ACCEPTED 03-15-00317-CV 7147667 THIRD COURT OF APPEALS AUSTIN, TEXAS 9/29/2015 2:23:28 PM JEFFREY D. KYLE CLERK CAUSE NO. 03-15-00317-CV
FILED IN 3rd COURT OF APPEALS IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS AUSTIN, TEXAS 9/29/2015 2:23:28 PM JEFFREY D. KYLE Clerk TERRY RANDALL Appellant
vs.
HERBERT WALKER D/B/A, WALKER WATER WELLS AND WALKER WATER WELL SERVICES, LLC Appellees
From Cause No. 423-2441 In the 423rd Judicial District Court Bastrop County, Texas
APPELLANT TERRY RANDALL’S BRIEF
S. Cory Sells State Bar No. 24075525 Craig Welscher State Bar No. 21167200 The Welscher Law Firm, P.C. 1111 North Loop West, Suite 702 Houston, Texas 77008 (713) 862-0800 – Telephone (713) 862-4003 – Facsimile Email: csells@welscherlaw.com Attorneys for Appellant IDENTITY OF PARTIES AND COUNSEL
Appellant
Terry Randall
Appellant’s Trial and Appeal Counsel
S. Cory Sells SBN: 24075525 Craig Welscher SBN: 21167200 The Welscher Law Firm, P.C. 1111 N. Loop West, Suite 702 Houston, Texas 77008 Telephone: (713) 862-0800 Facsimile: (713) 862-4003 Email: csells@welscherlaw.com
Appellee
Herbert Walker d/b/a Walker Water Wells and Walker Water Well Services, LLC
Appellees’ Trial Counsel
Alex Metcalf SBN: 24058000 807 Pecan Street Bastrop, Texas 78602 (512) 303-6963 – Telephone (512) 303-6766 – Facsimile Email: alex@lostpineslawyer.com Attorney for Appellant
ii TABLE OF CONTENTS
PAGE Identity of Counsel and Parties.................................................................................ii
Table of Contents.....................................................................................................iii
Index of Authorities…………….............................................................................vii
Statement of the Case................................................................................................1
Issues Presented……….............................................................................................2
Statement of Facts….................................................................................................3
A. Oral Agreement of Drilling Wells in Exchange for Drilling Rig........3
B. Breach of the Oral Agreement…..........................................................5
1. The First Well Produced Sandy, Orange Water…………….…5
2. The Second Well Produced Sandy Water……………..…….…5
3. The Third Well Produced Sandy and “Blackish” Water………6
4. Randall Kept His End of the Agreement………………………6
C. Randall was Damaged by Walker’s Breach…………………..………6
D. Jury Verdict for Randall Disregarded…………………..…………….7
Summary of the Argument........................................................................................8
Argument...................................................................................................................9
A. THE NO EVIDENCE STANDARD FOR ATTACKING ADVERSE FINDINGS BY A JURY…9
B. QUESTION NUMBER ONE: EXISTENCE AND TERMS OF THE AGREEMENT…….....10
iii 1. Disregarded for No Supporting Evidence…............................................10
2. Offer: Randall Testified of the Terms Negotiated Between the Parties.......................................................................................................11
3. Acceptance: Walker Testified that He Drilled the Wells and Was Responsible for the Correct Drilling of the Wells………………...........12
4. Part Performance Under an Agreement May Remove Uncertainty and Establish that a Contract is Enforceable…...............................................14
C. QUESTION NUMBER TWO: BREACH BY WALKER................................................17
1. Disregarded for No Supporting Evidence................................................17
2. Expert Testified the Well Water was Harmful to Humans and Animals and Full of Sand ……………………………………………..................17
D. QUESTION NUMBER THREE: DAMAGES…………………………….................18
1. Disregarded for No Supporting Evidence…............................................18
2. $89,596.06 Paid for Worthless Wells……………...………..................18
3. Walker’s Attorney Stated the Market Value of the Wells was $22,000…………………………………………………………………19
E. QUESTION NUMBER FOUR: ATTORNEY’S FEES……………………….................20
1. Disregarded for No Supporting Evidence................................................20
2. Uncontested, Reasonable Testimony Established the Attorney’s fees as a Matter of Law…………………………………………………………...21
3. Evidence was Put Before the Jury of $30,845.00 in Reasonable Attorney’s fees………………………………………………………….23
iv F. REQUEST TO FIND A JUDICIAL ADMISSION: RAISED AS TO QUESTION ONE AND TWO…………………………………………………………………...…….23
1. Herbert Cannot Rely on a Judicial Admission that He Failed to Protect…………………………………..................................................24
2. Contradictory Testimony is a Quasi-Admission for the Fact Finder to Resolve ……………………………………….………………………...25
G. WALKER WATER WELLS DID NOT FILE ANY POST-TRIAL MOTION…..……..……27
Conclusion...............................................................................................................27
Prayer.......................................................................................................................28
Certificate of Compliance........................................................................................28
Certificate of Support..............................................................................................29
Certificate of Service...............................................................................................29
