Nadir N. Ali and Mumtaz Ali v. Flessner Enterprises, Inc.

• Court: Court of Appeals of Texas
• Decided: June 30, 2015
• Docket: 13-15-00095-CV
• Status: Published

Opinion

ACCEPTED FILED 13-15-00095-CV THIRTEENTH COURT OF APPEALS IN THE 13TH COURT OF APPEALS CORPUS CHRISTI, TEXAS CORPUS CHRISTI - EDINBURG 6/30/2015 3:17:15 PM CECILE FOY GSANGER 06/30/15 CLERK

CECILE FOY GSANGER, CLERK NO. 13-15-00095-CV BY cholloway RECEIVED IN 13th COURT OF APPEALS IN THE COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS FOR THE THIRTEENTH JUDICIAL DISTRICT 6/30/2015 3:17:15 PM CORPUS CHRISTI, TEXAS CECILE FOY GSANGER Clerk

_____________________________________________________

NADIR N. ALI and MUMTAZ ALI Appellants

v.

FLESSNER ENTERPRISES, INC. Appellee

Appeal from Cause No. 13-03-22,628 In the District Court of DeWitt County, Texas; 135th Judicial District _____________________________________________________

APPELLANTS’ BRIEF _____________________________________________________

THE WERNER LAW GROUP Leslie A. Werner PO Box 247 Victoria, Texas 77902 361-578-7200 361-485-1949 fax SBN 21190150 Attorney for Appellants Nadir and Mumtaz Ali

ORAL ARGUMENT IS REQUESTED INTERESTED PERSONS OR PARTIES

The following is a list of all parties to this appeal and the names and addresses of those parties’ counsel.

Appellants Nadir N. and Mumtaz Ali

Appellant’s Trial Counsel Kenneth E. Kvinta KENNETH E. KVINTA, P.C. 403 W. Grand Avenue Yoakum, Texas 77995

Appellant’s Appellate Counsel Leslie A. Werner THE WERNER LAW GROUP PO Box 247 Victoria, Texas 77902

Appellee Flessner Enterprises, Inc.

Appellee’s Trial Counsel Robert C. Lassmann 307 N. Gonzales Cuero, Texas 77954

Appellant’s Appellate Counsel Cynthia Shepard PO Box 67 Cuero, Texas 77954

ii TABLE OF CONTENTS

Interested Persons or Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv

Issues Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv

I. Procedural Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III. Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

IV. Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Issue No. 1: Claims for breach of a construction contract must be instituted within four years of the date the work was substantially completed. Where the great weight and preponderance of the evidence established the last date the work was substantially completed was more than four years prior to the date suit was filed, the trial court erred in entering judgment for FEI.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

A. Standard of Review and Burden of Proof. . . . . . . . . . . . . . . . 11

B. FEI not Entitled to the Evidentiary Presumption of a Suit on Sworn Account. . . . . . . . . . . . . . . . . . . . . . . . . . 12

C. Effect of Trial Court’s Findings of Fact Where Prima Facie Right to Recovery is Defeated. . . . . . . . . . . . . . 12

D. The Statute of Limitations Barred FEI’s Claim. . . . . . . . . . . . 14

iii 1. FEI’s substantial completion running of the statute of limitations on March 16, 2009. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

2. Demand for Payment does not Trigger the Statute of Limitations. . . . . . . . . . . . . . . . . . . . . . . . . . . 17

E. Conclusion to Issue No. 1.. . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Issue No. 2: In order to prevail on a breach of contract action, the agreement must be in writing and signed by the person against whom liability is sought. Where there was no evidence of a contract in writing, signed by Ali, the trial court erred in entering judgment against them. . . . 18

A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

B. No Findings with Respect to the Statute of Frauds. . . . . . . . . 19

C. The Statute of Frauds Applies to Bar FEI’s Ability to Recover Damages .. . . . . . . . . . . . . . . . . . . . . . . . . 19

1. No Contract in Writing. . . . . . . . . . . . . . . . . . . . . . . . . . 20

2. Oral Contract not Sufficiently Specific. . . . . . . . . . . . . . 22

a. Elements Necessary for Contract Formation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

b. Testimony Established All Elements for Contract Formation not Present. . . . . . . . . . . . . . 24

D. The Testimony Establishes Propositions Contrary to the Court’s Findings and Conclusions . . . . . . . . . . . . . . . . 24

E. Conclusion to Issue No. 2.. . . . . . . . . . . . . . . . . . . . . . . . . . . 26

iv Issue No. 3: To be entitled to attorney’s fees there must be a statute or contract authorizing the award of attorney’s fees and there must be evidence to support the amount of attorney’s fees requested. Where the record is devoid of any evidence to support the award of attorney’s fees, the trial court erred in awarding FEI attorney’s fees in the amount of $4,500.00. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

B. Law Relating to Attorney’s Fees. . . . . . . . . . . . . . . . . . . . . . . 28

C. The Court’s Findings and Conclusions are not Supported by Legally Sufficient Evidence. . . . . . . . . . . . . . . . 29

1. Where Contract Claim Fails, Claim for Attorney’s Fees Fails. . . . . . . . . . . . . . . . . . . . . . . . . . . 30

2. There is no Evidence to Support Award of Attorney’s Fees Even if the Contract was Enforceable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

D. Conclusion to Issue No. 3.. . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Issue No. 4: When requested to do so, a trial court shall file any additional or amended findings and conclusions that are appropriate. Where Ali requested additional or amended findings of fact and conclusions of law to support their limitations defense, the trial court erred in failing to sign same.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

A. The Law Related to Additional Findings. . . . . . . . . . . . . . . . . 32

B. Trial Court’s Findings and Conclusions did not Address Ali’s Affirmative Defense of Limitations. . . . . . . . . . . 34

C. Ali’s Ability to Present Appeal Hindered by Trial Court’s Failure to File Additional Findings and Conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

v D. Conclusion to Issue No. 4.. . . . . . . . . . . . . . . . . . . . . . . . . . . 35

V. Conclusion and Prayer.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Appendix

vi INDEX OF AUTHORITIES

Cases Adams v. H & H Meat Prods., 41 S.W.3d 762 (Tex. App.--Corpus Christi 2001, no pet.). . . . . . . . . . . . . . . . . . . . 13

Advantage Physical Therapy, Inc. v. Cruse, 165 S.W.3d 21 (Tex. App.--Houston [14th Dist.] 2005, no pet.). . . . . . . . . . . . . . . . 22

Allamon Tool Co. v. Derryberry, 2007 Tex. App. LEXIS 8858 (Tex. App.--Beaumont 2007, no pet.).. . . . . . . . . . . . . . . . . . . . . . . 21

Anderson v. Vinson Exploration, 832 S.W.2d 657 (Tex. App.--El Paso 1992, writ denied). . . . . . . . . . . . . . . . . . . . . . 16

Angelou v. African Overseas Union, 33 S.W.3d 269 (Tex. App.--Houston [14th Dist.] 2000, no pet.)... . . . . . . . . . . . . . . 23

Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812 (Tex. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 31

Assoc. Tel. Directory Publishers v. Five D's Publishing Co., 849 S.W.2d 894 (Tex. App.--Austin 1993, no writ). . . . . . . . . . . . . . 32

Beal Bank, S.S.B. v. Schleider, 124 S.W.3d 640 (Tex. App.--Houston [14th Dist.] 2003, pet. denied). . . . . . . . . . . . . 24

Bennett v. Spectrum Constr., Inc., 2012 Tex. App. LEXIS 9629 (Tex. App.–Houston [1st Dist.] 2012, no pet.). . . . . . . . . . . . . . . . . . 19

Brockie v. Webb, 331 S.W.3d 135 (Tex. App.–Dallas 2010, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Buckeye Ret. Co., L.L.C. v. Bank of Am., N.A., 239 S.W.3d 394 (Tex. App.--Dallas 2007, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Catalina v. Blasdel, 881 S.W.2d 295 (Tex. 1994). . . . . . . . . . . . . . . . . . . 13

vii Christus Health v. Quality Infusion Care, Inc., 359 S.W.3d 719 (Tex. App.--Houston [1st Dist.] 2011, no pet.). . . . . . . . . . . . . . . . . 12

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005). . . . . . . . . . . . . . . . 25

City of McAllen v. Ramirez, 2013 LEXIS 8887 (Tex. App.--Corpus Christi) vacated on other grounds, 2013 Tex. App. LEXIS 13785 (Tex. App.--Corpus Christi 2013, no pet.) . . . . . . . . . . . . . . . . . . . . 33

Cohen v. McCutchin, 565 S.W.2d 230 (Tex. 1978) . . . . . . . . . . . . . . . . . 21

Coward v. Gateway Nat'l Bank, 525 S.W.2d 857 (Tex. 1975) . . . . . . . . . 30

CraneTex, Inc. v. Precision Crane & Rigging of Houston, Inc., 760 S.W.2d 298 (Tex. App.--Texarkana 1988, writ denied) . . . . . . 16

Croucher v. Croucher, 660 S.W.2d 55 (Tex. 1983). . . . . . . . . . . . . . . . . . 27

Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699 (1951). . . . . . . . . . . 22

Dow Chem. Co. v. Francis, 46 S.W.3d 237 (Tex. 2001). . . . . . . . . . . . . . 18

El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012). . . . . . . . . . . . . . . 31

Estate of Eberling v. Fair, 546 S.W.2d 329 (Tex. Civ. App.--Dallas 1976, writ ref'd n.r.e.). . . . . . . . . . . . . . . . . 20

Federal Sign v. Texas So. Univ., 951 S.W.2d 401 (Tex. 1997). . . . . . . . . 24

Ford Motor Co. v. Nowak, 638 S.W.2d 582 (Tex. App.–Corpus Christi 1982, writ ref’d n.r.e.). . . . . . . . . . . . . . . 11

