Opinion
No. 05-16-00598-CV
05-07-2018
MARC HEALEY, Appellant v. NATASHA ROMERO F/K/A/ NATASHA HALL AND ROYCE HALL, III, D/B/A NO LIMIT RETRIEVERS, Appellees
On Appeal from the County Court at Law No. 2 Kaufman County, Texas
Trial Court Cause No. 92099CC2
MEMORANDUM OPINION
Before Justices Lang-Miers, Evans, and Schenck
Opinion by Justice Lang-Miers
After a bench trial, the trial court rendered judgment that Natasha Hall and Royce Hall III, d/b/a No Limit Retrievers are the owners of the Labrador retriever female "Road Warrior's Princess Xena" ("Xena"). Because the evidence was sufficient to support the trial court's judgment, we affirm.
In our Order of December 1, 2016, we granted the motion of appellee Natasha Hall to change the style of this appeal to "Marc Healey v. Natasha Romero f/k/a Natasha Hall and Royce Hall, III, d/b/a No Limit Retrievers."
BACKGROUND
The Halls brought this suit against Healey seeking a declaratory judgment that they are the lawful owners of Xena, an elite-pedigreed female Labrador retriever. The Halls claimed that they made an oral contract with Healey in the summer of 2013 to purchase Xena, and that Healey breached that agreement by failing to sign necessary registration papers. In the alternative, the Halls claimed that they were entitled to substantial damages under the theories of quantum meruit and promissory estoppel, having cared for Xena since 2013 and her litter of seven puppies since their birth in June 2014. Healey answered, raising the affirmative defenses of the statute of frauds and failure of consideration. In addition, Healey filed a counterclaim for conversion.
After a bench trial, the trial court rendered judgment for the Halls. Healey's request for findings of fact and conclusions of law was not timely; consequently, the trial court did not make any findings or conclusions. Healey's motion for new trial was overruled by operation of law. This appeal followed.
Healey raised three issues in his original appellate brief. Two of those issues, complaining about the lack of a reporter's record, have been resolved in Healey's favor by this Court's Order of October 5, 2017, and the filing of a reporter's record in this appeal. The only remaining issue is Healey's challenge to the sufficiency of the evidence to support the trial court's judgment.
STANDARD OF REVIEW
When no findings of fact were filed, as in this case, the reviewing court implies all necessary findings to support the judgment. Torrington Co. v. Stutzman, 46 S.W.3d 829, 842 (Tex. 2000). Implied findings of fact, like the trial court's findings, may be challenged for legal and factual sufficiency. McCord v. Goode, 308 S.W.3d 409, 412-13 (Tex. App.—Dallas 2010, no pet.). The standard of review is the same as that applied to a jury's findings and a trial court's findings of fact. Affordable Power, L.P. v. Buckeye Ventures, Inc., 347 S.W.3d 825, 829 (Tex. App.—Dallas 2011, no pet.). However, where no findings of fact were entered, the trial court's judgment will be affirmed if it can be upheld upon any basis that has support in the record under any theory of law applicable to the case. Id. at 829-30.
When, as here, the challenging party did not have the burden of proof at trial, the challenging party must demonstrate on appeal that there is no evidence to support the trial court's adverse findings. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983); Pete Dominguez Enters., Inc. v. County of Dallas, 188 S.W.3d 385, 387 (Tex. App.—Dallas 2006, no pet.). Under the no-evidence standard of review, we consider the evidence in the light most favorable to the finding, indulging every reasonable inference in support. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). A legal insufficiency challenge fails if there is more than a scintilla of evidence to support the verdict. Affordable Power, L.P., 347 S.W.3d at 829-30. If, however, the evidence offered to prove a vital fact is so weak as to do no more than create a surmise or suspicion of its existence, the evidence is no more than a scintilla and is legally no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).
For his factual sufficiency challenge, Healey must demonstrate there is insufficient evidence to support the adverse finding. Pulley v. Milberger, 198 S.W.3d 418, 426 (Tex. App.—Dallas 2006, pet. denied). In reviewing a factual sufficiency challenge, we consider and weigh all of the evidence in support of and contrary to the trial court's finding and will set aside the finding only if the evidence supporting the finding is so slight, or the evidence against it so strong, that the finding is clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam). The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. Pulley, 198 S.W.3d at 427.