Appendix....................................................................................................................a
1. Clerk’s Record
a. Charge of the Court
b. Defendant’s Motion For Judgment Non Obstante Veredicto c. Defendant Herbert Walker’s Post Verdict Brief
d. Judgment
2. Reporter’s Record
a. Volume 3
i. Excerpts of Examination of Terry Randall
v ii. Excerpts of Examination of Herbert Walker
iii. Excerpts of Examination of Tom Frist
iv. Excerpts of Examination of S. Cory Sells
b. Volume 4
i. Objections By Mr. Metcalf, Attorney for Appellees on Submission of Jury Question One and Two
ii. Excerpts of Closing Statements by Mr. Metcalf
c. Volume 7
i. Plaintiffs’ Exhibit 2
ii. Plaintiffs’ Exhibit 4
iii. Plaintiffs’ Exhibit 8
vi INDEX OF AUTHORITIES
TEXAS CASE LAW:
Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)……………………………...23
Brown v. Bank of Galveston, 930 S.W.2d 140, 145 (Tex. App.- Houston [14th Dist.] 1996), aff’d, 963 S.W.2d 511 (Tex. 1998)…………………………………21
Cale’s Clean Scene Carwash, Inc. v. Hubbard, 76 S.W.3d 784, 786 (Tex. App.- Houston [14th Dist.] 2002, no pet.)……………………………………………….23
City of Keller v. Wilson, 168 S.W.3d 802, 810, 819, 822, 827 (Tex. 2005)…….9
Crisp Analytical Lab, L.L.C., v. Jakalam Props., Ltd, 422 S.W.3d 85, 88 (Tex. App.—Dallas 2014, pet. denied)………………………………………………….16
Croucher v. Croucher, 660 S.W.2d 55, 58,(Tex. 1983)…………………………....9
Cullins v. Foster, 171 S.W.3d 521, 538-39 (Tex. App.- Houston [14th Dist.] 2005, pet. denied)………………………………………………………………………..21
El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761-62 (Tex. 2012)…………………22
Fiduciary Fin. Servs. of Sw. Inc. v. Corilant Fin., L.P., 376 S.W.3d 253, 256 (Tex. App.—Dallas 2012, pet. denied)………………………………………………….14
Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 847 (Tex. 2000)………………………………………………………………………………14
Griffin v. Superior Insurance Co., 338 S.W.2d 415, 419 (Tex.1960)…………….26
Harris Cnty. v. Hall, 141 Tex. 388, 172 S.W.2d 691, 694-95 (Tex. 1943)……….26
Hurlbut v. Gulf Atlantic Life Ins. Co., 749 S.W.2d 762, 765 (Tex. 1987)……24-25
Komet v. Graves, 40 S.W.3d 596, 601 (Tex. App.-San Antonio 2001, no pet.)………………………………………………………………………………..15
Learners Online, Inc. v. Dallas Indep. Sch. Dist., 333 S.W.3d 636, 643 (Tex. App.- -Dallas 2009, no pet.)……………………………………………………………..14 vii Lofton v. Texas Brine Corp., 777 S.W.2d 384, 386 (Tex. 1989)………………….21
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998)………….9
Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989)……………………………...24
Midland Western Bldg., L.L.C. v. First Serv. Air Conditioning Contractors, Inc., 300 S.W.3d 738, 739 (Tex. 2009)………………………………………………...22
Miller v. Bock Laundry Machine Co., 568 S.W.2d 648, 652 (Tex. 1977)………..27
Mendoza v. Fidelity & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980)…………………………………………………………………………..25, 26
Palestine Water Well Servs., Inc. v. Vance Sand & Rock, Inc., 188 S.W.3d 321, 324-27 (Tex. App.—Tyler 2006, no pet.)………………………………..15, 18, 19
Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990)......21
Regal Fin. Co., Ltd. v. Tex Star Motors, Inc., 355 S.W.3d 595, 603 (Tex.2012)…13
Rosenblatt v. Freedom Life Ins. Co. of Am., 240 S.W.3d 315, 323 (Tex. App.- Houston [1st Dist.] 2007)……………………………………………………..…..22
Sadeghi v. Gang, 270 S.W.3d 773, 776 (Tex. App.—Dallas 2008, no pet.)………………………………………………………………………………..15
Schlager v. Clements, 939 S.W.2d 183, 193 (Tex. App.- Houston [14th Dist.] 1996, writ denied)………………………………………………………………………..22
Smith v. Patrick W.Y. Yam Trust, 296 S.W.3d 545, 546 (Tex. 2009)……………..23
TX Far West, Ltd. v. Tex. Invs. Mgmt., 127 S.W.3d 295, 308 (Tex. App.—Austin 2004 no pet.)………………………………………………………………….…26
United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224, 229 (Tex.Civ.App.-San Antonio 1951, writ refused n.r.e.)………………………….27
viii STATEMENT OF THE CASE
The Jury returned a verdict in favor of Plaintiff and Appellant herein, Terry
Randall (“Randall”) against Defendants and Appellees, Herbert Walker d/b/a
Walker Water Wells (“Herbert”) and Walker Water Well Services, LLC, (“WWW”
or jointly “Walker”), for the breach of an oral contract for the drilling of three
water wells by Walker on Randall’s property. (CR: 699-707). Trial Court granted
Herbert’s Motion for Judgment No Obstante Veridicto, dismissing Randall’s
claims as to both Herbert and Walker and ordering that Randall “take nothing as a
result of this suit.” (CR 739). This appeal followed.
1 ISSUE PRESENTED
1. Was there sufficient evidence presented at trial to support the Jury’s verdict.
2 STATEMENT OF FACTS
A. Oral Agreement of Drilling Wells in Exchange for Drilling Rig
Randall entered into an oral agreement with Walker for the drilling of three
good water wells on Randall’s property. (R.R. Vol. 3, at p. 60:8-61:24; and 115:15-
22). Randall testified that Walker agreed to drill Randall three good wells in
consideration for the title for the drilling rig owned by Randall. (Id; R.R. Vol. 3, at
p. 179:25-180:20). Randall was to pay the expenses and Walker was to use
Randall’s drilling rig to drill the wells. (R.R. Vol. 3, at p. 61:22-24). On cross
examination, Randall discussed other terms which were included by him and
Walker through the ongoing negotiations during the work of drilling the three
wells. (R.R. Vol. 3, at p. 119:4-19). These other terms included:
a. Walker would drill the wells to two-hundred and fifty feet deep (R.R.
Vol. 3, at p. 119:4-14; 121:6-14);
b. Walker could use Randall’s drilling rig to drill the wells (R.R. Vol. 3,
at p. 179:25-180:17);
b. Walker would set the tanks and pumps in the wells (R.R. Vol. 3, at p.
