Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
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,
WEAVER & JACOBS CONSTRUCTORS, INC., Appellee.
appeal from the 24th District Court of De Witt County, Texas.
Justices Hinojosa, Perkes, and Wittig 
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.
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.
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.
Findings of Fact and Conclusions of Law
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. 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. 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.
Breach of Contract
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." 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
Standard of Review
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.
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.
Breach of Contract
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
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.
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 ...