In a bench trial, the trial court, as fact finder, is the sole judge of the credibility of the witnesses. Weisfeld v. Tex. Land Fin. Co., 162 S.W.3d 379, 380-81 (Tex. App.—Dallas 2005, no pet.). The trial court may take into consideration all the facts and surrounding circumstances in connection with the testimony of each witness and accept or reject all or any part of that testimony. Id.
DISCUSSION
The existence of a valid contract is one of the essential elements of a breach of contract claim. See Kay v. N. Tex. Rod & Custom, 109 S.W.3d 924, 927 (Tex. App.—Dallas 2003, no pet.) (setting out elements of breach of contract claim). Parties form a binding contract when the following elements are present: (1) an offer, (2) an 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. Levetz v. Sutton, 404 S.W.3d 798, 803 (Tex. App.—Dallas 2013, pet. denied).
Whether the parties formed a contract is generally a fact question, although it may be determined as a matter of law. See WTG Gas Processing, L.P. v. ConocoPhillips Co., 309 S.W.3d 635, 643 (Tex. App.—Houston [14th Dist.] 2010, pet. denied); see also Foreca, S.A. v. GRD Dev. Co., 758 S.W.2d 744, 746 (Tex. 1988) (whether parties intended to enter into binding agreement is often question of fact). An enforceable and legally binding contract exists if it is sufficiently definite, certain, and clear in its essential terms. See Fischer v. CTMI, L.L.C., 479 S.W.3d 231, 237 (Tex. 2016).
The statute of frauds in section 2.201 of the business and commerce code provides that "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." TEX. BUS. & COM. CODE ANN. § 2.201(a) (West 2009). But a party's partial performance of the contract may remove a contract from the statute's purview. Duradril, L.L.C. v. Dynomax Drilling Tools, Inc., 516 S.W.3d 147, 160-61 (Tex. App.—Houston [14th Dist.] 2017, no pet.). The partial performance must be "unequivocally referable" to the agreement and corroborative of the fact that a contract was actually made. Id. (citing Nat'l Prop. Holdings, L.P. v. Westergren, 453 S.W.3d 419, 426 (Tex. 2015) (per curiam)). "The performance a party relies on to remove a parol agreement from the statute of frauds 'must be such as could have been done with no other design than to fulfill the particular agreement sought to be enforced.'" Id. (quoting Berryman's S. Fork, Inc. v. J. Baxter Brinkmann Int'l Corp., 418 S.W.3d 172, 193 (Tex. App.—Dallas 2013, pet. denied)).
Healey challenges the sufficiency of the evidence to support the trial court's declaration that the Halls are Xena's owners. He contends there was no oral contract; that any oral contract is barred by the statute of frauds; and that if there was an oral contract, the Halls breached it.
The Halls offered evidence of the terms of the contract. Both Royce and Natasha testified that they entered into a contract with Healey on the following terms:
• Xena would remain with the Halls until her next period of estrus after July 2013, at which time she would be bred to a high-quality sire approved by the parties;
• the Halls would be responsible for stud fees, veterinary expenses and other costs of maintaining, breeding, and whelping Xena's puppies; and
• when enough of Xena's puppies from her next litter had been sold to pay the breeding costs and purchase price, the Halls would pay Healey $6,500 in cash, and give Healey his choice of the female puppies Xena delivered.
The Halls offered evidence at trial to support these contentions. The Halls had a close relationship with Healey; he lived in their home for extended periods and had loaned them another dog, Bud, to help them develop their training skills. Xena had lived with the Halls once before, and Natasha had whelped a previous litter of Xena's. Healey left Xena with the Halls in July 2013 in accordance with the agreement. The Halls corresponded with Healey about a suitable stud. Natasha, who has a master's degree in animal science with a focus on reproductive physiology, genetics, and animal breeding, did research on Xena's DNA in anticipation of Xena's breeding. They consulted with Healey about a suitable stud, and Healey made the arrangements. Healey made the $500 deposit on the stud fee while he was living at the Halls' home as a convenience to them, and they intended to reimburse him. When Xena was in heat, Royce took her to Houston for artificial insemination with the chosen stud. Xena continued to live with the Halls, and Natasha whelped the litter. The Halls paid all of the veterinary bills for Xena and the puppies, and for their food, care, and boarding. Healey, however, reneged on the contract and refused their check for $7,000 tendered to pay the $6,500 contract price and to reimburse Healey for the stud fee deposit. Healey also refused to meet with the Halls to choose a puppy from Xena's litter. The Halls' testimony was supported with documentary evidence of veterinary bills and other expenses related to Xena's and her puppies' care.