120:19-121:5); and
c. The wells would produce good water (R.R. Vol. 3, at p. 121:6-14),
which was defined as potable water. (R.R. Vol. 3, at p. 117:10-14).
Randall testified that these terms were all agreed to by Walker. (R.R. Vol. 3, 3 at p. 60:8-61:7; 115:15-22; and 123:6-14;). The jury saw four color photos
showing the finished wells with tanks on slabs of concrete. (R.R. Vol. 7, at p.
59,60, 62, and 66).
Walker testified that:
1) he operated the drilling rig on Randall’s property (R.R. Vol. 3, at p.
170:16-18);
2) he and his sons were responsible for the correct drilling of the three wells
(R.R. Vol. 3, at p. 181:6-10);
3) he filled out well reports for the three wells, listing himself as the licensed
driller (R.R. Vol. 3, at p. 170:7-15); and
4) the reports were filed with the State of Texas. (R.R. Vol. 3, at p. 170:7-
15).
But, Walker denied that he and Randall had an agreement to drill the wells. (R.R.
Vol. 3, at p. 166:4-19).
Randall testified that he and Walker had a prior history of oral contracts in
which payment was then made to “Walker Water Well Service” for work Walker
performed for Randall. (R.R. Vol. 3, at p. 58:4-5). The check showing the course
of dealings between Randall and Walker was admitted as evidence in the trial.
(R.R. Vol. 7, at p. 5).
4 B. Breach of the Oral Agreement
1. The First Well Produced Sandy Orange Water
Randall testified that the first of the three wells was drilled by Walker and
his two sons, Adam and Thomas Walker, while Randall was out of town. (R.R.
Vol. 3, at p. 64:4-13). Walker failed to reach 250 feet with the first well. (R.R. Vol.
3, at p. 64:13-14).
Randall described the water quality of the first well as being “terrible.” (R.R.
Vol. 3, at p. 65:1-21). The water from the first well was orange and full of sand and
began to ruin Randall’s plumbing fixtures. Id. Walker stated that he could not
contradict Randall’s testimony as to the water quality of the first well. (R.R. Vol. 3,
at p. 170:24-171:6).
Randall’s expert witness as to water well drilling practices and water well quality,
Thomas Frist (“Frist”), opined that the water from the first well was full of iron,
harmful to plants, animals and humans, and non-potable. (R.R. Vol. 3, at p.
186:10-16 and 195:21-24).
2. The Second Well Produced Sandy Water
The second well was drilled to only two hundred and thirty feet, again
falling short of the agreed 250 feet. (R.R. Vol. 3, at p. 66:22-25). Randall testified
that the water produced was full of sand. (R.R. Vol. 3, at p. 67:21-68:3). The sand
was so bad it destroyed the first water pump. Id. Frist also testified that he found 5 sand in the water from well two. (R.R. Vol. 3, at p. 187:2-8). In Frist’s expert
opinion, there should not be sand in the well water. Id.
3. The Third Well Produced Sandy and “Blackish” Water
Randall testified that the water coming from the third well was sandy, dirty,
and blackish. (R.R. Vol. 3, at p. 69:18-70:6). Randall recalled that if the water sat,
it would pump out stinky, nasty water with a black residue. Id. He asserted that this
was not good water. Id. Frist testified that the water produced by well number three
contained a level of sand not contained in good water. (R.R. Vol. 3, at p. 186:2-8).
4. Randall Kept His End of the Agreement
Herbert testified that he used Randall’s drilling rig on Randall’s property.
(R.R. Vol. 3, at p. 180:10-20). Herbert also testified that the drilling rig, including
its title, was transferred in exchange for the drilling of the wells. Id. Randall
testified that he spent $9,596.06 on the expenses for the construction of the three
wells. (R.R. Vol. 3, at p. 113:15-21).
C. Randall was Damaged by Walker’s Breach
Randall testified that the wells drilled for him by Walker were of no value.
(R.R. Vol. 3, at p. 71:6-13). He also testified that the market value of the title of the
drilling rig Randall transferred to Walker was $80,000.00. (R.R. Vol. 3, at p. 61:8-
21). Herbert agreed that the drilling rig was paid in exchange for the three wells
drilled. (R.R. Vol. 3, at p. 180:10-20). Randall testified that he was seeking 6 damages of the value of the drilling rig and the expenses paid, totaling $89,596.06.
(R.R. Vol. 3, at p. 114:6-17).
Randall further testified that a demand for Walker to fix the wells was made,
but Walker never returned to fix them. (R.R. Vol. 3, at p. 115:4-8). He testified that
Walker paid no amount towards the balance of the damages suffered. Id. Randall
testified that he was required to hire attorneys to help and was seeking his
attorney’s fees. (R.R. Vol. 3, at p. 114:18-115:3). Randall’s Attorney testified that
the reasonable and necessary attorney’s fees through trial in Randall’s case
amounted to $30,845.00. (R.R. Vol. 3, at p. 210:5-211:13). Walker elected not to
cross-examine Randall’s attorney as to the reasonable and necessary attorney’s
fees. (R.R. Vol. 3, at p. 212:4-10). The jury rendered a verdict in Randall’s favor.
(C.R., at p. 702-707).
