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Randall v. Walker

Court of Appeals of Texas, Third District, Austin

April 13, 2017

Terry Randall, Appellant
v.
Herbert J. Walker d/b/a Walker Water Well; and Walker Water Well Services, LLC, Appellees

         FROM THE DISTRICT COURT OF BASTROP COUNTY, 423RD JUDICIAL DISTRICT NO. 423-2441, HONORABLE CHRISTOPHER D. DUGGAN, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Pemberton and Bourland

          MEMORANDUM OPINION

          Jeff Rose, Chief Justice

         This is an appeal from a judgment notwithstanding the verdict (JNOV) in favor of defendants/appellees Herbert J. Walker d/b/a Walker Water Well; and Walker Water Well Services, LLC (collectively, Walker), after a jury awarded plaintiff/appellant Terry Randall $42, 500 in damages for breach of a water-well contract. On appeal, Randall contends that the district court erred in rendering JNOV. Because the evidence supporting the jury's findings, as submitted, is legally sufficient, as discussed below, we reverse the district court's judgment and render judgment in favor of Randall in accordance with the jury's findings.

         Background[1]

         In October 2011, Randall purchased a drilling rig to dig three water wells on his property in Smithville, Texas. Because Randall had no personal experience with using a drilling rig to drill water wells, Randall asked Herbert Walker, a licensed water-well digger, to instruct him so that Randall would be able to drill the wells himself. After unsuccessfully attempting to drill the wells himself, Randall decided to have Walker drill the three wells he wanted on his property, which Walker did using Randall's drilling rig and other supplies and equipment Randall provided. In return for the three wells, Randall gave his drilling rig to Walker.

         The water that Walker's wells produced was not potable-it was dirty and sandy with high iron content. Although Walker attempted to resolve the problems and also reassured Randall that the wells just needed time to clear, the water never cleared and is "still unusable and unfit for consumption." As a result, Randall filed the underlying suit against Walker for breach of an oral agreement that Walker would drill and install three "good" water wells on Randall's property in exchange for Randall's drilling rig, which Randall had already given to Walker.

         After a two-day trial, the jury answered "yes" to the first two questions in the charge:

QUESTION #l
Did [Randall and Walker] agree that [Walker] would drill three water wells to a depth of 250 feet using a drilling rig owned by Terry Randall; that [Walker] would set the tanks and the pumps on those wells; that the wells would produce good water; and that Terry Randall would transfer ownership of his drilling rig to [Walker] as payment for the wells?
In deciding whether the parties reached an agreement, you may consider what they said and did in light of the surrounding circumstances, including any earlier course of dealing. You may not consider the parties' unexpressed thoughts or intentions.
QUESTION #2
Did [Walker] fail to comply with the agreement?

         Based on these affirmative answers, the jury then found that the breach caused Randall damages of $42, 500 and that Randall's attorney fees were $30, 845. In response, Walker filed a motion for JNOV, which the district court granted. It is from this judgment that Randall appeals.

         Discussion

         Randall challenges the district court's JNOV in one issue, asserting that the district court erred because the evidence supporting the jury's findings is legally sufficient. We agree.

         We review a trial court's grant of JNOV under a no-evidence standard-i.e., legal-sufficiency standard-examining whether any evidence supports the jury's findings.[2] No evidence exists when there is: (a) a complete absence of evidence of a vital fact; (b) the court is barred by 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.[3] More than a scintilla of evidence exists when the evidence supporting the finding "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions."[4] When determining whether any evidence supports a judgment, we are "limited to reviewing only the evidence tending to support the jury's verdict and must disregard all evidence to the contrary."[5] We view the evidence and possible inferences in the light most favorable to the verdict.[6] If more than a scintilla of evidence supports the jury's findings, we must reverse the JNOV and uphold the jury's verdict.[7] Where, as here, the district court does not specify the grounds for granting the JNOV motion, we must uphold the district court's ruling if any of the stated grounds in Walker's JNOV motion uphold the judgment.[8]

         Question 1-existence of agreement

         In challenging the jury's answer to question 1, Walker asserts that there is no evidence that Randall and Walker entered into the agreement described and, further, that Randall's testimony at trial constitutes a judicial admission that there was no agreement. Specifically, Walker assert that "Many of these terms were never testified to at all, or were contradicted by Plaintiff's own testimony" and that "Plaintiff's own testimony constitutes a judicial admission that he did not [sic] an agreement with Defendant of the nature asked about in question 1."

         We note first that, even if we assume that Randall's testimony was contradictory, his contrary testimony would be, at most, a quasi-admission, not a judicial admission.[9] And while a judicial admission is conclusive upon the party making it, a quasi-admission is merely some evidence of the contrary position; it is not conclusive upon the admitter like a true judicial admission is.[10] The weight to be given a quasi-admission is decided by the trier of fact, here the jury.[11]

         In the record before us, there is legally sufficient evidence to support the jury's finding that Randall and Walker entered into the following agreement: Walker would drill three water wells to a depth of 250 feet using Randall's drilling rig; Walker would set the tanks and the pumps on those wells; the wells would produce good water; and Randall would transfer ownership of his drilling rig to Walker as payment for the wells. That evidence consists almost entirely of Randall's sworn testimony, including the following:

Q. And what was that deal?
A. The deal was that Mr. Walker would come over and drill me three good water wells for the drilling rig. . . .
Q. Was it part of this agreement with Mr. Walker that you would pay for all the materials involved?
A. Yes, sir.
. . .
Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Pemberton and Bourland A. No, sir. He didn't ask to be paid hourly. The deal was that he would drill me three good water wells for the drilling rig. And he ...

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