Formosa Plastics Corp. USA v. Presidio Engr’s & Contractors, Inc., 960 S.W.2d 41 (Tex. 1998) 27

Foreman v. Graham, 363 S.W.2d 371 (Tex. Civ. App.--Beaumont 1962, no writ). . . . . . . . . . . . . . . . . . . . 17

viii Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Gaede v. SK Invs., Inc., 38 S.W.3d 753 (Tex. App.--Houston [14th Dist.] 2001, pet. denied) . . . . . . . . . . . . 22

Garrod Invs., Inc. v. Schlegel, 139 S.W.3d 759 (Tex. App.—Corpus Christi 2004, no pet.) . . . . . . . . . . . . . . . . 29, 31

Gen. Elec. Capital Corp. v. ICO, Inc., 230 S.W.3d 702 (Tex. App.--Houston [14th Dist.] 2007, pet. denied). . . . . . . . . . . . . 33

Geotech Energy Corp. v. Gulf States Telecom. and Info. Sys., Inc., 788 S.W.2d 386 (Tex. App.--Houston [14th Dist.] 1990, no writ). . . 16

Gerdes v. Mustang Exploration Co., 666 S.W.2d 640 (Tex. App.--Corpus Christi 1984, no writ. . . . . . . . . . . . . . . . . . . . . 24

Godde v. Wood, 509 S.W.2d 435 (Tex. Civ. App.–Corpus Christi 1974, writ ref’d n.r.e.). . . . . 15, 17, 35

Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91 (Tex 1999). . . . . . . . . . . . 27

Hubble v. Lone Star Contracting Corp., 883 S.W.2d 379 (Tex. App.–Fort Worth 1994, pet. denied). . . . . . . . . . . . . . . . . . . . 35

In re King’s Estate, 244 SW.2d 660, 661 (Tex. 1951).. . . . . . . . . . . . . . . 11

In Re Lesikar, 285 S.W.3d 3d 577 (Tex. App.–Houston [14th Dist] 2009, no pet.).. . . . . . . . . . . . . . . . . 27

In re R.D.Y., 51 S.W.3d 314 (Tex. App.–Houston [1st Dist.] 2001, pet. denied).. . . . . . . . . . . . . . 35

In the Interest of Striegler, 915 S.W.2d 629 (Tex. App.--Amarillo 1996, writ denied). . . . . . . . . . . . . . . . . . . . . . 30

ix Integrated of Amarillo, Inc. v. Pinkston-Hollar Constr. Servs., 2013 Tex. App. LEXIS 4216 (Tex. App.--Amarillo Apr. 2, 2013, pet. filed). . . . . . . . . . . . . . . 15, 34

Labor Ready Central L.P. v. Gonzalez, 64 S.W.3d 519 (Tex. App.--Corpus Christi 2001, no pet.). . . . . . . . . . . . . . . . . . . . 23

Levin Law Group, P.C. v. Sigmon, 2010 Tex. App. LEXIS 352 (Tex. App.--Houston [14th Dist.] 2010, pet. filed) . . . . . . . . . . . . . . 23

Loomis v. Republic Nat'l Bank, 653 S.W.2d 75 (Tex. App.--Dallas 1983, writ ref'd n.r.e.). . . . . . . . . . . . . . . . . . . . . 17

Luna v. Luna, 2011 Tex. App. LEXIS 3267, App.--Corpus Christi 2011, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . 23

MBM Fin. Corp. v. The Woodlands Operating Co., 292 S.W.3d 660 (Tex. 2009) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

McDonald v. Fox, 2012 Tex. App. LEXIS 9518 (Tex. App. Corpus Christi 2012, no pet.). . . . . . . . . . . . . . . . . . 29, 31

McNeil v. Pierce, 688 S.W.2d 209 (Tex. App.-El Paso 1985, writ ref'd n.r.e.). . . . . . . . . . . . . . . . . . . . 12

Meru v. Huerta, 136 S.W.3d 383 (Tex. App.--Corpus Christi 2004, no pet.). . . . . . . . . . . . . . . . . . . . 19

Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569 (Tex. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Moreno v. Sterling Drug, 787 S.W.2d 348 (Tex. 1990). . . . . . . . . . . . . . . 14

Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826 (Tex. 1990). . . . . . 14

Ocean Transp. v. Greycas, Inc., 878 S.W.2d 256, 267 (Tex. App.--Corpus Christi 1994, writ denied). . . . . . . . . . . . . . . . . 14

x O'Farrill Avila v. Gonzalez, 974 S.W.2d 237 (Tex. App.--San Antonio 1998, pet. denied).. . . . . . . . . . . . . . . . . . 20

Ortiz v. Jones, 917 S.W.2d 770 (Tex. 1996) . . . . . . . . . . . . . . . . . . . . . . 13

Pakdimounivong v. City of Arlington, 219 S.W.3d 401 (Tex. App.–Fort Worth 2006, pet. denied). . . . . . . . . . . . . . . . . . . . 35

Parker Drilling Co. v. Romfor Supply Co., 316 S.W.3d 68 (Tex. App.-- Houston [14th Dist.] 2010, pet. denied). . . . . . . . . . . . 23

PennWell Corp. v. Ken Associates, Inc., 123 S.W.3d 756 (Tex. App.—Houston [14th Dist] 2003, pet. denied).. . . . . . . . . . . . 12

Powers v. Adams, 2 S.W.3d 496 (Tex. App.--Houston [14th Dist.] 1999, no pet.). . . . . . . . . . . . . 12, 14

Rafferty v. Finstad, 903 S.W.2d 374 (Tex. App.--Houston [1st Dist.] 1995, writ denied) . . . . . . . . . . . . . 33

Rich v. Olah, 274 S.W.3d 878 (Tex. App.–Dallas 2008, no pet.) . . . . . . . . . . . . . . . . . . . . 13, 32, 33

Rizk v. Fin. Guard. Ins. Agency, Inc., 584 S.W.2d 860 (Tex. 1979). . 12, 14

SDN, Ltd. v. JV Rd., L.P., 2010 Tex. App. LEXIS 2206 (Tex. App.--Austin 2010, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Searcy v. DDA, Inc., 201 S.W.3d 319 (Tex. App.--Dallas 2006, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Ski River Development, Inc. v. McCalla, 167 S.W.3d 121 (Tex. App.--Waco 2005, pet. denied). . . . . . . . . . . . . . . . . . . . . 20, 22

Southwest Grain Co. v. Pilgrim's Pride S.A. de C.V., 2010 LEXIS 5014 (Tex. App.--Corpus Christi 2010, pet. denied). . . . . . . . . . . . . . 29, 31

State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430 (Tex. 1995). . . 29, 30

xi Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1 (Tex. 1991). . . . . . . . . 28

T. O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218 (Tex. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006). . . . . . 26

Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241 (Tex. App.--Houston [14th Dist.] 1999). . . . . . . . . . . . . . . . . . . 13, 33

Wayne v. A.V.A. Vending, Inc., 52 S.W.3d 412 (Tex. App.--Corpus Christi 2001, pet. denied). . . . . . . . . . . . . . . . . 27

Wibbenmeyer v. TechTerra Communs., Inc., 2010 LEXIS 2203 (Tex. App.--Austin 2010, pet. denied). . . . . . . . . . . . . . . . . . . . . . . 27

Winters v. Arm Refining Co., Inc., 830 S.W.2d 737 (Tex. App.--Corpus Christi 1992, writ denied). . . . . . . . . . . . . . . . . 13

Woods v. William M. Mercer, Inc., 769 S.W.2d 515 (Tex. 1988). . . . . . . . 12

Rules and Statutes TEX. BUS. & COM. CODE § 2.201(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

TEX. CIV. PRAC. & REM. CODE ANN. § 16.004(a) (3). . . . . . . . . . . . . . . 14, 34

TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8) . . . . . . . . . . . . . . . . . 30, 31

TEX. CIV. PRAC. & REM. CODE ANN. § 38.004. . . . . . . . . . . . . . . . . . . . . . . 30

TEX. R. APP. P. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

TEX. R. APP. P. 43.2.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

TEX. R. CIV. P. 94. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

TEX. R. CIV. P. 185. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 25

xii TEX. R. CIV. P. 298.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Secondary Authority BLACK'S LAW DICTIONARY 1510 (8th ed. 2004). . . . . . . . . . . . . . . . . . . . . . 20

RESTATEMENT (SECOND) OF CONTRACTS § 33(1) (1981). . . . . . . . . . . . . . . 22

RESTATEMENT (SECOND) OF CONTRACTS § 33(2) (1981). . . . . . . . . . . . . . . 22

xiii STATEMENT OF THE CASE

Nature of the Case: This is an appeal from a bench trial on a suit on sworn account/breach of contract claim. [CR 76]

Course of the Proceedings: Plaintiff filed its original petition [CR 4] and thereafter, Defendants moved for summary judgment based on limitations. [CR 33] After conducting a hearing on the motion, the trial court denied same [CR 69] and the case proceeded to trial.