D. Jury Verdict for Randall Disregarded
On June 1, 2015, the trial court granted Defendant’s Herbert Walker’s
Motion for Judgment Non Obstante Veredicto (“JNOV”) (C.R., at p. 709-711),
overturning the jury’s verdict for Randall and rendered a take nothing judgment
against Randall for all of his claims against all defendants. (C.R., at p. 739). The
JNOV was filed solely by Herbert, not WWW. (C.R., at p. 709-711). For the sake
of efficiency, the jury questions and the objections raised to each are jointly laid
out along with Randall’s response in the Arguments below. 7 SUMMARY OF THE ARGUMENT
Issue: Was there sufficient Evidence to Uphold the Jury’s Verdict
Evidence of the offer, acceptance, and terms of the agreement were placed
before the jury. As is common in contested fights over oral contracts, the
supporting evidence is found in the witness testimony, in the actions of the parties,
and in documentation of the actions of the parties. Both parties agree that three
wells were drilled on Randall’s property by Walker and his sons. Both parties
agree that the drilling rig and title were delivered as consideration for the drilling
of those three wells. Acceptance of the terms of the oral agreements can be
imputed to Walker by the jury through Walker’s actions in light of the
circumstances. There is sufficient evidence to uphold the jury’s findings in
Randall’s, Frist’s, and Walker’s testimony. Because there was ample evidence to
uphold the jury’s findings, the trial court’s take nothing judgment must be reversed
and a judgment in line with the jury’s findings rendered.
8 ARGUMENTS AND AUTHORITIES
A. The No Evidence Standard for Attacking Adverse Findings by a Jury
In reviewing a legal sufficiency challenge, we consider evidence in the light
most favorable to the challenged finding and indulge every reasonable inference
that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).
We credit favorable evidence if a reasonable fact finder could do so, and disregard
contrary evidence unless a reasonable fact finder could not do so. Id. at 827. The
evidence is legally sufficient if it would enable a reasonable and fair-minded
person to reach the finding under review. Id. Evidence is legally insufficient when
(1) there is a complete absence of evidence of a vital fact; (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; or (4) the evidence establishes conclusively the opposite of the vital fact.
Id. at 810. The fact finder is the sole judge of the credibility of witnesses and the
weight to give their testimony. Id. at 819.The court is not a fact finder and may not
pass on the credibility of the witnesses or substitute its judgment for that of the
trier of fact, even if a different conclusion could be reached on the evidence.
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998).
Under the above standards, Randall presented more than sufficient evidence
to uphold the jury’s responses to jury questions one through four. 9 B. Question Number One: Existence and Terms of the Agreement
The first jury question was as to the existence of an agreement and the terms
thereto:
Did Terry Randall, Herbert J. Walker d/b/a Walker Water Well, and Walker Water Well Services, LLC, agree that Herbert J Walker d/b/a Walker Water Well, and Walker Water Well Services, LLC, would drill three water wells to a depth of 250 feet using a drilling rig owned by Terry Randall; that Herbert J. Walker d/b/a Walker Water Well, and Walker Water Well Services, LLC, would set the tanks and the pumps on those wells; and that the wells would produce good water; and that Terry Randall would transfer ownership of his drilling rig to Herbert J. Walker d/b/a Walker Water Well, and Walker Water Well Services, LLC, as payment for the wells?
(C.R., at p. 702). Question number one included an instruction of what evidence
the Jury could look to for support:
In deciding whether the parties reached an agreement, you may consider what they said and did in light of the surrounding circumstances, including any earlier course of dealing. You may not consider the parties’ unexpressed thoughts or intentions.
Id. The jury returned an answer of “Yes” to question number one. Id.
1. Disregarded for No Supporting Evidence
Herbert’s JNOV challenged question one on the grounds that there was no-
evidence to support the terms contained therein or such terms were contradicted by
Randall. (C.R., at p. 709-10). No attempt was made in the JNOV to demonstrate
where the evidence was lacking. Id. Herbert filed “Herbert Walker’s Post-Verdict
Brief” (“Post-Verdict Brief”), which he argues that Randall failed to prove that 10 there was a “meeting of the minds as to all essential terms of their agreement.”
(C.R., at p. 726). A discussion of which essential terms are missing is not provided
in the Post-Verdict Brief. (C.R., at p. 724-26).
Herbert also argues the jury’s answer to question number one should be
disregarded because a fact was established to the contrary as a matter of law
through a judicial admission made during Randall’s testimony. (C.R., at p. 710).
Herbert’s allegation of the existence of a judicial admission regarding question
number one will be discussed jointly with a similar accusation as to question
number two below.
At trial, Walker objected to the submission of question number one based
upon a lack of factual and legal sufficiency, but made no objection to the inclusion
of any one particular term or the instruction. (R.R. Vol. 4, at p. 5:6-6:15).
2. Offer: Randall Testified of the Terms Negotiated Between the Parties
As described above in paragraph A of the Statement of Facts, Randall
testified that he and Walker discussed and agreed on each and every term found in
question one. See also Appellant’s Table 1 below. Randall and Walker’s testimony
and the exhibits presented were more than a scintilla of evidence of an oral
agreement between the parties and of the terms thereof. Id.
11 Appellant’s Table 1: Testimony and Evidence of Terms in Jury Question One.
Term of Contract listed in Support Citation to Record Jury Question One Drill Three Water Wells Randall’s R.R. Vol. 3, at p. 60:8-61:24; Testimony 115:15-22; and 179:25-180:20 Walker’s R.R. Vol. 3, at p. 170:7-18; Testimony 181:6-10 Depth of 250 Feet Randall’s R.R. Vol. 3, at p. 119:4-14; Testimony 121:6-14 Using Drilling Rig Owned by Randall’s R.R. Vol. 3, at p. 60:22-24 Randall Testimony Walker’s R.R. Vol. 3, at p. 170:16-18; Testimony and 179:25-180:17 Walker Would Set the Tanks Randall’s R.R. Vol. 3, at p. 120:19-121:5 and Pumps Testimony Plaintiff’s R.R. Vol. 7, at p. 59, 60, 62, Exhibit 4 and 66 Wells Would Produce Good Randall’s R.R. Vol. 3, at p. 121:6-14 Water Testimony Walker’s R.R. Vol. 3, at p. 167:6-8 Testimony Walker would be Paid by Randall’s R.R. Vol. 3, at p. 60:22-24 Transferring to him the Title to Testimony Randall’s Drilling Rig Walker’s R.R. Vol. 3, at p. 179:25- Testimony 180:20
3. Acceptance: Walker Testified that He Drilled the Wells and Was Responsible for the Correct Drilling of the Wells
Randall testified that Walker agreed to the terms of the agreement. (R.R.
