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Air Jireh Service Corp. v. Weaver & Jacobs Constructors, Inc.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

July 11, 2019

AIR JIREH SERVICE CORPORATION, HVAC PLUMBING SPECIALIST CORPORATION A/K/A HVAC PLUMBING SPECIALIST CORPORATION A/K/A HVAC PLUMBING SPECIALIST INC. D/B/A AIR JIREH SERVICE A/K/A AIR JIREH SERVICES AND OSKAR SEPULVEDA, JR., Appellants,
v.
WEAVER & JACOBS CONSTRUCTORS, INC., Appellee.

          On appeal from the 24th District Court of De Witt County, Texas.

          Before Justices Hinojosa, Perkes, and Wittig [1]

          MEMORANDUM OPINION

          PER CURIAM

         Appellants Air Jireh Service Corporation (AJS), HVAC Plumbing Specialist Corporation a/k/a HVAC Plumbing Specialist Corporation a/k/a HVAC Plumbing Specialist Inc. d/b/a Air Jireh Service a/k/a Air Jireh Services (HVAC) and Oskar Sepulveda, Jr. appeal a final verdict in favor of appellee Weaver & Jacobs Constructors, Inc. (Weaver). By eight issues, which we construe as nine, AJS contends that: (1) the trial court erred in its findings of fact and conclusions of law because it failed to list AJS as a party (issue one); (2) the evidence is insufficient to support the judgment under all theories pleaded by Weaver (issues two through seven); and (3) the trial court improperly awarded Weaver attorney's fees (issues eight and nine). We affirm in part and reverse and remand in part.[2]

         I. Background

         Weaver contracted with Taft Independent School District (Taft) to make certain improvements. Weaver asked for bids from subcontractors to perform air-conditioning work for the Taft project. Sepulveda, AJS's project manager, submitted a bid to Weaver on behalf of AJS. After complying with Weaver's request to revise the bid, AJS submitted a revised bid to perform the work for $125, 971. Subsequently, after Weaver claims it accepted the bid, Sepulveda informed Weaver that AJS would not perform the work.

         Weaver filed suit against appellants for breach of contract, promissory estoppel, violations of the Texas Deceptive Trade Practices Act (DTPA), fraud, and negligent misrepresentation. After the parties filed agreed stipulated facts, the trial court held a bench trial with testimony from, among others, Michael Weaver, Weaver's president; Chris Brzozowski, Weaver's project manager; and Sepulveda. The trial court awarded Weaver $16, 556 in damages and $21, 354 in attorney's fees. The trial court issued findings of fact and conclusions of law, and this appeal followed.

         II. Findings of Fact and Conclusions of Law

         By its first issue, AJS contends that the trial court erred by failing to list it as a party in its findings of fact and conclusions of law.[3] However, a trial court need not make findings of fact on undisputed matters, and here, AJS did not dispute that it was involved in this cause.[4] See Limbaugh v. Limbaugh, 71 S.W.3d 1, 5 (Tex. App.-Waco 2002, no pet.). Moreover, AJS did not request additional findings of fact; thus, any complaint to those findings is waived. See Ad Villarai, LLC v. Chan Il Pak, 519 S.W.3d 132, 137 (Tex. 2017) (quoting Las Vegas Pecan & Cattle Co., Inc. v. Zavala County, 682 S.W.2d 254, 255 (Tex. 1984) ("Without [the] timely reminder [that rule 297 requires], [the requesting party] waived its complaint of the failure on appeal.")); see also Barton v. Barton, __S.W.3d__, __ No. 08-15-00110-CV, 2018 WL 4659568, at *5 (Tex. App.-El Paso Sept. 28, 2018, no pet.) ("When a party fails to timely request additional findings of fact and conclusions of law, it is deemed to have waived the right to complain on appeal of the court's failure to enter additional findings."). Finally, AJS does not explain how error, if any, in the trial court's findings of fact affects the final judgment or harms it in any way. See Tex. R. App. P. 38.1(i); see also In re Q.W.J., No. 07-10-0075-CV, 2011 WL 3629195, at *3 (Tex. App.-Amarillo Aug. 18, 2011, no pet.) (mem. op.). We overrule AJS's first issue.[5]

         III. Breach of Contract

         By its second issue, AJS contends that the trial court erred by ruling that the parties entered a valid and enforceable contract because Weaver's acceptance of AJS's bid was not clear and definite, and the parties "were not on the same page."[6] AJS does not specifically state which element it is challenging; however, based on its arguments and our review of its brief, we construe AJS's second issue as challenging the legal sufficiency of the evidence supporting a finding that there was a meeting of the minds.[7]

         A. Standard of Review

         A trial court's findings of fact after a bench trial have the same weight as a jury verdict. In re J.M.C., 395 S.W.3d 839, 844 (Tex. App.-Tyler 2013, no pet.) (citing Fulgham v. Fischer, 349 S.W.3d 153, 157 (Tex. App.-Dallas 2011, no pet.)). "When the appellate record contains a reporter's record as it does in this case, findings of fact are not conclusive and are binding only if supported by the evidence." Fulgham, 349 S.W.3d at 157. Our standard of reviewing a trial court's findings of fact is the same as those used to determine if legally and factually sufficient evidence exists to support an answer to a jury question. Id.

         The appellant challenging the legal sufficiency of an adverse finding on which he did not have the burden of proof at trial must demonstrate there is no evidence to support the adverse finding. Id. The test for legal sufficiency is "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In our review, we must credit favorable evidence if a reasonable fact finder could and disregard contrary evidence unless a reasonable fact finder could not. Id. We must consider the evidence in the light most favorable to the challenged findings, indulging every reasonable inference that supports them. Id. at 822.

         B. Breach of Contract

         1. Applicable Law

         The elements required to form a valid and enforceable contract are (1) an offer, (2) acceptance in strict compliance with the terms of the offer, (3) a meeting of the minds, (4) each party's consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding. USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 502 n.21 (Tex. 2018); Beverick v. Koch Power, Inc., 186 S.W.3d 145, 150 (Tex. App.-Houston [1st Dist.] 2005, pet. denied). A "meeting of the minds" occurs if there is a mutual understanding and assent to the agreement regarding the subject matter and the essential terms of the contract. City of The Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 720 (Tex. App.-Fort Worth 2008, pet. dism'd). Whether there is a meeting of the minds is a question of fact. Franco v. Ysleta Indep. Sch. Dist., 346 S.W.3d 605, 608 (Tex. App.-El Paso 2009, no pet.).

         2. Analysis

         In their joint statement of stipulated facts, the parties agreed that AJS submitted an offer to perform the required work as subcontractor to Weaver and that Weaver would accept AJS's offer if AJS lowered its bid to $125, 971. Subsequently, according to the stipulated facts, Weaver sent a subcontract to AJS for the amount of $125, 971.

         Michael testified, in relevant part, that Weaver is a general contractor and Taft hired Weaver to serve as the construction manager-at-risk, meaning that Weaver would "assist in the final design" of the construction and then "bid it out to the subcontractors to perform the work." Michael explained that the contract is "at-risk" because if the ...


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