The Trial Court’s Disposition: On October 17, 2014, the trial court conducted an evidentiary hearing, and entered judgment in favor of Plaintiff on December 3, 2014. [CR 70]

xiv ISSUES PRESENTED

1. Claims for breach of a construction contract must be instituted within four years of the date the work was substantially completed. Where the great weight and preponderance of the evidence established the date the work was substantially completed to be more than four years prior to the date suit was filed, the trial court erred in entering judgment for FEI. (Germane to FF # 2, 3, 4, 5, and 6 and CL # 1 and Requested Amended FF # 1, 3, 4, CL 1, 2 and 3)

2. In order to prevail on a breach of contract action, the agreement must be in writing and signed by the person against whom liability is sought. Where there was no evidence of a contract in writing, signed by Ali, the trial court erred in entering judgment against them. . (Germane to FF # 2, 3, 4, 5, and 6 and CL # 1 )

3. To be entitled to attorney’s fees there must be a statute or contract authorizing the award of attorney’s fees and there must be evidence to support the amount of attorney’s fees requested. Where the record is devoid of any evidence to support the award of attorney’s fees, the trial court erred in awarding FEI attorney’s fees in the amount of $4,500.00 (Germane to Requested Amended FF # 1, 3, 4, CL 1, 2 and 3)

4. When requested to do so, a trial court shall file any additional or amended findings and conclusions that are appropriate. Where Ali timely requested additional or amended findings of fact and conclusions of law to support their limitations defense, the trial court erred in failing to sign same. (Germane to Requested Additional Findings and Conclusions [Supp. CR 6-7)

xv NO. 13-15-00095-CV

IN THE COURT OF APPEALS FOR THE THIRTEENTH JUDICIAL DISTRICT CORPUS CHRISTI, TEXAS

Appeal from Cause No. 13-03-22,628 In the District Court of DeWitt County, Texas; 135th Judicial District _____________________________________________________

APPELLANTS’ BRIEF _____________________________________________________

TO THE HONORABLE JUSTICES OF SAID COURT:

COME NOW the Appellants, Nadir N. Ali and Mumtaz Ali (collectively

referred to as “Ali,”) and pursuant to the authority of TEX. R. APP. P. 38, file

their Appellants’ Brief, respectfully showing the Court the trial court erred in

entering judgment in favor of Appellee Flessner Enterprises, Inc. (“FEI”). I. PROCEDURAL BACKGROUND

This is a breach of contract/suit on sworn account case filed on March

28, 2013 by FEI against Ali for electrical work performed by FEI on a building

owned by Ali [CR 2]. According to FEI’s verified Original Petition, the last date

FEI performed work for Ali was March 16, 2009. [CR 15]

Ali filed an Original Answer [CR 30] asserting a general denial, a verified

denial of the claim, and the affirmative defenses of limitations, laches and

statute of frauds. Ali filed a motion for summary judgment, asserting the four-

year statute of limitations barred FEI’s claim. [CR 33-34] FEI filed a response,

claiming the last date of services provided to Ali fell within the four-year

limitations period. [CR 63]

The trial court denied Ali’s motion for summary judgment [CR 69] and

the case proceeded to trial. After the conclusion of testimony, the court

entered judgment on December 3, 2014 in favor of FEI in the amount of

$145,543.37, and awarded attorney’s fees in the amount of $4,500. [CR 70]

Ali timely filed a request for findings of fact and conclusions of law. [CR

72] When same were not signed, Ali filed a Notice of Past Due Findings of

Fact and Conclusions of Law. [CR 74] The findings of fact and conclusions of

law were signed on February 6, 2015. [Supp. CR 4]

2 TEX. R. CIV. P. 298 requires that any additional or amended findings of

fact and conclusions of law shall be filed within ten days of the date the trial

court filed the original findings of fact and conclusions of law. Because the

filed findings and conclusions did not address any of the affirmative defenses

pled and proved by Ali, Ali prepared and timely1 filed a Request for Additional

Findings of Fact and Conclusions of Law and attached proposed findings.

[Supp. CR 6, 8] The only objection raised by FEI to the requested additional

findings and conclusions addressed the date services were last provided by

FEI to Ali. [Supp. CR 10]

Ali filed their Notice of Appeal on February 19, 2015. [CR 76]

II. STATEMENT OF FACTS

Rodney Flessner (“Flessner”) is the owner of FEI. (RR 6)2 In 2009 and

prior thereto, Flessner had provided electrical services and goods to Ali at

FasTrak Express. (RR 6) Flessner stated that on March 30, 2009, he provided

a bill to Ali for the electrical work done at FasTrak. (RR 7) (Pl. Ex. 1)[CR 40-

62] The bill contained a summary on page one, followed by invoices showing

the hours worked, by whom, and what materials were used on the job. (RR

7-8)

1 See Request for Additional Findings of Fact and Conclusions Law [Supp. CR 8, fn 1] (Apx. Tab 3) 2 All “RR” record references are to volume 2 of 3 of the reporter’s record. 3 Flessner stated he had kept a record of the work as the job progressed,

that this is done in the normal course of his business, and the items on the

invoices reflect the goods and services that were rendered to Ali at the

FasTrak store. (RR 8) He further stated the account was just and true and

that all offsets and payments made had been credited. (RR 9) Flessner kept

a systematic record of the time and materials and that such time and

materials were reflected in Plaintiff’s Exhibit 1. (RR 17)

Pursuant to the invoices, materials totaled $50,045.64; (RR 9) labor

costs were $95,920.25; sales tax equaled $12,042.19. (RR 10) The total

amount of the bill was $145,543.37. (RR 10)

Flessner confirmed the last date billed for labor was March 16, 2009.

(RR 11) Flessner hedged that date by stating he performed other services,

such as warranty work and “punch list things” through June of 2009. (RR 11)

However, any worked performed by FEI past March 16, 2009 was not charged

to Ali. (RR 11)

Plaintiff’s Exhibit 2, admitted over Ali’s objection, (RR 30) is a flashdrive

containing 62 pictures. When asked what date the photographs were taken,

Flessner stated, “if I have to guess, sir, educated guess, I would say probably

the latter part of 2006.” (RR 30)

4 Prior to the March 30, 2009 bill, Flessner had previously sent Ali a bill

on February 25, 2007 in the amount of $7,535.29. [CR 41]3 This bill was paid.

(RR 33) No other bill was generated until the March 30, 2009 bill.4 (RR 3) Also

part of Pl. Ex. 1 is the “time sheet for Fastrak Express – Daily Log.” [CR 42,

44-62] Flessner did not prepare the entries as they occurred. Instead, he

prepared the entries at the end of the job, when the work was completed; the

entries were all made on the same day. (RR 36)

Flessner did not prepare a written estimate of the work to be performed;

there was no written contract. (RR 38) It was a “handshake” deal. (RR 38)

Although Flessner stated he told Ali labor for the project would run around

$3,000 per week, (RR 43) a price for the contract as a whole was not

discussed. (RR 38)

With respect to the “parts” portion of the invoice, Flessner admitted

there were no dates on the invoice referencing when the parts were used.

(RR 41) The last day of work performed, as noted on the invoice, was March

16, 2009. [CR 48] He further admitted that FEI never sent Ali a demand letter.

(RR 47)

3 See Additional Findings of Fact, No. 3. [Supp. CR 6] 4 See Additional Findings of Fact, No. 2. [Supp. CR 6] 5 FEI rested its case and Nadir Ali was called to testify. He owned the

FasTrak Express store where FEI performed the work in question for about

three years. (RR 49) After he had purchased the store, Ali hired FEI to

perform electrical work such as redoing the wiring. (RR 49) This electrical

work was performed in conjunction with a complete overhaul of the store

performed by other trades people. (RR 49-50)

FEI had previously provided electrical services to Ali in Port Lavaca and

in Cuero. They had disputes regarding payment on those jobs as well, and

FEI filed suit against Ali. Ali believed FEI had overcharged him. Ultimately,

a settlement was reached. (RR 50) Knowing their previous history, Ali and

Flessner discussed the price FEI was going to charge him. (RR 50) Flessner

told Ali the price would be between $40,000-$45,000. (RR 51) This was the

price for the complete job – labor and materials. (RR 51) When Ali questioned

the amount, Flessner stated it was the highest amount that would be charged,

but it could be less. (RR 51) Ali confirmed Flessner’s testimony their

agreement was not reduced to writing. (RR 51)

Ali came to look at the progress of the work on the store at least four

times a week. The scope of the project never changed and Ali stated he

never asked FEI to make additions or redo anything that had been previously

done. (RR 55-56; 64-66) Ali did question Flessner as to why the project was

6 taking so long. Every time Ali came into town he would go by the store and

would not see anyone working. Contrary to the entries made by Flessner on

the work log, Ali testified he never saw anybody working on a Saturday or

Sunday. (RR 56-57)

When questioned about FEI’s billing, Ali stated he never saw the

February 25, 2007 bill; he only saw the final bill. (RR 52) Ali said that if

Flessner had given the bill to an employee of the store, the employee would

have certainly given it to Ali. (RR 53) With respect to Flessner’s statement

that he had faxed a copy of the bill to Ali at Ali’s other convenience store, the

Get N Go in Cuero, Ali had already sold that store in 2007, so he would not

have received a fax from FEI in March or April of 2009. (RR 54) Ali stated he

never saw the 27-page invoice of parts and materials until he was served with

the lawsuit. (RR 57)

After the work was performed, but before suit was filed, Ali met Flessner

in 2012 on the street in Cuero; Flessner had seen Ali and stopped him to

discuss the bill. (RR 55) Ali questioned him about the size of the bill. Flessner

responded that the account could be settled on the side, without the

involvement of attorneys and Ali could make payments. (RR 55)

Prior to the work being completed, Ali paid FEI $20,000 on the project

– $5,000 each on July 20, 2007; August 3, 2007; January 31, 2008; and

7 February 25, 2008. (RR 57-58) Ali paid this money without receiving an

invoice from FEI because Flessner had asked him for money to make his loan

payment and because Flessner had quoted him $40,000-$45,000 for the job.

Ali did not mind paying half of the quoted price so that FEI could finish up the

job – it had taken so long already. (RR 58) Ali paid Flessner in person, by

check, each time. Thereafter, Flessner never asked Ali for more money. (RR

58)

The store finally opened August 9, 2008. (RR 59) About four months

later, Ali went to Flessner to ask what was the final bill. Flessner told him he

had not finished the paperwork, but when it was completed he would bring it

to Ali. At that time, Ali felt the most he would owe FEI was another $25,000.