Vol. 3, at p. 121:18-22). Notwithstanding Randall’s testimony, Walker’s testimony
alone gave the jury plenty of evidence that Walker agreed to the terms of the
12 contract. The Jury heard undisputed testimony from Walker that the following
actions occurred:
1) three water wells were drilled by Walker with Randall’s drilling rig (R.R.
Vol. 3, at p. 170:16-18; and 179:25-180:17);
2) Walker prepared forms to be filed with the State of Texas declaring
Herbert to be the licensed driller of those three wells (R.R. Vol. 3, at p.
170:7-18);
3) Randall’s drilling rig and its title were transferred as consideration for the
drilling of the three wells (R.R. Vol. 3, at p. 179:25-180:20); and
4) Walker and his sons were responsible for the correct drilling of the three
wells on Randall’s property. (R.R. Vol. 3, at p. 181:6-10).
The jury was instructed to rely upon the actions of Walker when deciding if
he agreed to the terms negotiated between Walker and Randall. (C.R., at p. 702).
Randall’s testimony that Walker agreed and then began drilling the wells is alone
legally sufficient evidence when paired with the factual circumstances of the case
to uphold the jury verdict that Walker agreed to the terms of the contract. Regal
Fin. Co., Ltd. v. Tex Star Motors, Inc., 355 S.W.3d 595, 603 (Tex.2012). Walker’s
testimony merely adds layers of support to that testimony which demonstrates that
the terms were accepted by the parties.
13 4. Part Performance Under an Agreement May Remove Uncertainty and Establish that a Contract is Enforceable
Herbert’s argument that the contract is unenforceable due to lack of evidence
of a meeting of the minds as to all essential elements is flawed. Rather, Texas law
provides that the partial performance of both parties can render an otherwise
uncertain agreement enforceable.
Whether a particular agreement is an enforceable contract is a question of
law reviewed de novo. Fiduciary Fin. Servs. of Sw. Inc. v. Corilant Fin., L.P., 376
S.W.3d 253, 256 (Tex. App.—Dallas 2012, pet. denied). To be enforceable, a
contract must define its essential terms with sufficient detail to allow a court to
determine the obligations of the parties. “Essential terms” of a contract may
include time of performance, price to be paid, work to be done, service to be
rendered, or property to be transferred. Learners Online, Inc. v. Dallas Indep. Sch.
Dist., 333 S.W.3d 636, 643 (Tex. App.—Dallas 2009, no pet.). When an agreement
leaves essential terms open for future negotiation, it is not binding upon the parties
and merely constitutes an agreement to agree. See Fort Worth Indep. Sch. Dist. v.
City of Fort Worth, 22 S.W.3d 831, 847 (Tex. 2000). However, parties may agree
on some terms sufficient to create a contract, leaving other provisions for later
negotiation. Corilant Fin., L.P., 376 S.W.3d at 256.
The parties must have a “meeting of the minds” and must communicate
14 consent to the terms of the agreement. Sadeghi v. Gang, 270 S.W.3d 773, 776
(Tex. App.--Dallas 2008, no pet.). In determining whether there was a “meeting of
the minds,” and therefore an offer and acceptance, courts use an objective standard,
considering what the parties did and said, not their subjective states of mind.
Komet v. Graves, 40 S.W.3d 596, 601 (Tex. App.-San Antonio 2001, no pet.).
Courts look to the communications between the parties, as well as the acts and
circumstances surrounding the communications, in making this determination. Id.
In an analogous case, a water well driller in Tucker, Texas, disputed that he
agreed to all of the terms of the contract, despite the jury finding as much.
Palestine Water Well Servs., Inc. v. Vance Sand & Rock, Inc., 188 S.W.3d 321,
324 (Tex. App.—Tyler 2006, no pet.). To disprove the meeting of the minds, the
well driller argued that the oral representations regarding the completed water
well’s ability to production of a certain gallon per minute (“GPM”) were guesses,
not guarantees. Id. at 326. The well did not produce at least 200 GPM , despite the
driller’s verbal assurances. Id. at 324. A verdict was rendered against the driller for
breach of contract for his failure to drill the well in accordance with the GPM
requirements of the landowner. Id. The court of appeals held that the testimony of
the landowner and evidence of actions taken by the parties were both legally and
factually sufficient for the jury’s finding of a formation of a contract. Id. at 327.
The partial performance of the parties in this case, including the drilling of 15 the wells and paying of the consideration, establishes the contract as enforceable.
In Crisp Analytical Lab, L.L.C. v. Jakalam Props., Ltd, the Dallas appeals court
referenced the Second Restatement of Contracts to describe why a partially
performed contract may remove any uncertainty as to the enforceability of a
contract. Crisp Analytical Lab, L.L.C., v. Jakalam Props., Ltd, 422 S.W.3d 85, 88
(Tex. App.—Dallas 2014, pet. denied). “Part performance under an agreement may
remove uncertainty and establish that a contract is enforceable as a bargain has
been formed.” Id., citing RESTATEMENT (SECOND) OF CONTRACTS § 34(2)
(1981).
Walker testified as to his partial performance under the contract. Although
he refused to acknowledge a contract existed, the actions he admitted to taking
were a partial performance of the contract testified to by Randall. See Appellant’s
Table 1.
