these circumstances, the trial court did not abuse its discretion in refusing to include the proposed instruction. See generally Mandlbauer, 34 S.W.3d at 911-12 (Court held no abuse of discretion in refusing to include an instruction on producing cause where the case was not pled or tried under a producing cause theory and the jury charge did not mention producing cause but submitted the question in terms of "resulting from."). We overrule issue two. Because we have overruled issues one and two, we need not address issues three and four. ⁽⁴⁾ We affirm the judgment of the trial court.

AFFIRMED.

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CHARLES KREGER

Justice

Submitted on November 6, 2008

Opinion Delivered March 19, 2009

Before McKeithen, C.J., Gaultney and Kreger, JJ.  

1. SEDCO, which stands for Swanson Eagle Drilling Company, is a contract drilling company that became an investor/purchaser of oilfield equipment. SEDCO was originally owned by Eagle Oil & Gas Company, an oil and gas exploration company, that was started by Warren Ayres. Eagle Oil & Gas acted as the parent company to several entities owned in part by Ayres. Eagle Oil & Gas purchased Tommy Swanson's interest in SEDCO in 2005.

2. Bryant explained that Culliver was being paid a percentage on the sales by George Bishop, owner of GeoSouthern and its affiliates, and that Culliver stated that he would pay Bryant or trade him equipment from the yard. Bryant stated that Culliver informed him in August of 2006 that he had resigned from GeoSouthern but represented to Bryant that they would still work out his commission for the sales of the two rigs. Bryant testified that he had "heard that for months from Paul" and ultimately contacted GeoSouthern directly and sent an invoice. Bryant explained that he spoke with Perrella who was not aware of the brokerage agreement because "Paul had not said anything to anybody."

3. On appeal, the GeoSouthern affiliates cite minimal evidence in support of their "ongoing agreement" argument. Appellants rely on the following in support of this argument: 1) From at least 2002 to 2006, Bryant acted as a broker for GeoSouthern and inventoried the extra equipment that GeoSouthern owned; 2) Bryant advertised GeoSouthern's equipment in trade publications; 3) Bryant brokered a number of sales on various types of equipment owned by GeoSouthern; and 4) the commission Bryant received on a particular sale depended upon the type of equipment being sold.

4. GeoSouthern argues in issue three that because the award of attorneys' fees was based on a finding of breach of contract, the award of fees must be reversed along with that finding. Because we find the trial court's judgment on the breach of contract claim was proper, the trial court's award of attorneys' fees to JB Oilfield was also proper. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (Vernon 2008). In issue four, Geosouthern contends that because Bryant made only vague descriptions of the work he performed and never described the reasonable value of that work, he cannot recover under quantum meruit. However, the trial court entered judgment in JB Oilfield's favor on its breach of contract claim not its quantum meruit claim. The court stated, "[i]n the event that Plaintiff's breach of contract theory of liability fails on appeal, Plaintiff may elect to recover his damages under the quantum meruit theory of recovery." Because we have affirmed the trial court's judgment, we need not address issue four.