(RR 59)

Ali denied that he and Flessner had a deal for Ali to pay $3,000 per

week for labor. (RR 59; 66) Nor did he have an arrangement to pay Flessner

or any of FEI’s employees on an hourly basis. (RR 59) It was Ali’s

understanding that the job was a flat fee – no more than $45,000. (RR 60) Ali

denied that Flessner ever told him the bill was already $120,000 in 2008. (RR

67) Until Ali received the final bill, he had no idea the bill had quadrupled from

the original quote. (RR 69)

8 When Ali reviewed the timesheet prepared by Flessner showing the

dates and times for labor, he questioned the accuracy of the document. He

stated that when he would come in from Austin (at least four times per week),

he never saw people working at the store at 6:30 or 7:00 in the morning.

Sometimes someone would show up at 10:00 a.m. and then disappear after

lunch. (RR 61) No one was ever there on a Saturday or Sunday. He also

questioned the entries where Flessner stated an employee had worked

eleven hours straight without a break. This occurred on more than one

occasion. (RR 62)

FEI called Flessner in rebuttal. He denied he ever quoted Ali a price of

not more than $45,000. (RR 71-72) Flessner further contradicted Ali’s

testimony that there were no changes made to work already performed. (RR

73-74) Flessner did concede, again, that there was no contract for the work

performed – “We had a handshake deal.” (RR 75) Flessner also stated: “I

never spoke of a dollar amount period with Mr. Ali.” (RR 72)

Ali was also called in rebuttal. He stated he specifically recalled the

conversation with Flessner wherein Flessner stated he would charge no more

than $45,000 and that he “would be reasonable” with Ali. (RR 76)

III. SUMMARY OF THE ARGUMENT

The trial court erred in granting judgment in favor of FEI for three

9 reasons. First, the great weight and preponderance of the evidence

established that FEI filed suit against Ali more than four years after the last

date the project was substantially completed. Second, there was no evidence

of a written contract, signed by Ali, that bound him to pay FEI for any

materials or services. Third, without a valid contract, the award of attorney’s

fees was in error.

At Ali’s request, the court signed findings of fact and conclusions of law.

[Supp. CR 4] Because none of the findings addressed Ali’s affirmative

defenses, Ali requested additional findings of fact and conclusions of law,

[Supp. CR 8] and provided the court with proposed additional findings and

conclusions. [Supp. CR 6] The trial court failed to sign the additional findings

and conclusions. It was error for the court not to do so because the additional

findings and conclusions would have resulted in a different judgment.

IV. ARGUMENT AND AUTHORITIES

Ali presents the Court with the following issues, arguments and

authorities in support of their claim the trial court’s judgment should be

reversed and rendered.

Issue No. 1: Claims for breach of a construction contract must be instituted within four years of the date the work was substantially completed. Where the great weight and preponderance of the evidence established the last date the work was substantially completed was more than four years

10 prior to the date suit was filed, the trial court erred in entering judgment for FEI. (Germane to FF # 2, 3, 4, 5 and 6 and CL #1; Proposed Additional FF # 1, 2, 3, and 4 and CL # 1, 2 and 3)

The presented issue can be resolved by answering a single question –

When did FEI’s cause of action against Ali accrue for limitation purposes?

The answer is provided by FEI’s invoice and Flessner’s own testimony –

March 16, 2009.

A. STANDARD OF REVIEW AND BURDEN OF PROOF

In reviewing an issue asserting that a finding is against the great weight

and preponderance of the evidence, both the evidence that tends to prove the

existence of a vital fact, as well as evidence that tends to disprove its

existence, is considered. Ford Motor Co. v. Nowak, 638 S.W.2d 582, 585

(Tex. App.–Corpus Christi 1982, writ ref’d n.r.e.). If a court’s finding is so

contrary to the great weight and preponderance of the evidence as to be

manifestly unjust, the point should be sustained, regardless of whether there

is some evidence to support it. In re King’s Estate, 244 SW.2d 660, 661

(Tex. 1951).

The statute of limitations is an affirmative defense. TEX. R. CIV. P. 94.

As such, Ali bore the initial burden to plead, prove, and secure findings to

sustain their plea of limitations. Woods v. William M. Mercer, Inc., 769

11 S.W.2d 515, 517 (Tex. 1988); Christus Health v. Quality Infusion Care,

Inc., 359 S.W.3d 719, 722 (Tex. App.--Houston [1st Dist.] 2011, no pet.).

B. FEI NOT ENTITLED TO THE EVIDENTIARY PRESUMPTION OF A SUIT ON SWORN ACCOUNT

Although not referencing the rule, it is uncontroverted that FEI filed its

complaint against Ali based on a suit on sworn account under TEX. R. CIV. P.

185. "Rule 185 is not a rule of substantive law, but is a rule of procedure with

regard to evidence necessary to establish a prima facie right of recovery. Rizk

v. Financial Guardian Ins. Agency, Inc., 584 S.W.2d 860, 862 (Tex. 1979);

McNeil v. Pierce, 688 S.W.2d 209, 210 (Tex. App.-El Paso 1985, writ ref'd

n.r.e.). Indeed, Rule 185 is described as "a rule of evidence only, which . . .

allows the plaintiff to avoid the necessity of proving the correctness of the

account." PennWell Corp. v. Ken Associates, Inc., 123 S.W.3d 756 (Tex.

App.—Houston [14th Dist] 2003, pet. denied).

As applied to this case, because Ali filed a sworn denial of FEI’s claim,

"the evidentiary effect of the itemized account is destroyed and [FEI] is forced

to put on proof of its claim." Rizk, 584 S.W.2d at 862; Powers v. Adams, 2

S.W.3d 496, 498 (Tex. App.--Houston [14th Dist.] 1999, no pet.). Boiled down

to its essence, FEI’s claim is basically one for breach of an oral contract.

C. EFFECT OF TRIAL COURT’S FINDINGS OF FACT WHERE PRIMA FACIE RIGHT TO RECOVERY IS DEFEATED

12 Findings of fact entered in a case tried to a court are of the same force

and dignity as a jury's verdict on jury questions. Catalina v. Blasdel, 881

S.W.2d 295, 297 (Tex. 1994); Adams v. H & H Meat Prods., 41 S.W.3d 762,

769 (Tex. App.--Corpus Christi 2001, no pet.). This Court applies the same

standards in reviewing the legal and factual sufficiency of the evidence

supporting the trial court's fact findings as it does when reviewing the legal

and factual sufficiency of the evidence supporting a jury's answer to a jury

question. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam);

Winters v. Arm Refining Co., Inc., 830 S.W.2d 737, 739 (Tex. App.--Corpus

Christi 1992, writ denied). Specifically, the Court will indulge every reasonable

presumption in favor of the findings and judgment of the trial court, and no

presumption will be indulged against the validity of the judgment. Rich v.

Olah, 274 S.W.3d 878, 883-884 (Tex. App.–Dallas 2008, no pet.) (citing

Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 252 (Tex.

App.--Houston [14th Dist.] 1999)).

The problem in this case is that the trial court’s FF # 2-6 and CL # 1 only

confirmed that FEI had properly pled the elements necessary to establish a

suit on sworn account, thereby requiring Ali to file a sworn denial, which he

did. [CR 30] Applying the holdings of Rizk and Powers, supra, the

evidentiary value of pleading the sworn account elements was negated by

13 Ali’s sworn denial. Thus, the trial court’s findings #2-6 are irrelevant.

Ali’s requested Additional Findings of Fact and Conclusions of Law are

relevant and should have been signed by the trial court. Specifically, FF #3:

“Plaintiff last provided materials for use on and installation in Defendants’

property no later than February 25, 2007.”; FF #4: “Plaintiff last provided labor

in relation to the installation of the materials no later than March 16, 2009.”;

and FF #1: “Plaintiff filed suit against Defendants on March 28, 2013.” [Supp.

CR 6]

D. THE STATUTE OF LIMITATIONS BARRED FEI’S CLAIM

The Texas Civil Practice and Remedies Code addresses when a plaintiff

must bring suit for various causes of action. It provides “A person must bring

suit on the following actions not later than four years after the day the cause

of action accrues [for] debt.” TEX. CIV. PRAC. & REM. CODE ANN. § 16.004(a)

(3). The question of when a cause of action accrues is a question of law for

the court to decide. Moreno v. Sterling Drug, 787 S.W.2d 348, 351 (Tex.

1990). A cause of action generally accrues at the time when facts come into

existence which authorize a claimant to seek a judicial remedy. Murray v.

San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990); Ocean

Transp. v. Greycas, Inc., 878 S.W.2d 256, 267 (Tex. App.--Corpus Christi

1994, writ denied).

14 Typically, construction is performed under a continuing contract. In this

type of contract, the performance contemplated and payment for same is

divided into several parts, or where the work is continuous and indivisible, the

payment for work is made in installments as the work is performed. Godde v.

Wood, 509 S.W.2d 435, 441 (Tex. Civ. App.–Corpus Christi 1974, writ ref’d

n.r.e.). Limitations begins to run on a continuing contract at the earlier of the

following: (1) when the work is completed; (2) when the contract is terminated

in accordance with its terms; or (3) when the contract is anticipatorily

repudiated by one party and this repudiation is adopted by the other party.

Integrated of Amarillo, Inc. v. Pinkston-Hollar Constr. Servs., 2013 Tex.

App. LEXIS 4216, 5-6 (Tex. App.--Amarillo Apr. 2, 2013, pet. filed); Godde,

509 S.W.2d at 441.

The question then becomes, when was the work completed so as to

trigger the running of statute of limitations?