The jury was instructed to weigh Walker’s testimony and actions, the
exhibits, and Randall’s testimony when coming to a conclusion as to the existence
of a contract. Because there was testimony by Randall that the terms were
discussed with Walker, that Walker agreed with the terms of the contract, and
ample evidence that Walker took actions in furtherance of that contract, the Jury
had sufficient evidence to support their response to question number one. The trial
court erred in disregarding the question number one. 16 C. Question Number Two: Breach by Walker
Question number two requested the jury to respond “yes” or “no” to the
question “[d]id Herbert J. Walker d/b/a Walker Water Well, and Walker Water
Well Services, LLC fail to comply with the agreement”, referring to the agreement
found in question number one. (C.R., at p. 703). The jury responded “Yes.” Id.
Herbert’s JNOV argued that there was no evidence to support question
number two or a fact was established to the contrary to it as a matter of law. (C.R.,
at p. 710). No explanation was given by Herbert in the JNOV as to what fact was
established as a matter of law. Id. Herbert also attacked question number two as
being immaterial once the court disregards question number one. Id.
2. Expert Testified the Well Water was Harmful to Humans and Animals and Full of Sand
As described above in paragraph B of the Statement of Facts, lay and expert
testimony was provided to the jury that the wells in question did not produce good
water and were not drilled to a depth of 250 feet. Walker stated that he could not
challenge their testimony as to the water quality on well number one. No evidence
was provided to contradict the testimony or conclusions of Randall or his expert
Frist.
The evidence laid out above in paragraph B of the Statement of Facts is
17 sufficient to support a jury verdict that Walker did not comply with the terms of the
Contract found in question number one. The trial court erred in disregarding the
question number two.
D. Question Number Three: Damages
Question number three requested damages for the breach of the oral
agreement found in question number two, with the following element of damage
for the jury’s consideration: “The difference in the value of work as agreed to by
the parties and the value of the work performed” (C.R., at p. 704). The jury
responded with the amount “$42,500.00.” Id.
Herbert’s JNOV attacked question number three claiming there was no
evidence to support it or as being immaterial once the court disregards Question
number one. (C.R., at p. 710).
2. $89,596.06 for Worthless Wells
Randall testified that he bargained for and paid $89,596.06, including the
value of the drilling rig and the materials bought, for the three wells. (R.R. Vol. 3,
at p. 60:22-24). Randall testified that the wells drilled for him by Walker were of
no value. (R.R. Vol. 3, at p. 71:6-13).
In Palestine, the well driller contended that there was insufficient evidence
to support the damage award for the breach of contract. Palestine Water Well 18 Servs., Inc., 188 S.W.3d at 324-27. There the evidence presented detailed
$61,289.18 in damages, but only $23,678.08 was awarded. Id. The court noted
that:
Water wells that do not produce water as contractually agreed upon have no value to the landowner. We hold that as a matter of law, the well had no value to Vance Sand. Therefore, Vance Sand received no value for the $61,289.18 that it parted with. The $23,678.08 awarded by the jury on Vance Sand's contract cause of action was within the range of up to $61,289.18 that it could have determined “Palestine” was liable for under this contract. It is well established that in resolving damage issues, a jury's finding will be upheld if it is within the range of the testimony regarding the amount of damages incurred.
Id. (internal cites omitted). Because the damages awarded on question number two
are within the range of evidence presented at trial, the jury’s award had sufficient
legal evidence supporting it. The trial court erred in granting the JNOV as to
question number three.
3. Walker’s Attorney Stated in his Closing Arguments that the Market Value of the Wells was $22,000.00
In the alternative from the arguments raised above, if this court finds there
was not sufficient evidence to uphold the jury’s findings that the three well’s
market value was at least $42,500.00, this court should find the value was at least
$22,000.00. Walker’s attorney instructed the jury in his closing remarks that the
market value of the three wells as bargained for was $22,000.00. (R.R., Vol. 4 at p.
37:22-38:19). This is evidence in the form of an admission against party interest
19 and is legally sufficient evidence for the jury to uphold the jury’s findings up to
$22,000. Id.
Furthermore, Frist testified that a local well driller informed him that he
would have drilled the same wells for $22,000.00. (R.R., Vol. 3 at p. 198:12-
199:1). This is further evidence to support the jury’s findings of damages up to
$22,000.00. If this court finds that there was not enough evidence to support the
jury’s finding of damages in the amount of $42,500.00, Randall requests the court
reverse and remand a judgment consistent with upholding the jury’s findings in
question number three up to $22,000.00.
E. Question Number Four Attorney’s Fees
Question number four requested the jury decide the amount of reasonable
and necessary attorney’s fees for the services of Randall’s attorneys through trial.
(C.R., at p. 704). The jury responded with the amount “$30,845.00.” Id. During the
trial, Walker elected not to cross-examine Randall’s attorney as to the reasonable
and necessary attorney’s fees. (R.R. Vol. 3, at p. 212:4-10).
Herbert’s JNOV argued there was no evidence to support question number 4
or it was immaterial once the court disregarded question number one. (C.R., at p.
710). Herbert added a small amount of description to this attack stating that
“[Randall] failed to provide the evidence required by Texas law to support an 20 award of attorney’s fees.” Id. Herbert’s Post-Verdict Brief offered no further
discussion of the “evidence required by Texas law” referred to in his JNOV. (C.R.,
at p. 724-26).
2. Uncontested, Reasonable Testimony Established the Attorney’s fees as a Matter of Law
“[W]here the testimony of an interested witness is not contradicted by any
other witness, or attendant circumstances, and the same is clear, direct, positive,
and free from contradiction, inaccuracies, and circumstances tending to cast
suspicion thereon, it is taken as true, as a matter of law.” Ragsdale v. Progressive
Voters League, 801 S.W.2d 880, 882 (Tex. 1990); see Lofton v. Texas Brine Corp.,
777 S.W.2d 384, 386 (Tex. 1989). This is “especially true where the opposing
party has the means and opportunity of disproving the testimony, if it is not true,
and fails to do so.” Ragsdale, 801 S.W.2d at 882.
