Thornton, Robert A. v. AT&T Advertising, L.P. D/B/A AT&T Real Yellow Pages

Opinion

AFFIRM: Opinion issued December 18, 2012.

In The

(!uiir{ øf ipiats

Fift1i itrict tif ).xai at Ja1tai No. 05-1 1-00767-CV

ROBERT A. THORNTON, Appellant V.

AT&T ADVERTISING, L.P. d/b/a AT&T REAL YELLOW PAGES, Appellee

On Appeal from the 134th Judicial District Court Dallas County, Texas

Trial Court Cause No. 10-02275-G

OPINION

Before Justices Bridges, Richter and Lang Opinion By Justice Richter

Attorney Appellant Robert Thornton (“Thornton”) appeals the trial court’s judgment in this breach of contract suit against AT&T Advertising (AT&T”). After a trial on the merits, the trial court awarded AT&T damages in the amount of $21,620.29 plus attorney’s fees. In three issues. Thornton claims (1) there is legally no evidence of a valid contract between him and AT&T; (2) there is legally no evidence to support a breach of contract claim; and (3) there is legally no evidence to support an award based on quantum meruit. For the following reasons, we affirm the trial court’s judgment.

Backg round Ihornion and AT&T entered into agreements (or AT&T to provide Yellow Pages advertising for Thornton’s law practice. The first agreement was for advertising in the 2008 Dallas Companion Yellow Pages 1)irectory and the 2008 l)allas Yellow Pages Directory (“2008 Contract”). The second agreement was for advertising in the 2009 Dallas Companion Yellow Pages Directory and the 2009 Dallas Yellow Pages Directory (“2009 Contract”), Thornton made partial payments toward the balance of the 20(38 Contract but never paid anything toward the 2(309 Contract.

AT&T brought suit against Thornton for breach of contract and in the alternative quantum meruit for the advertising provided. Thornton answered the suit with a general denial. After a half-day bench trial, the court rendered judgment for AT&T. Thornton now appeals. Standards of Review A trial court’s findings of fact in a nonjury trial carry the same force and dignity as ajury’ s verdict onjury questions. Wright Group Architects-Planners, P1. L. C. v. Pierce, 343 S.W.3d 196. 199 (Tex. App.—Dallas 2011. no pet.). We review the legal sufficiency ofa trial court’s findings by the same standards that we apply to reviewing a jury’s answer. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).

We review a challenge to the legal sufficiency of the evidence in the light most favorable to the finding and indulge every reasonable inference that supports it. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). In reviewing a no-evidence point of

——

error, we credit the evidence and inlerences ii a reasonable Fact finder could and disregard all evidence and inferences to the contrary unless a reasonable fact finder could not. Id. at 827.

We sustain a no-evidence point only when the record discloses (I) a complete absence of evidence of a vital tact. (2) the court is barred by rules of law or of 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 established conclusively the opposite of the vital fact. See Citi of Keller, 168 S.W.3d at 810. If there is more than a scintilla of evidence to support the findings. the no—evidence challenge cannot be sustained. Catalina, 881 S.W.2d at 297. If the evidence is so weak as to do no more than creates a mere surmise or suspicion of its existence, it is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

We review a trial court’s conclusions of law de flOVO to determine whether the trial court drew the correct legal conclusions from the facts. Kahn v. Imperial Airport, L.P.. 308 S.W.3d 432, 437 (Tex. App.—Dallas 2010, no pet.); Bolle, Inc. v. Am. Greetings Corp., 109 S.W.3d 827. 831 (Tex. App.—Dallas 2003, pet. denied). Formation a/a va/ui contract

Thornton first contends there is legally no evidence of formation of a contract. He further claims the trial court’s findings of fact and conclusions of law are devoid of finding an enforceable contract.

The elements required for the formation of a valid contract are: (1) an offer, (2)

4

arceptance in strict compliance with the terms ot the otter, (3 a meeting of the minds, (4) each party’s consent to the terms, and ( ) execution and delivery of the contract with the intent that it be mutual and binding. Cessna 1irc1u/t Co. v. 1irc raft Network, L.L C. 213 S.W3d 455, 465 (TexAppDa[las 2006, pet. denied).

ihornton claims the documents otfered as contracts 1) impose no duty on AT&T; 2)

tail to show AT&T consented to any terms in the documents; and 3) tail to show acceptance by AT&T.

A review ot the record reveals copies of tour AT&T Yellow Pages documents entitled “Advertising Contract.” The first document is dated 8/08/2007, has an effective date of 01/01/2008, and indicates a Dallas designation. The document provides for details of a directory advertisement, including the monthly cost of $1 ,638 with billing information. The document further provides three paragraphs regarding the terms and conditions, a right to cancel, and a promise to pay followed by the customer’s printed name and lines provided for the customer’s signature, title, and date of signature. The signature on the second page of the document purports to be that of Robert A. Thornton signed on 8/08/2007.