1. FEI’s substantial completion triggered the running of the statute of limitations on March 16, 2009

FEI will undoubtedly argue that it provided services to Ali up until June

2009 and that its Original Petition, filed on March 28, 2013 [CR 4] is therefore

timely. (See Objection to Requested Additional Findings of Fact and

Conclusions of Law [Supp. CR 10]) However, Flessner’s own testimony, as

15 well as the documentary evidence, established that the work at FasTrak was

substantially completed on March 16, 2009.

"Substantial performance" means that the essential elements of a

contract have been performed and is the legal equivalent to full performance.

Geotech Energy Corporation v. Gulf States Telecommunications and

Information Sys., Inc., 788 S.W.2d 386, 390 (Tex. App.--Houston [14th Dist.]

1990, no writ); CraneTex, Inc. v. Precision Crane & Rigging of Houston,

Inc., 760 S.W.2d 298, 302 (Tex. App.--Texarkana 1988, writ denied) (cited by

Anderson v. Vinson Exploration, 832 S.W.2d 657, 666 (Tex. App.--El Paso

1992, writ denied).

Flessner admitted the last date billed for labor was March 16, 2009. (RR

11) (Pl. Ex. 1) Flessner then equivocated, claiming he performed other

services, such as warranty work and “punch list things” through June of 2009.

(RR 11) However, any work performed past March 16, 2009 was at no

additional charge. (RR 11)

A review of Pl. Ex. 1 (also provided in the Clerk’s Record) shows that

the date services were last provided by FEI was “3-16-09.” [CR 48] With

respect to the parts and/or materials used, Flessner admitted there were no

dates on the invoice referencing when the parts were used. (RR 41)

The foregoing establishes that FEI substantially completed the work for

16 Ali on or before March 16, 2009. It was at this time that its right to be paid by

Ali occurred and the statute of limitations began to accrue. As such, FEI was

required to file suit on or before March 16, 2013. It did not do so and its claim

was barred by limitations.

2. Demand for Payment does not Trigger the Statute of Limitations

FEI might also argue that limitations did not begin to run until FEI made

a demand for payment upon Ali by sending him a bill on March 30, 2009. The

trial court made no finding of fact or conclusion of law indicating demand was

a condition precedent to FEI’s ability to sue or an integral part of its cause of

action. Consequently, demand was unnecessary for the statute to begin

running. See Loomis v. Republic Nat'l Bank, 653 S.W.2d 75, 77 (Tex.

App.--Dallas 1983, writ ref'd n.r.e.); Godde, 509 S.W.2d at 443; Foreman v.

Graham, 363 S.W.2d 371, 372 (Tex. Civ. App.--Beaumont 1962, no writ).

Moreover, Flessner admitted that FEI never sent Ali a demand letter. (RR 47)

E. CONCLUSION TO ISSUE NO. 1

The trial court erred in entering judgment against Ali because FEI’s

claim was barred by the applicable four-year statute of limitations. The

evidence was uncontroverted that FEI’s work for Ali at the FasTrak was

substantially completed on March 16, 2009, and it did not file suit until March

17 28, 2009, almost two weeks after the statute of limitations had expired.

Ali asks the Court to sustain their first issue, reverse the judgment of the

trial court and render judgment that FEI take nothing on its claim.

Issue No. 2: In order to prevail on a breach of contract action, the agreement must be in writing and signed by the person against whom liability is sought. Where there was no evidence of a contract in writing, signed by Ali, the trial court erred in entering judgment against them. (Germane to FF # 2, 3, 4, 5 and 6 and CL #1)

The second reason the trial court erred in entering the complained of

judgment is that the agreement violated the statute of frauds, TEX. BUS. &

COM. CODE ANN. § 2.201(a), and the parties’ oral agreement was not specific

enough to be enforceable.

A. STANDARD OF REVIEW

When an appellant complains of the legal sufficiency of the evidence

supporting an adverse finding on a matter on which the appellant had the

burden of proof, it must show the evidence establishes, as a matter of law, all

vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237,

241 (Tex. 2001). In reviewing a "matter of law" challenge, the Court first

examines the record for evidence supporting the finding, and then examines

the entire record to determine if the contrary proposition is established as a

matter of law. Id. The issue is sustained only if the contrary proposition is

18 conclusively established. Id. In this case, there is no evidence to support an

implied finding of a contract in writing and the record establishes the contrary

position.

B. NO FINDINGS WITH RESPECT TO THE STATUTE OF FRAUDS

Neither party requested findings of fact with respect to the application

of the statute of frauds. As such, this Court infers all facts necessary to

support the judgment if they are supported by the evidence. See Moki Mac

River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007). Bennett v.

Spectrum Constr., Inc., 2012 Tex. App. LEXIS 9629, *2-3 (Tex.

App.–Houston [1st Dist.] 2012, no pet.). The implied finding in this case is that

there was a written contract or agreement between the parties signed by Ali.

C. THE STATUTE OF FRAUDS APPLIES TO BAR FEI’S ABILITY TO RECOVER DAMAGES

The Texas Business and Commerce Code provides:

Except as otherwise provided in this section a contract for the sale of goods for the price of $ 500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. . . .

TEX. BUS. & COM. CODE § 2.201(a). Whether an agreement is an enforceable

contract is generally a question of law. Meru v. Huerta, 136 S.W.3d 383, 390

(Tex. App.--Corpus Christi 2004, no pet.).

19 1. No Contract in Writing

For an agreement to be legally binding, the contract's terms must be

sufficiently definite to enable a court to understand what the promisor

undertook. Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d

831, 846 (Tex. 2000); T.O. Stanley Boot Co. v. Bank of El Paso, 847

S.W.2d 218, 221 (Tex. 1992). If the court is unable to determine the parties'

rights and obligations, there is no enforceable contract. See Searcy v. DDA,

Inc., 201 S.W.3d 319, 322 (Tex. App.--Dallas 2006, no pet.); Estate of

Eberling v. Fair, 546 S.W.2d 329, 335 (Tex. Civ. App.--Dallas 1976, writ ref'd

n.r.e.); see also T. O. Stanley Boot Co., 847 S.W.2d at 221 (no binding

contract if an essential term is left open for future negotiation; before a court

can enforce the contract, the parties must agree to the contract's material

terms).

"Material terms" is defined as "contractual provision[s] dealing with a

significant issue such as subject matter, price, payment, quantity, quality,

duration, or the work to be done." BLACK'S LAW DICTIONARY 1510 (8th ed.

2004). Courts have implied material terms when the surrounding

circumstances left little doubt as to the parties' intentions. See Ski River

Development, Inc. v. McCalla, 167 S.W.3d 121, 134 (Tex. App.--Waco

2005, pet. denied); O'Farrill Avila v. Gonzalez, 974 S.W.2d 237, 244 (Tex.

20 App.--San Antonio 1998, pet. denied). That cannot be done in the present

case because there were no terms at all. Neither the trial judge nor this Court

may supply essential terms that the parties did not or could not agree upon.

As a matter of law, the oral agreement is not a valid, enforceable contract.

Allamon Tool Co. v. Derryberry, 2007 Tex. App. LEXIS 8858, *7 (Tex. App.-

-Beaumont 2007, no pet.).

To satisfy the statute of frauds, "there must be a written memorandum

which is complete within itself in every material detail, and which contains all

of the essential elements of the agreement, so that the contract can be

ascertained from the writings without resorting to oral testimony." Cohen v.

McCutchin, 565 S.W.2d 230, 232 (Tex. 1978) (cited by SDN, Ltd. v. JV Rd.,

L.P., 2010 Tex. App. LEXIS 2206, *8 (Tex. App.--Austin 2010, no pet.).

In this case, oral testimony was adduced with respect to the contract.

Flessner stated he did not prepare a written estimate of the work to be

performed by FEI. (RR 38) He further conceded there was no written contract,

and a price for the job was not discussed. (RR 38) In Flessner’s words, “It

was a handshake deal.” (RR 38) Ali contradicted Flessner’s testimony

regarding price by stating Flessner told him the price would be between

$40,000-$45,000. (RR 51) Ali agreed there was no written contract. (RR 51)

Flessner’s oral testimony was required to establish the contract price as

21 set forth in Exhibit 1. Ali’s oral testimony contradicted Flessner’s testimony.

Because no price was ever established and the testimony was conflicting as

to price, in the absence of a written contract, the agreement is unenforceable

under the statute of frauds.

2. Oral Contract not Sufficiently Specific

The rules regarding indefiniteness of material terms of a contract are

based on the concept that a party cannot accept an offer to form a contract

unless the terms of that contract are reasonably certain. RESTATEMENT

(SECOND) OF CONTRACTS § 33(1) (1981); Ski River Dev., Inc., 167 S.W.3d at

133 (Tex. App.--Waco 2005, pet. denied). The Restatement further asserts

that contract terms are reasonably certain "if they provide a basis for

determining the existence of a breach and for giving an appropriate Remedy."

RESTATEMENT (SECOND) OF CONTRACTS § 33(2) (1981). This conforms to the

policy that the parties, and not the courts, should make contracts. However,

a court may not create a contract where none exists and they generally may

not interpolate or eliminate material terms. Dahlberg v. Holden, 150 Tex.

179, 238 S.W.2d 699, 701 (1951).

Whether the parties reached an agreement is a question of fact.

Advantage Physical Therapy, Inc. v. Cruse, 165 S.W.3d 21, 24 (Tex.

App.--Houston [14th Dist.] 2005, no pet.). Whether an agreement is legally

22 enforceable, however, is a question of law. See Id.; Gaede v. SK Invs., Inc.,

38 S.W.3d 753, 757 (Tex. App.--Houston [14th Dist.] 2001, pet. denied) (both

cited by Parker Drilling Co. v. Romfor Supply Co., 316 S.W.3d 68, 72 (Tex.