In determining if attorney’s fees are established as a matter of law, the
reviewing court may look to the following:
a) whether the opposing party had the means and opportunity of
disproving or impeaching the testimony and failed to do so (Cullins v.
Foster, 171 S.W.3d 521, 538-39 (Tex. App.- Houston [14th Dist.] 2005, pet.
denied); Brown v. Bank of Galveston, 930 S.W.2d 140, 145 (Tex. App.-
Houston [14th Dist.] 1996), aff’d, 963 S.W.2d 511 (Tex. 1998),
21 b) whether the fee is unreasonable in light of the amount involved and
the results obtained (Midland Western Bldg., L.L.C. v. First Serv. Air
Conditioning Contractors, Inc., 300 S.W.3d 738, 739 (Tex. 2009)),
c) whether attorney’s fees billing records were introduced as evidence
(El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761-62 (Tex. 2012); Schlager v.
Clements, 939 S.W.2d 183, 193 (Tex. App.- Houston [14th Dist.] 1996, writ
denied)), or
d) whether the attorney’s work was even necessary (Rosenblatt v.
Freedom Life Ins. Co. of Am., 240 S.W.3d 315, 323 (Tex. App.- Houston
[1st Dist.] 2007)).
Randall’s attorney testified as to the reasonable and necessary attorney’s
fees incurred, including segregating fees for Breach of Contract. (R.R. Vol. 3, at p.
210:5-212:10). These fees were necessary and reasonable in light of the injury
sustained, loss of $89,596.06 for three bad wells, and the results obtained, a jury
verdict for $42,500.00. (R.R. Vol. 7, at p. 68; and C.R., at p. 704). Herbert failed to
make any challenges to the testimony placed before the trier of fact as to the
reasonableness or necessity of those fees. (R.R. Vol. 3, at p. 212:4-10). Because
the testimony of Randall’s attorney meets the requirements laid out in Ragsdale, it
established as a matter of law the reasonableness and necessity of the attorney fees
incurred by Randall. 22 3. Evidence was put before the jury of at least $30,845.00 in reasonable attorney fees.
In general, the reasonableness and value of attorney’s fees is a question of
fact for the jury’s determination. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.
1998); Brown, 930 S.W.2d at 145. “The reasonableness of attorney’s fees is
ordinarily left to the factfinder, and a reviewing court may not substitute its
judgment for the jury’s.” Smith v. Patrick W.Y. Yam Trust, 296 S.W.3d 545, 546
(Tex. 2009).
It is Herbert’s burden to show that there is no evidence supporting the Jury’s
award of attorney’s fees. Cale’s Clean Scene Carwash, Inc. v. Hubbard, 76
S.W.3d 784, 786 (Tex. App.- Houston [14th Dist.] 2002, no pet.) This Court must
first examine the record for evidence to support the jury finding while ignoring all
evidence to the contrary. Id.
Even if the evidence put before the jury failed to establish the attorney’s fees
as a matter of law, there is still some evidence to support the jury’s award of
attorney’s fees. The trial court erred in disregarding the question number four when
attorney’s fees were established as a matter of law, and in the alternative, were
upheld by sufficient credible evidence.
F. Request to Find a Judicial Admission: Raised as to Question One and Two
Herbert’s JNOV attacked question number one and two claiming there was a
23 fact established to the contrary as a matter of law, or a judicial admission. (C.R., at
p. 710).
As to question number one, the explanation given in the JNOV for this
argument was “[Randall]’s own testimony constitutes a judicial admission that he
did not an [sic] agreement with [Walker] of the nature asked about in question
one.”Id. Herbert’s Post-Verdict Brief offered no further discussion, explanation of
this argument. (C.R., at p. 724-26).
As to question number two, no explanation was given in the JNOV or Post
Verdict Brief as to what terms were at issue or where the contradiction lay. Id. No
objections were made at the time of submission of jury question one or two based
upon the existence of a judicial admission. (R.R. Vol. 4, at p. 5:6-7:7).
1. Herbert Cannot Rely on a Judicial Admission that He Failed to Protect
This court need not reach the issue of whether a judicial admission existed in
the testimony at trial as Herbert failed to object to the submission of evidence,
testimony or jury questions because they were contrary to the facts established in a
judicial admission. As such, Herbert cannot rely upon a judicial admission to
retroactively invalidate evidence in support of the jury questions. See Marshall v.
Vise, 767 S.W.2d 699, 700 (Tex. 1989); Hurlbut v. Gulf Atlantic Life Ins. Co., 749
S.W.2d 762, 765 (Tex. 1987).
24 In Hurlbut v. Gulf Atlantic Life Ins. Co., the trial defendant failed to make an
objection to evidence or testimony during its admission at trial as being contrary to
a judicial admission. Hurlbut, 749 S.W.2d at 765. The first mention of a judicial
admission came in the defendant’s motion for JNOV. Id. The court declared that:
“We need not decide whether plaintiffs' pleadings clearly and unequivocally
concede the existence of facts amounting to a judicial admission of limitations
because defendants did not stand on this alleged admission.” Id. The court further
instructed the defendant that a “party relying on an admission must protect it by
objecting to the introduction of evidence contrary to the admission and by
objecting to the submission of any issue bearing on the fact or facts admitted.” Id.
Because Herbert failed to raise the issue to the trial court at the time of the
submission of the questions, he cannot raise the issue of a judicial admission. The
trial court erred in relying upon judicial admissions to disregard the jury’s findings.
2. Contradictory Testimony is a Quasi-Admission for the Fact Finder to Resolve
In Herbert’s JNOV, he made an accusation that a fact was established as a
matter of law or a judicial admission occurred contrary to the findings in question
number one.