The second “Advertising Contract” is also dated 8/08/2007. has an effective date of 01/01/2008, and indicates a Dallas Companion designation. The document provides for details of a directory advertisement, including the monthly cost of $163.80 with billing information. The document further provides three paragraphs regarding the terms and conditions, a right to cancel, and a promise to pay followed by the customer’s printed name and lines for the customer’s signature, title, and date of signature. The signature on the

5

second page of the document purports to be that of Robert A. Thornton signed on X/08/2007. The two documents effective (>1 It) l/20O are relerred to together as the ‘‘00X Contra CL”

The third ‘Advertisine Contract Order Page” is dated I 0/09/2008, has an effective -

date of 01/01 /2009. and indicates a Dallas designation. The document provides for details of a directory advertisement, including the monthly cost of SI ,307 with hilling information. The document further provides three paragraphs regarding the terms and conditions, a right to cancel, and a promise to pay followed by the customer’s printed name and lines for the customers signature. title, and date of signature. The signature on the second page of the document purports to be that of Robert A. Thornton signed on 10/08/2008.

And the fourth “Advertising Contract - Order Page” is dated 1 0/09/2008, has an effective date of 01/01/2009, and indicates a Dallas Companion designation. The document provides for details of a directory advertisement, including the monthly cost of $1 30.70 with hilling information. The document further provides three paragraphs regarding the terms and conditions, a right to cancel, and a promise to pay followed by the customer’s printed name and lines for the customer’s signature. title, and date of signature. The signature on the second page of the document purports to be that of Robert A. Thornton signed on 10/09/2008. The two documents effective 01/01/2009 are referred to together as the “2009 Contract.”

All four of the documents were initiated by AT&T, were on AT&T pre-printed forms, had terms filled-in and hand-written by AT&T representatives, and had a signature

6

purported to he ‘Rohert A. Ihornton on the customer signature line under CUSTOMER PROMISES IC) PAY At trial, AT&T presented copies of the Yellow Pages advertisements as evidence of their consent, execution and delivery of perlormance.

Thornton failed to testify or present any evidence during the trial proceedings.

Ihorntons all idavit. which was attached to Defendant’s Response to Plaintiff’s Motion for Summary Judgment. claims he did not sign the AT&T documents. However. AT&T presented evidence of Thornton making partial payments to AT&T for the 2008 Contract which is evidence of acceptance and consent to the terms as well execution and delivery of his promises made under the terms in the documents, See MG Bldg. Materials, Ltd. v. Moses Lopez: Custom homey. 179 S.W.3d 51. 6I62 (Tex. App.-San Antonio 2005. pet. denied,). After viewing all of the evidence in a light favorable to the verdict, we conclude the documents initiated by AT&T and purportedly signed by Thornton are valid contracts.

As for Thornton’s contention that the findings of fact and conclusions of law are devoid of a legal finding of an enforceable contract, we disagree. The trial court’s findings include, in relevant part. the following:

CONCLUSIONS OF LAW

I. Defendant breached the 2008 Dallas Yellow Pages Contract.

2. Defendant breached the 2009 Dallas Yellow Pages Contract.

We conclude the trial court must have found a valid contract in order to determine a breach of those contracts. Shariji v. Steen Auto.. LLC. 370 S.W.3d 126. 140 (Tex. App.—Dallas 2012, no peL) (stating the existence of a valid contract is a required element for a breach of contract claim). ihornion s lirsi issue is overruled. Breach of Coniracr

Next Thornton contends there is legally no evidence in the record to support a breach of contract award.

The elements of a breach of contract claim include (1) the existence of a valid contract, (2> performance or tendered performance by the plaintiff. (3) breach of the contract by the defendant, and (4) damages sustained by the plaintiff as a result of the breach, hi.

Specifically. Thornton claims there is legally no evidence (1) of a contract, (2) of performance by AT&T, and (3) of damages suffered by AT&T. As determined above, we have already found evidence of valid contracts between Thornton and AT&T. Next, as discussed above, AT&T produced the Yellow Page advertisements of Thornton’s law practice as evidence of AT&T’s performance for both the 2008 & 2009 Contracts. And lastly for damages. AT&T presented testimony of Thornton making partial payments on the 2008 Contract and paying nothing toward the 2009 Contract. We conclude the record supports the trial courts conclusion Thornton breached the 2008 & 2009 Contracts. Consequently. we overrule Thornton’s second issue, Conclusion The trial court’s order granting summary judgment did not specify the grounds upon which it was granted. We may affirm the judgment if any of the theories advanced are meritorious. See Provident Lif & Acc. Ins. Co. v. Knott, 128 S.W.3d 211,216 (Tex. 2003).

8

Because we conclude AT&T proved that Thornton breached both his 200 and 2009 Contracts for advertising as a matter of law and that there were no genuine issues of material tact, we need not iddress lhornton s third issue. See Tix. R. APP. P. 47.

l3ased On our conclusions above, we affirm the judgment of the trial court.

MARTIN RICHTER

JUSTICE

1 10767F.P05

((nun uf jucih

4

3iftI! Thitnict nf ixa tt Jat1a JUDGMENT

ROBERF A. THORNTON. Appellant Appeal froiii the 1 34th JudciaI District Court of Dallas County, Texas.

No, O5l LOO767CV V. (Tr.Ct No. I OM2275G).

Opinion delivered hy Justice Richter, AT&T ADVERTISING. L P. D/H/A AT&T Justices Bridges and Lang participating. REAL YELLOW PAGES, AppeHee

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED. It is ORI)ERID thaL appellee AT&T AI)VERTISLNG. LP. D/13/A AT&T REAL ‘y LLLOW PAGI’S icco’.ei its costs of this ippeal horn ppcIl mt ROBLRT \ I hORN ION

Judgment entered December 1 8, 201 2.

\I.\I.I I< RI( ‘II

.11 SI