App.-- Houston [14th Dist.] 2010, pet. denied)).

a. Elements Necessary for Contract Formation

This Court recently outlined the elements for a valid and binding

contract, to wit: (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. Luna v. Luna, 2011 Tex. App. LEXIS 3267, *7-8 (Tex. App.--

Corpus Christi 2011, no pet.) (citing Labor Ready Central L.P. v. Gonzalez,

64 S.W.3d 519, 522 (Tex. App.--Corpus Christi 2001, no pet.)). To create an

enforceable contract, there must be a clear and definite offer followed by a

clear and definite acceptance in accordance with the offer's terms. See Levin

Law Group, P.C. v. Sigmon, 2010 Tex. App. LEXIS 352 at *3 (Tex.

App.--Houston [14th Dist.] 2010, pet. filed) (mem. op.); Angelou v. African

Overseas Union, 33 S.W.3d 269, 278 (Tex. App.--Houston [14th Dist.] 2000,

no pet.).

The elements of written and oral contracts are the same and must be

present for a contract to be binding. Luna, 2011 Tex. App. LEXIS 3267 at *8.

23 Where an essential term is open for future negotiation, there is no binding

contract. Beal Bank, S.S.B. v. Schleider, 124 S.W.3d 640, 653 (Tex. App.-

-Houston [14th Dist.] 2003, pet. denied); Gerdes v. Mustang Exploration

Co., 666 S.W.2d 640, 644 (Tex. App.--Corpus Christi 1984, no writ).

Consideration is also a fundamental element of a valid contract. Federal Sign

v. Texas So. Univ., 951 S.W.2d 401, 408-09 (Tex. 1997).

b. Testimony Established All Elements for Contract Formation not Present

The parties agree there was an oral contract for FEI to install new

electrical wiring at the FasTrak store. Both Flessner and Ali testified as to

such. However, none of the terms were agreed upon. There was never a

specific offer by FEI or an acceptance by Ali. As is clear by the testimony of

Flessner (there was no set price; price was not discussed) and Ali (the price

would be no greater than $45,000), and the actual bill submitted by FEI

($145,543.37), there was not a meeting of the minds, nor did each party

consent to the terms. This conflicting evidence also establishes there was no

consideration discussed or given. Simply put, no enforceable contract was

ever formed between FEI and Ali and the trial court erred in entering judgment

for FEI.

D. THE TESTIMONY ESTABLISHES PROPOSITIONS CONTRARY TO THE COURT’S FINDINGS AND CONCLUSIONS

24 The trial court’s FF #5 and #6 and CL #1 are not supported by legally

sufficient evidence. A no evidence point of error must be sustained when the

record discloses one of the following: (1) evidence of a vital fact is completely

absent; (2) the court is barred by rules of law or evidence from giving weight

to the only evidence offered to prove a vital fact; (3) the evidence offered to

prove a vital fact is no more than a mere scintilla of evidence; or (4) the

evidence establishes conclusively the opposite of a vital fact. City of Keller

v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).

As stated above, evidence of vital facts (price, terms of

payment, quantity, quality, duration, or the work to be done) were omitted

from the parties’ oral agreement. Both Flessner and Ali admitted there was

no contract in writing; indeed, Flessner termed it a “handshake deal.” Thus,

there is no evidence that Ali “promised and became bound and liable to pay

[FEI] for said goods and services” (FF #5). Nor is there any evidence that Ali

agreed to pay FEI the sum of $145,543.37, the amount found by the trial court

to be due and owing to FEI (FF #6, CL #15 ); an amount that is three-and-a-

half times6 the amount Flessner told Ali the job would cost. (RR 51)

5 Ali reasserts his contention that FF #5 and #6 and CL #1 merely support the elements of a suit on sworn account claim. By filing a sworn denial, Ali negated the evidentiary affect of Rule 185 and put FEI to its proof. As such, these findings of fact and conclusion of law are not controlling. 6 Finding of Fact No. 6 provides the original bill was $158,008.08. 25 E. CONCLUSION TO ISSUE NO. 2

The adduced testimony, both from Flessner and Ali, was that there was

not a contract in writing. The lack of a written contract places the agreement

squarely within the statute of frauds and negates the trial court’s judgment. In

addition, the oral agreement lacks the specificity and definiteness required for

even an oral contract to be enforceable.

Ali asks the Court to sustain their Issue No. 2, find the oral agreement

unenforceable as violative of the statute of frauds. Ali asks the Court to

reverse and render judgment that FEI take nothing by its claim. In the

alternative, Ali asks the Court to find the contract price was $45,000, give Ali

credit for the $20,000 he previously paid, and reverse and render judgment

that Ali owes FEI the sum of $25,000.

Issue No. 3: To be entitled to attorney’s fees there must be a statute or contract authorizing the award of attorney’s fees and there must be evidence to support the amount of attorney’s fees requested. Where the record is devoid of any evidence to support the award of attorney’s fees, the trial court erred in awarding FEI attorney’s fees in the amount of $4,500.00 (Germane to FF #7 and CL #2)

"Texas has long followed the 'American Rule' prohibiting [attorney's] fee

awards unless specifically provided by contract or statute." MBM Fin. Corp.

v. The Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009) (citing

Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310-11 (Tex. 2006));

26 Wayne v. A.V.A. Vending, Inc., 52 S.W.3d 412, 417 (Tex. App.--Corpus

Christi 2001, pet. denied). Moreover, an award of attorney’s fees must be

supported by sufficient evidence. Wibbenmeyer v. TechTerra Communs.,

Inc., 2010 Tex. App. LEXIS 2203, *10 (Tex. App.--Austin 2010, pet. denied).

Because Ali is challenging the legal sufficiency of the evidence to

support a finding on which they did not have the burden of proof at trial, they

must demonstrate that no evidence exists to support the adverse finding.

Brockie v. Webb, 331 S.W.3d 135, 138 (Tex. App.–Dallas 2010, no pet.)

(discussing standard for addressing challenges to legal and factual sufficiency

of attorney’s fees) (citing Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.

1983)). When reviewing the record, this Court is to determine whether any

evidence supports the award of attorney’s fees. Id. If more than a scintilla of

evidence exists, the legal sufficiency challenge fails. Id. (citing Formosa

Plastics Corp. USA v. Presidio Engr’s & Contractors, Inc., 960 S.W.2d 41,

48 (Tex. 1998)).

Issues concerning the availability of attorney’s fees under statute or

contract present questions of law that this Court reviews de novo. See

Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex 1999); In Re

Lesikar, 285 S.W.3d 3d 577, 583 (Tex. App.–Houston [14th Dist] 2009, no

27 pet.).

B. LAW RELATING TO ATTORNEY’S FEES

Even where a statute or contract permits the award of attorney’s fees,

there must still be sufficient evidence to support the amount of the attorney

fee award. "As a general rule, the party seeking to recover attorney's fees

carries the burden of proof." Stewart Title Guar. Co. v. Sterling, 822 S.W.2d

1, 10 (Tex. 1991). A determination of reasonable attorneys' fees is a question

for the trier of fact. Id. at 12. Factors that a fact finder should consider when

determining the reasonableness of a fee include: (1) the time and labor

required, the novelty and difficulty of the questions involved, and the skill

required to perform the legal service properly; (2) the likelihood that the

acceptance of the particular employment will preclude other employment by

the lawyer; (3) the fee customarily charged in the locality for similar legal

services; (4) the amount involved and the results obtained; (5) the time

limitations imposed by the client or by the circumstances; (6) the nature and

length of the professional relationship with the client; (7) the experience,

reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent on results obtained or uncertainty of

collection before the legal services have been rendered. See Arthur

Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).

28 Evidence of each of the Andersen factors is not required to support an award

of attorneys' fees. Southwest Grain Co. v. Pilgrim's Pride S.A. de C.V.,

2010 Tex. App. LEXIS 5014, *21-22 (Tex. App.--Corpus Christi 2010, pet.

denied). Rather, the Court looks at the entire record, the evidence presented

on reasonableness, the amount in controversy, the common knowledge of the

participants as lawyers and judges, and the relative success of the parties in

determining the reasonableness of the fee award. Garrod Invs., Inc. v.

Schlegel, 139 S.W.3d 759, 767 (Tex. App.—Corpus Christi 2004, no pet.)

(cited by McDonald v. Fox, 2012 Tex. App. LEXIS 9518, *7 (Tex. App.

Corpus Christi 2012, no pet.).

FEI’s pleading requested attorney’s fees, but did not reference a statute

that would support the award of attorney’s fees. Presumably, FEI relied on

a breach of contract cause of action. An award of attorney's fees in a breach

of contract claim is appropriate only if a party prevails and recovers damages.

See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8)(allowing recovery of

attorney's fees in valid claims involving oral or written contracts); State Farm

Life Ins. Co. v. Beaston, 907 S.W.2d 430, 437 (Tex. 1995).

C. THE COURT’S FINDINGS AND CONCLUSIONS ARE NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE

To support the award of attorney’s fees, the court found “A reasonable

attorney fee for Plaintiff’s attorney, as heard by the evidence, is $4,500.00”

29 (FF #7) Based on this finding, the court concluded “Plaintiff is entitled to

recover attorney’s fees in the amount of $4,500.00.” (CL #2) There is no

evidence to support either the finding of fact or the conclusion of law.

Ali is aware of the civil practice and remedies code provision that allows

a court to “take judicial notice of the usual and customary attorney's fees and

of the contents of the case file without receiving further evidence” in a

proceeding before the court. TEX. CIV. PRAC. & REM. CODE ANN. § 38.004.

However, FEI’s attorney did not ask the court to take judicial notice of amount

and reasonableness of its attorney’s fees. Moreover, § 38.004 has been held

to apply only to claims for attorney's fees under § 38.001. Coward v.