A judicial admission is “a formal waiver of proof usually found in pleadings
or the stipulations of the parties.” Mendoza v. Fidelity & Guar. Ins. Underwriters,
25 Inc., 606 S.W.2d 692, 694 (Tex.1980). A judicial admission should be
distinguished from a “quasi-admission,” which is a party's testimonial declaration
that is contrary to the party's position. See Id.; TX Far West, Ltd. v. Tex. Invs.
Mgmt., 127 S.W.3d 295, 308 (Tex. App.—Austin 2004, no pet.). Quasi-admissions
are “merely some evidence, and they are not conclusive upon the admitter.”
Mendoza, 606 S.W.2d at 694, citing Harris Cnty. v. Hall, 172 S.W.2d 691, 694-95
(Tex. 1943). The trier of fact must decide what weight to give quasi-admissions.
Id.
A party’s testimonial quasi-admission will preclude recovery if it meets the
requirements set out in Griffin v. Superior Insurance Co., 338 S.W.2d 415, 419
(Tex.1960) and United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224,
229 (Tex.Civ.App.—San Antonio 1951, writ ref’d n.r.e.).
Herbert made no attempt to reveal the judicial admission, or “fact
established contrary as a matter of law” or overcome the “hypothesis of a mere
mistake or slip of the tongue.” Mendoza, 606 S.W.2d at 694. Herbert failed to
uphold his burden before the trial court to prove that a fact was established as a
matter of law or that a judicial admission occurred. Without any guidance from
Herbert, the trial court erred in disregarding question number one and two based
upon a judicial admission or fact established as a matter of law.
26 G. Walker Water Wells did not file any Post-trial Motions.
WWW did not file any challenges to the jury findings. (C.R., at p. 709 and
724). The trial court’s judgment states that the “Defendants moved” for the JNOV
and that the “Defendants’ motion should be granted.” The Judgment then rendered
was in favor of all Defendants therein, both Herbert and WWW. (C.R., at p. 739).
The trial court erred in issuing a take nothing judgment as to all parties and
all claims as WWW made no objections to the jury responses and filed no motions
to which the trial court could grant. The trial court’s issuance of a take noting
judgment granted relief to a party that neither request it nor upheld their burden of
proving that they deserved it.
CONCLUSION
There was more than sufficient evidence presented in the trial to uphold the
jury’s response to questions one through four. None of these questions were
immaterial to the claim before the jury. Herbert failed to show that a judicial
admission occurred or protect that judicial admission by using it to object to the
submission of evidence or jury questions. Since the jury returned a clear verdict,
further fact finding is unnecessary. Appellant asks that this court reverse the trial
court’s judgment and render a final judgment for Appellant in accordance with the
jury’s findings. (C.R. at p. 699-707). Miller v. Bock Laundry Machine Co., 568
S.W.2d 648, 652 (Tex. 1977) 27 PRAYER
Appellant, Terry Randall, prays that this Court grant his Appeal and reverse
the Trial Court’s Judgment and render a judgment in accordance with the jury’s
findings in Appellant’s favor of $42,500.00 in damages; attorney’s fees of
$30,845.00; costs of court and appeal; pre-trial interest, and post-judgment interest
as provided by law and for any other award Appellant is due in equity.
Respectfully submitted,
THE WELSCHER LAW FIRM
/s/ S. Cory Sells S. Cory Sells State Bar No. 24075525 Craig Welscher State Bar No. 21167200 The Welscher Law Firm, P.C. 1111 North Loop West, Suite 702 Houston, Texas 77008 (713) 862-0800 – Telephone (713) 862-4003 – Facsimile Email: csells@welscherlaw.com Attorneys for Appellant
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing instrument is in compliance with the word
count limit of TRAP 9.4(i)(2)(B) of 15,000 words as it contains 7,295 words.
/s/ S. Cory Sells S. Cory Sells 28 CERTIFICATE OF SUPPORT
I certify that I have reviewed the record and brief and have concluded that
every factual statement made in the brief is supported by competent evidence
included in the appendix or record.
/s/ S. Cory Sells S. Cory Sells
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
instrument was forwarded to all known counsel of record in the manner required
by Texas Rule of Appellate Procedure 9.5, on this the 29th day of September, 2015.
Via Electronic Service Alex Metcalf 807 Pecan Street Bastrop, Texas 78602 /s/ S. Cory Sells S. Cory Sells
29 APPENDIX
a. Charge of the Court b. Defendant’s Motion For Judgment Non Obstante Veredicto
c. Defendant, Herbert Walker’s Post Verdict Brief d. Judgment
ii. Excerpts of Examination of Herbert Walker
i. Objections By Mr. Metcalf, Attorney for Appellees on Submission of Jury Question One and Two
a T HE W ELSCHER LAW FIRM A P ROFESSIONAL C ORPORATION A T T O R N EYS A T L A W i
CRAIG WELSCHER 1111 North Loop West, Suite 702 Tel: (713) 862-0800 SHAREHOLDER Houston, Texas 77008 Fax: (713) 862-4003
September 29, 2015
Via ProDoc Electronic Filing Jeffrey D. Kyle, Clerk 3rd Court of Appeals P.O. Box 12547 Austin, Texas 78711-2547
Re: Court of Appeals Number:03-15-00317-CV Trial Court Case Number: 423-2441;Terry Randall v. Herbert J. Walker d/b/a Walker Water Well; and Walker Water Well Services, LLC
Honorable Clerk: Enclosed please find following: • Appellant Brief
Should you have any questions regarding the enclosed, please contact our office. Thank you for your assistance in this matter.
Very truly yours,
Connie Gilbert /e/ Connie Gilbert, Paralegal to Craig Welscher service@welscherlaw.com
CCG//pld Enclosures: As Stated cc: Via Facsimile: (512) 303-6766 and/or Via Electronic Mail: alex@lostpineslawyer.com Alex Metcalf Attorney at law 807 Pecan Street Bastrop, Texas 78602