Court of Appeals of Texas, Fourth District, San Antonio
Malcolm C. HALBARDIER, Appellant
Arthur PEREZ, Appellee
the County Court at Law No. 3, Bexar County, Texas Trial
Court No. 2016CV07203 Honorable David J. Rodriguez, Judge
Sitting: Patricia O. Alvarez, Justice, Luz Elena D. Chapa,
Justice Irene Rios, Justice.
Halbardier sued his neighbor, Arthur Perez, seeking to
recover half the cost of replacing ninety feet of fence that
divides their properties. In four issues on appeal,
Halbardier contends the trial court erred by failing to file
findings of fact and conclusions of law and rendering a take
nothing judgment on his claims for breach of contract,
promissory estoppel, and quantum meruit. We affirm the
judgment of the trial court.
contracted with Quality Fence & Welding ("Quality
Fence") to replace the fence enclosing his backyard.
Halbardier asked Perez, his next-door neighbor, to split the
cost of replacing the portion of fence shared by Halbardier
and Perez. Perez agreed to pay half the cost of replacing the
fence, i.e., $720. The parties agreed Perez would pay Quality
length of the entire fence dividing the parties'
properties is one hundred feet. The length of the fence to
Halbardier's return is ninety feet, and the fence extends
another ten feet to Perez's return. Quality Fence's
employees replaced ninety feet of fence dividing the
parties' properties up to the point of Halbardier's
return. However, they did not replace the portion of the
fence dividing the parties' properties between
Halbardier's return and Perez's return. When Perez
noticed that Quality Fence's employees did not replace
the entire one hundred feet of fence, he complained to
Halbardier. Halbardier and Perez then approached Quality
Fence's employees and asked why they did not replace the
entire fence. Quality Fence's employees explained
Halbardier's contract with Quality Fence called for the
replacement of only ninety feet of the fence, i.e., up to
Halbardier's return. Perez did not remit any payment to
Quality Fence, and Halbardier paid the entire cost of the
sued Perez for breach of contract, promissory estoppel, and
quantum meruit, alleging Perez owed him $720. During the
bench trial, Perez testified the agreement was to split the
cost of replacing the entire fence dividing the parties'
properties, up to Perez's return. Halbardier testified
the agreement was to split the cost of only ninety feet of
fence, up to Halbardier's return. Halbardier further
testified that when he and Perez entered into the agreement,
he showed Perez a diagram indicating that only ninety feet of
the fence would be replaced. The trial court admitted the
diagram into evidence. The trial court entered a judgment
that Halbardier take nothing on each of his claims.
timely filed a request with the trial court for findings of
fact and conclusions of law. When the trial court failed to
file any findings and conclusions, Halbardier timely filed a
notice of past due findings. The trial court did not file
findings of fact or conclusions of law.
trial court fails to file findings of fact and conclusions of
law in response to a proper and timely request, we must
presume the trial court made all the findings necessary to
support the judgment. Ad Villarai, LLC v. Chan Il
Pak, 519 S.W.3d 132, 135 (Tex. 2017) (per curiam).
However, where the appellate record includes the
reporter's and clerk's records, the trial court's
implied findings are not conclusive and may be challenged for
legal and factual sufficiency. BMC Software Belgium, N.V.
v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). We will
affirm the trial court's judgment on any legal theory
that finds support in the evidence. Exterior Bldg.
Supply, Inc. v. Bank of Am., N.A., 270 S.W.3d 769, 772
(Tex. App.-Dallas 2008, no pet.).
party challenges the legal sufficiency of an adverse finding
on an issue on which he has the burden of proof, he must
demonstrate on appeal that the evidence conclusively
established all vital facts in his favor as a matter of law.
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.
2001) (per curiam). We first examine the record for evidence
to support the finding. Id. "If there is no
evidence to support the finding, [we] then examine the entire
record to determine if the contrary position is established
as a matter of law. Id. We indulge every reasonable
inference to support the judgment, crediting favorable
evidence if a reasonable factfinder could and disregarding
contrary evidence unless a reasonable factfinder could not.
City of Keller v. Wilson, 168 S.W.3d 802, 822, 827
a party attacks the factual sufficiency of an adverse finding
on an issue on which [he] has the burden of proof, [he] must
demonstrate on appeal that the adverse finding is against the
great weight and preponderance of the evidence." Dow
Chem., 46 S.W.3d at 242. We "must consider and
weigh all the evidence." Id. We will set aside
the judgment only if the evidence supporting the trial
court's finding is so weak or if the trial court's
finding is "so ...