Gateway Nat'l Bank, 525 S.W.2d 857, 859 (Tex. 1975) (cited by In the

Interest of Striegler, 915 S.W.2d 629, 644 (Tex. App.--Amarillo 1996, writ

denied)).

1. Where Contract Claim Fails, Claim for Attorney’s Fees Fails

An award of attorney's fees in a breach of contract claim is appropriate

only if a party prevails and recovers damages. See TEX. CIV. PRAC. & REM.

CODE ANN. § 38.001(8); Beaston, 907 S.W.2d at 437. Because there was no

enforceable contract upon which to sustain the trial court’s damage award,

(See Issue Nos. 1 and 2) FEI’s award of attorney’s fees fails as well.

30 2. There is no Evidence to Support Award of Attorney’s Fees Even if the Contract was Enforceable

FEI’s attorney stated in closing that “I’ve testified as to attorney fees.”

(RR 77) However, a review of the entire reporter’s record fails to yield any

testimony by FEI’s attorney. Moreover, a review of the court reporter’s Exhibit

List (Volume 3 of 3) does not reveal an exhibit detailing the amount of FEI’s

attorney’s fees, nor does the court reporter’s Master Index (Volume 1 of 3)

show any testimony being proffered by FEI’s attorney, Robert Lassmann.

There is no exhibit detailing the amount of attorney time expended by Mr.

Lassmann, nor is there even an affidavit filed by Mr. Lassmann that purports

to establish the amount of the attorney’s fees. FEI merely pled for $4,500.00

in attorney’s fees and that is what the trial court awarded.

Implicit in the Arthur Andersen, Southwest Grain, Garrods

Investment, and McDonald holdings supra, is that there is some evidence

regarding the amount of the attorney’s fees requested. In the present case,

the record is completely devoid of any evidence of attorney’s fees other than

Mr. Lassmann’s statement, made in closing arguments, that he previously

testified. This is not evidence.

D. CONCLUSION TO ISSUE NO. 3

The party applying for an award of attorney’s fees bears the burden of

proof. El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 762-63 (Tex. 2012). In this

31 case, FEI totally failed in carrying that burden because it’s attorney did not

proffer any evidence on the amount or reasonableness of the fees FEI was

requesting. Moreover, the statutory basis to support an award of attorney’s

fees is inapplicable because the oral contract violates the statute of frauds.

Ali requests that the Court sustain their Issue No. 3 and reverse and

render judgment that FEI take nothing by its request for attorney’s fees.

Issue No. 4: When requested to do so, a trial court shall file any additional or amended findings and conclusions that are appropriate. Where Ali timely requested additional or amended findings of fact and conclusions of law to support their limitations defense, the trial court erred in failing to sign same.

Rule 298 permits a party to request specific additional or amended

findings or conclusions "after the court files original findings of fact and

conclusions of law." TEX. R. CIV. P. 298. In this point of error, Ali complains of

the trial court’s failure to file their requested additional or amended findings

and conclusions.

A. THE LAW RELATED TO ADDITIONAL FINDINGS

A trial court is required to make additional findings of fact that are

supported by the record and are not contrary to other previous findings. Rich

v. Olah, 274 S.w.3d 878, 886 (Tex. App.–Dallas 2008, no pet.). Rule 298

requires additional findings of fact and conclusions of law only if they relate

to "ultimate or controlling issues." Assoc. Tel. Directory Publishers v. Five

32 D's Publishing Co., 849 S.W.2d 894, 901 (Tex. App.--Austin 1993, no writ).

An ultimate fact issue is one essential to the cause of action that would have

a direct effect on the judgment. Gen. Elec. Capital Corp. v. ICO, Inc., 230

S.W.3d 702, 711 (Tex. App.--Houston [14th Dist.] 2007, pet. denied); Rich,

274 S.W.3d at 886; Vickery, 5 S.W.3d at 252.

A trial court is not required to make additional findings of fact that are

unsupported in the record, that are evidentiary, or that are contrary to other

previous findings. Buckeye Ret. Co., L.L.C. v. Bank of Am., N.A., 239

S.W.3d 394, 402 (Tex. App.--Dallas 2007, no pet.); see Rafferty v. Finstad,

903 S.W.2d 374, 376 (Tex. App.--Houston [1st Dist.] 1995, writ denied) (only

necessary finding was ultimate issue--whether division of marital estate was

just and right--rather than evidentiary findings as to parties' relative earning

capacities, investments of separate property in community residence, or

cruelty). The burden is on the party requesting additional findings of fact and

conclusions of law to show how the trial court's failure to make additional

findings and conclusions prevents that party from adequately presenting its

complaint on appeal. City of McAllen v. Ramirez, 2013 Tex. App. LEXIS

8887, *76 (Tex. App.--Corpus Christi) vacated on other grounds, 2013 Tex.

App. LEXIS 13785, *1 (Tex. App.--Corpus Christi 2013, no pet.).

33 B. TRIAL COURT’S FINDINGS AND CONCLUSIONS DID NOT ADDRESS ALI’S AFFIRMATIVE DEFENSE OF LIMITATIONS

In the present case, the court filed findings of fact and conclusions of

law. [Supp. CR 4-5] However, the findings only supported FEI’s pled cause

of action for suit on sworn account; none of the court’s findings and

conclusions addressed the affirmative defense of limitations raised by Ali in

their pleadings and in the testimony adduced at trial. Whether the statute of

limitations acted to bar FEI’s claim against Ali was a controlling issue in the

case. Ali pled the affirmative defense in their Original Answer. [CR 30] They

raised it again in a motion for summary judgment. [CR 33] FEI’s documentary

evidence (Pl. Ex. 1) established Ali’s limitations defense.

Because of this defect, Ali timely filed a Request for Additional Findings

of Fact and Conclusions of Law [Supp. CR 8-9] and proposed additional

findings and conclusions. [Supp. CR 6-7] The trial court declined to sign the

additional findings of fact and conclusions of law.

Each additional fact requested is supported by the documents attached

to Plaintiff’s Original Petition [CR 4] and by testimony adduced at trial. Each

conclusion of law is supported by TEX. CIV. PRAC. & REM. CODE ANN. §

16.004(a)(3) (the four-year statute of limitations for debt), and the cases of

Integrated of Amarillo, Inc. v. Pinkston-Hollar Constr. Servs., 2013 Tex.

App. LEXIS 4216, 5-6 (Tex. App.--Amarillo Apr. 2, 2013, no pet.)(under a

34 continuing contract, limitations run at the completion of the work); Hubble v.

Lone Star Contracting Corp., 883 S.W.2d 379, 382 (Tex. App.–Fort Worth

1994, pet. denied)(construction contracts are typically continuing contracts);

and Godde v. Wood, 509 S.W.2d 435, 441 (Tex. Civ. App.--Corpus Christi

1974, writ ref’d n.r.e.)(substantial performance with respect to building

contracts is regarded as full performance triggering a plaintiff’s right to sue).

C. ALI’S ABILITY TO PRESENT APPEAL HINDERED BY TRIAL COURT’S FAILURE TO FILE ADDITIONAL FINDINGS AND CONCLUSIONS

Because the trial court refused to make findings regarding when FEI’s

cause of action accrued and when it filed suit, elements necessary to support

Ali’s limitations defense, there are no findings that would result in a different

judgment. In In re R.D.Y., 51 S.W.3d 314 (Tex. App.–Houston [1st Dist.] 2001,

pet. denied), the First Court of Appeals held that a party must show the trial

court’s refusal to file the requested additional findings caused the rendition of

an improper judgment. Id. at 322. See also Pakdimounivong v. City of

Arlington, 219 S.W.3d 401, 412 (Tex. App.–Fort Worth 2006, pet. denied) (if

requested findings will not result in a different judgment, the findings need not

be made).

D. CONCLUSION TO ISSUE NO. 4

As shown in Issue No. 1 above, FEI’s claims against Ali were barred by

limitations. Although the evidence supported Ali’s request for additional

35 findings and conclusions, the trial court refused to make the additional

findings and conclusions. The judgment would have been different had the

findings been made in that FEI’s claims would have been barred by limitations

and it would have taken nothing.

Ali asks the Court to sustain their Issue No. 4, hold the trial court erred

in failing to make the requested additional findings and conclusions and

reverse the judgment of the trial court. Because the requested findings would

have supported Ali’s limitations defense, Ali also asks the Court to render the

judgment the trial court should have rendered, to wit: that FEI’s suit was

barred by limitations. TEX. R. APP. P. 43.2.

V. CONCLUSION AND PRAYER

The trial court erred in entering judgment against Ali. FEI failed to

timely file suit against Ali and as a result, it’s claims are barred by the statute

of limitations. The judgment is further in error because the oral contract FEI

sued upon is barred by the statute of frauds. It is of no moment that FEI filed

its lawsuit asserting a suit on sworn account because a suit on sworn account

does not allege a cause of action, it merely sets up the effect of a prima facie

pleading. If a defendant files a verified denial, the presumptions created by

the prima facie pleading are defeated and the plaintiff is put to his proof.

The trial court’s findings of fact and conclusions of law confirmed only

36 that FEI had filed a suit on sworn account and that evidence was received

concerning the suit on sworn account. There were no findings concerning the

existence of a contract, or that Ali breached the contract. The court refused

to file Ali’s requested additional findings of fact and conclusions of law, which

were supported by the pleadings, the testimony, and the documentary

evidence. Had the trial court filed the requested additional findings and

conclusions, the judgment would have been different.

Finally, the trial court erred in granting FEI its attorney’s fees. There was

no evidence to support the award, and even though a court can take judicial

notice of the reasonableness of attorney’s fees, there still has to be testimony

concerning the amount of the fees. There was none in this case. In addition,

should this court sustain either Issue No. 1 or Issue No. 2, there would be no

statutory basis to support an award of attorney’s fees.

