Court of Appeals of Texas, Fifth District, Dallas
Appeal from the County Court at Law Rockwall County, Texas
Trial Court Cause No. 1-14-110
Justices Lang, Myers, and Stoddart Opinion by Justice
Miller appeals the trial court's judgment finding he
breached a contract with Design Masterpiece Landscape, Inc.
(DML). The parties' dispute arose after DML performed
landscaping services, including removal of a fountain, on
Miller's property and Miller did not remit payment. In a
single issue, Miller argues the evidence is legally
insufficient to show an agreement between the parties because
there is no evidence he agreed to pay for DML's work. We
affirm the trial court's judgment.
hired DML in 2005 to perform landscaping services and the
parties regularly did business together. When Miller failed
to pay DML's outstanding invoices, DML sued Miller for
approximately $20, 000. After suit was filed, Miller
contacted DML and paid the amount due.
June 2006, the parties entered into a written contract for
DML to construct a stone fountain for Miller. The fountain
was installed and Miller paid DML pursuant to the
and DML presented different renditions of what occurred
between them after the fountain was installed.
testified he immediately noticed the stone on the fountain
was chipping so he contacted Ryan Wetzel, project manager for
DML, who advised Miller to change the process for cleaning
the fountain. Miller stated the problem remained unresolved
and eventually Wetzel agreed to remove and repair the
fountain. In 2009, Wetzel had the fountain removed. Although
the base was left intact so the fountain could be reinstalled
after it was repaired, Miller testified Wetzel never returned
the fountain. Miller explained DML continued performing
landscaping work and he continued paying DML while waiting
for the fountain to be repaired. Eventually, Miller told
Wetzel: "I'm not paying you for anymore [sic] work
over here until I get that fountain back because I don't
believe I'm getting it back. So we agreed that any work
that he did . . . the money would be held back until either I
got the fountain back or he worked off the value of the
fountain." Miller maintained that DML accepted this
testified Miller never contacted DML about defects with the
fountain. Rather, during the summer of 2010, Miller
instructed DML to remove pieces of the fountain to protect it
from potential damage while Miller renovated his home. DML
subcontracted the removal and paid the subcontractor in full.
Wetzel testified it was common for DML to bill a job by a
subcontractor at cost and provide the original
subcontractor's invoice to the customer. Wetzel stated
DML was storing, not repairing, Miller's fountain and
Miller could have it back at any time. DML never repaired the
fountain and there was never an agreement between DML and
Miller for DML to perform free services for the cost of the
fountain. Wetzel testified the first time he heard of the
alleged oral agreement to perform free landscaping services
was at trial.
stated that DML performed landscaping services for Miller in
2010 and 2011, but Miller failed to pay. In May 2012, Wetzel
sent a demand letter stating Miller was $7, 870 in default.
When payment was not forthcoming, DML filed two lawsuits
against Miller to recoup the costs of removing the fountain
and landscaping services. In turn, Miller sued DML for breach
of contract. The lawsuits were consolidated. Following a
bench trial, the trial court found in favor of DML and
awarded damages, including attorney's fees. The trial
court entered findings of fact and conclusions of law. This
single issue, Miller argues that although the trial court
concluded he entered into and subsequently breached a
contract with DML for removal and storage of the fountain and
landscaping services, DML failed to introduce any evidence of
a contract for those services because there is no evidence he
agreed to pay for DML's work.
appeal from a bench trial, we review a trial court's
findings under the same legal sufficiency of the evidence
standards used when determining if sufficient evidence exists
to support the answer to a jury question. Catalina v.
Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). When a party
attacks the legal sufficiency of an adverse finding on which
it did not have the burden of proof at trial, it must
demonstrate there is no evidence to support the finding.
See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.
1983). When determining whether the evidence is legally
sufficient to support a finding, we consider the evidence in
the light most favorable to the judgment and indulge every
reasonable inference that would support it. City of
Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).
We credit favorable evidence if a reasonable factfinder could
and disregard contrary evidence unless a reasonable
factfinder could not. Id. "The final test for
legal sufficiency must always be whether the evidence at
trial would enable reasonable and fair-minded people to reach
the verdict under review." Id. The factfinder
is the sole judge of the credibility of the witnesses and the
weight to be given their testimony. See id. at 819.
although DML did not present evidence of a written contract
with Miller-and agreed no written contract exists-there is
evidence of an implied contract. An implied contract exists
when the facts and circumstances show a mutual intention to
contract. Pettigrew v. Reeves, No. 05-12-00455-CV,
2014 WL 6546980, at *2 (Tex. App.-Dallas Oct. 22, 2014, no
pet.) (citing Harrison v. Williams Dental Group,
P.C., 140 S.W.3d 912, 916 (Tex. App.-Dallas 2004, no
pet.)). Every contract requires a meeting of the minds, but
such a meeting can be implied from and evidenced by the
parties' conduct and course of dealing. Id.
Whether an implied contract exists is a question of fact,
which requires making inferences from circumstantial evidence
regarding mutual assent. McAllen Hosps., L.P. v.
Lopez, No. 13-16-00138-CV, 2017 WL 1549211, at *2 (Tex.
App.-Corpus Christi Apr. 27, 2017, no pet. h.) (citing
Double Diamond, Inc. v. Hilco Elec. Coop., Inc., 127
S.W.3d 260, 267 (Tex. App.- Waco 2003, no pet.); Domingo
v. Mitchell, 257 S.W.3d 34, 40 (Tex. App.-Amarillo 2008,
the parties' conduct and course of dealing, the fact
finder could have inferred the element of mutual assent from
the circumstances. Miller asked DML to remove the fountain,
DML subcontracted with a third party to do so, and Miller
failed to pay the cost of removing the fountain at his own
request. The invoice submitted by the subcontractor to DML is
part of the record and Wetzel testified that DML's
practice is to submit such invoices to their customers. DML
continued providing landscaping services after the fountain
was removed. Miller admitted he paid DML for some of the
landscaping work. However, because Miller did not pay for the
fountain removal and some of the landscaping services, DML
sent Miller a demand letter stating he was "in default
of your obligation to pay the sum of $7, 870.00 . . . and you
have failed to pay despite repeated requests for payment by
our office." The record does not show Miller protested
the demand letter or attempted to reconcile the account.
Rather, as in 2005, DML was forced to sue Miller to recover
its unpaid invoices. Additionally, Miller tacitly
acknowledged he knew there would be compensation for the
removal of the fountain and landscaping services when he
testified he told Wetzel "the money would be held back
until either I got the fountain back or he worked off the
value of the fountain." By stating he was "holding
the money ...