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Halbardier v. Perez

Court of Appeals of Texas, Fourth District, San Antonio

April 25, 2018

Malcolm C. HALBARDIER, Appellant
v.
Arthur PEREZ, Appellee

          From the County Court at Law No. 3, Bexar County, Texas Trial Court No. 2016CV07203 Honorable David J. Rodriguez, Judge Presiding.

          Sitting: Patricia O. Alvarez, Justice, Luz Elena D. Chapa, Justice Irene Rios, Justice.

          MEMORANDUM OPINION

          IRENE RIOS, JUSTICE.

         Malcolm 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.

          Background

         Halbardier 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 Fence directly.

         The length of the entire fence dividing the parties' properties is one hundred feet. The length of the fence to Halbardier's return[1] 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 fence.

         Halbardier 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.

         Halbardier 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.

         This appeal followed.

         Standard of Review

         If the 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.).

         When a 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 (Tex. 2005).

         "When 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 ...


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