Ali asks this Court to sustain his issues presented, reverse the judgment

of the trial court and render judgment that FEI take nothing.

Respectfully submitted,

THE WERNER LAW GROUP

/s/ Leslie A. Werner Leslie A. Werner SBN 21190150 PO Box 247 Victoria, Texas 77902

37 361-578-7200 Tel. 361-485-1949 Fax leslie@werner-lawgroup.com Attorney for Appellants, Nadir and Mumtaz Ali

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Appellant’s Brief was served on all counsel of record on June 30, 2015, as follows:

Ms. Cynthia Sheppard PO Box 67 Cuero, Texas 77954 (via email shepp04@msn.com)

/s/ Leslie A. Werner Leslie A. Werner

CERTIFICATE OF COMPLIANCE

The undersigned certifies that according to the WordPerfect word count tool, this document contains 8520 words.

38 NO. 13-15-00095-CV

IN THE COURT OF APPEALS FOR THE THIRTEENTH JUDICIAL DISTRICT CORPUS CHRISTI, TEXAS

Appeal from Cause No. 13-03-22,628 In the District Court of DeWitt County, Texas; 135th Judicial District _____________________________________________________

APPENDIX _____________________________________________________

Trial Court’s Judgment Tab 1

Findings of Fact and Conclusions of Law Tab 2

Request for Additional Findings of Fact and Conclusions of Law Tab 3

Proposed Additional Findings of Fact and Conclusions of Law Tab 4 \>-03 NO. 22,628

FLESSNER ENTERPRISES, INC. * IN THE DISTRICT COURT * vs. * OF DeWITT COUNTY, TEXAS * NADIR ALI & MUMTAZ ALI * 13STH. JUDICIAL DISTRICT

JUDGMENT

BE IT REMEMBERED that on the 17th day of October, 2014,

came on to be heard the above-entitled and numbered cause

wherein Flessner Enterprises, Inc., as Plaintiff, alleged that

it had sold and delivered goods and services to Nadir Ali and

Mumtaz Ali, Defendants, had has not yet be~~ paid, in its

Original Petition filed herein. It appears that citation and

certified copy of plaintiff's Original Petition was served on

Defendants, Nadir Ali and Mumtaz Ali.

After hearing evidence .and argument of counsel and the law

involved herein, the Court is of the opinion that Plaintiff

should recover as prayed.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court

that said FLESSNER ENTERPRISES, INC., Plaintiff recover from

Defendants, Nadir Ali and Mumtaz Ali, the amount of $145,543.37

as damages, together with both pre- and post- judgment interest I I

JlmGMENT, Page 1

70 as allowed by law. IT IS FURTHER ORDERED, ADJUDGED AND DECREED

that Plaintiff, Flessner Enterprises, Inc., recover attorney's

fees from Defendants, Nadir Ali and Mumtaz Ali, in the amount of

$4,500.00.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that costs

shall be assessed against the party incurring the same. 2tZ- day Iltu..~ SIGNED this the 7 of ~6' etl1l9s;s, 2014.

APPROVED: FILE D Ult;:.:::1h}.-_o·clocl< FM Robert C. Lassmann, 2 14 Attorney for Plaintiff

Kenneth E. Kvinta, Attorney for Defendants

JUDGMENT, Page 2

71 CAUSE NO. 22,628

IN THE 135TH JUDICIACjDISTRICT FLESSNER ENTERPRISES, INC. " * ) VS. ..* COURT OF

NADIR ALI & MUMTAZ ALI DeWITT COUNTY, TEXAS

FINDINGS OF FACT AND CONCLUSION OF LAW

After reviewing the pleadings and the record, the Court makes the following Findings of Fact:

1. On October 17, 2014, the Court heard evidence in this cause from both Plaintiff and Defendant.

2. Plaintiff delivered goods and services to Nadir Ali and Mumtaz Ali in DeWitt County, Texas to a building owned by Derendants known as FastrakExpress. Said goods were in the fonn of contracting ami electril.-al equipment and supplies. Said labor was perfonned by Plaintiff and its employees and agents.

3. Plaintiff's sales and services were made at the special insistence and request of Defendants and were delivered in the regular course of business.

4. .Plaintiff delivered said goods and services in the regular course of business. Plaintiff kept a systematie record of said goods and services.

5. DefendsnlS promised and became bound and liable to pay Plaintiff for said goods and services.

6. The principal amount Defendants owe Plaintiffis $158,008.08. After all lawful set-offs and payments, the amount Defendants owe Plaintiff is $145,543.37.

7. A reasonable attorney fee fOf Plaintiff's attorney, as heard by the evidence, is $4,500.00.

The Trial Court makes the following Conclusions of Law:

1. Plaintiff delivered goods and services to Defendants in the regular course of business and of which a systematic record was kept, after all lawful set-offs and charges are deducted, a total of $145,543.37 is due and owing Plaintiff.

2. Plaintiff is entitled to recover attorney's fees in the amount of$4,500.00.

3. Plaintiff is entitled to pre- and post-judgment interest as provided by Jaw.

4. Defendant is liable for costs of court.

4 SIGNED this the (,~day Of_~4.!!<~=+_ _ _ _" 2015.

FILED ~Y!k:Lo·clOCk.~M FEB 11 2015

,Texas -t~~~JJ.."epuIy

5 Filed 2123120154:08:04 PM Tabeth Gardner De¥;i!t County District Cieri< NO. 13.03-22,628

FLESSNER ENTERPRISES, INC. § IN THE DISTRICT COURT § V. § 135TH JUDICIAL DISTRICT § NADIR N. ALI and MUMTAZ ALI § DeWITT COUNTY, TEXAS

REQUEST FOR ADOITIONAl. FINDINGS OF FACT AND CONCl.USIONS OF LAw

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW the Defendants, Nadir N. Ali and MumtazAlI, and pursuant to TEX. R

CIV. P. 298, request that the Court file the Additional Findings of Fact and Conclusions of

Law attsched herelo as Exhibit A.'

The Additional Findings of Fac! and Conclusions of Law are requested in this case

because the original Findings of Fac! and Conclusions of Law. signed on February 6, 2015

and filed on February 11, 2015, made no reference 10 any fact relevant to Defendants'

statute of limitations defense.

Each additional fact requested is supported by the documents attached to Plaintiffs

Original Petition andlor Defendants' Motion for Summary Judgment. Each conclusion of

law is supported by TEX. CIV.PRAC.&REM. GODEANN.§ 16. 004(a)(3)(thefour-yesrstatute

of limitations for debt). and the cases of Integrated of Amarillo, Inc. v. Pinkston-Hollar

Canstr. Servs., 2013 Tex. App. LEXIS 4216, 5-6 (Tex. App.-Amarillo Apr. 2, 2013. no

pet.); Hubble v. Lone Star Contracting Corp•• 883 S.W.2d 379, 382 (Tex. App.-Fort

Worth 1994. pet. denied); and Godde v. Wood, 509 S.w.2d 435, 441 (Tex. Civ. App.--

Corpus Christi 1974, writ refd n.r.e.).

'Rule 298 requires that the request for additional findings and conclusions must be filed within ten days of the original findings and conclusions. Ten days from February 11, 2015 was Saturday, February 21, 2015. The request is thus due on Monday, February 23, 2015. TEX.R.APP.P.4.1(a).

8 The additional findings and conclusions must be filed within ten days of the request

being made, or on or before March 5, 2015.

WHEREFORE, Defendants ask that the Court sign and file the Additional Findings

of fact and oonclusions of law attached hereto.

Respectfully submitted

Leslie A. Werner PO Box 247 Victoria, Texas 77902 361·578·7200 Tel. 361-485-1949 Fax leslie@werner-Iawgroup.oom Attorney for Defendants, Nadir N. Ali and MumtazAli

CERTifiCATE SERVICE

I hereby certify that a true and oorrect OOPY of the foregOing document was served on all attorneys of reoord on February 23,2015 as follows:

Mr. Robert C. Lassmann 307 N. Gonzales Cuero, Texas 77954 (via fax: 361-275-3282)

Leslie A. Werner

9 NO. 13-03-22,628

FLESSNER ENTERPRISES, INC. § IN THE DISTRICT COURT § v. § 135TH JUDICiAl DISTRICT § NADIR N. All and MUMTAZ AU § DeWITT COUNTY, TEXAS

ADDITIONAl. FINDINGS OF FACT AND CONCl.USIONS OF LAw

As provided for in TEX. R. CIV. P. 298, the Court's Findings of Fact and Conclusions

of Law signed on February 6, 2015 and filed on February 11. 2015, afe hereby

supplemented with the following additional findings of fact and conclusions of law:

Findings of Fact

1. Plaintiff filed suit against Defendants on March 28, 2013.

2. Plaintiff sent to Defendants a final invoice dated March 30, 2009.

3. Plaintiff last provided materials for use on and installation in Defendants' property no later than February 25, 2007.

4. Plaintiff last provided labor related to the installation of !he materials no later than March 16,2009.

5. Defendants answered Plaintiff's Original Petition and asserted the affirmalive defense of limitations.

6. Defendantsfiled a motion for summary judgment asserting Plaintiff's cause of action was barred by limitations.

7. The Court denied the molion for summary judgment on October 9, 2014 and the case proceeded to trial on October 17, 2014.

Conclusions of Law

1. The statute of limitations for a claim asserting breach of contract is four years.

2. A construction contract is generally a continuing contract.

3. On a continuing contract, limitations runs at !he earlier of (1) !he completion oflhe work; (2) !he lermination of the contract under its own terms; or (3) !he anticipatory

6 repudiation of the contract by one party and the adoption of the repudiation by the other party.

SIGNED: _ _ _ _ _ _ _ _" 2015.

JUDGE PRESIDING