Healey, in turn, relies on evidence that he contends is more credible than the Halls' testimony and supporting exhibits. He argues:
1. The Halls testified that the negotiations were made when Healey came to Dallas to train dogs with them in July 2013. But he actually came to Dallas for his mother's funeral, and no one would train climate-sensitive dogs like Xena in Dallas in July. He had very little time on that trip to do any negotiations in any event, and the Halls' testimony was inconsistent on how much time he spent with them.
2. The real reason he left Xena with the Halls at the end of that trip was so that they could use her for training. He had left another dog with them in the past for the same purpose.
3. The terms of the contract were not clear:
a. Natasha was unsure whether the $6,500 price included a puppy for Healey or not;
b. The Halls offered conflicting evidence about whether the choice of the stud would be mutual, or at Healey's discretion, and whether the stud had to be "chocolate factored"; and
c. It was not clear which puppy Healey would get out of the litter, whether male or female, or first pick or some other pick.
4. Healey would never have agreed to the contract terms because:
a. He would never have agreed to breed Xena at her next heat cycle, because to do so would be detrimental to her health;
b. He did not agree, under a previous oral contract to sell Xena to Aaron Homburg, that the contract would include the right to breed Xena in the future;
c. He would never have agreed to sell Xena to the Halls because of their poor treatment of the animals in their care.
5. The Halls did not ask for or get a written agreement, but they should have known to do so.
6. The Halls would not return his calls, so he could not carry out other arrangements he had made for whelping Xena's litter.
7. The parties acted contrary to the alleged contract terms:
a. Healey paid $500 of the stud fee;
b. Healey made the arrangements for breeding Xena;
c. When there were problems with whelping, the Halls called Healey and asked him to call the vet to authorize treatment for Xena;
d. Natasha asked Healey whether she should advertise that Xena's puppies were for sale, and if so, what the asking price should be;
e. There was no mention of any contract in the frequent emails the parties exchanged between July 2013 and January 2014; and
f. The Halls refused to let him see the puppies, so the term of the contract allowing him to choose one was not fulfilled.
8. The third-party witnesses who testified at trial supported Healey's version of events. Derrick Crews testified that he did not hear any conversation where Healey confirmed any agreement to sell Xena to the Halls, even though Natasha said he did. Chris Manuel testified that Royce admitted Healey refused to sell Xena to him. And Joshua Glover testified that Healey said he would never sell a dog to the Halls
because of their poor treatment of animals in their care. Aaron Homburg testified that Healey took Xena back after Homburg was unable to pay the agreed purchase price for her.
9. Healey orally contradicted a statement by Hall's father that Xena no longer belonged to Healey, so the Halls should have known there was no contract.
The trial court was the sole judge of the credibility of the witnesses and their testimony regarding each of these contentions. Weisfeld, 162 S.W.3d at 380-81. The trial court could consider all the facts and surrounding circumstances in connection with the testimony of each witness and accept or reject all or any part of that testimony. Id. The Halls offered evidence of the contract and evidence establishing the partial performance exception to the statute of frauds, and the trial court could have relied on this evidence in rendering its judgment. See Affordable Power, L.P., 347 S.W.3d at 829-30 (trial court's judgment may be affirmed if it can be upheld on any basis that has support in the record under any applicable theory of law).
Healey also argues, however, that the "partial performance" exception to the statute of frauds does not apply, because his own partial performance is not "unequivocally referable" to the contract to sell Xena. See Duradril, L.L.C., 516 S.W.3d at 160-61 (discussing partial performance exception to statute of frauds). He contends that his leaving Xena with the Halls in July 2013 is equally consistent with his prior conduct of leaving a dog with the Halls for training. But it is not Healey's partial performance that is at issue; instead, it is the Halls' performance, which was established by their testimony and their documentary evidence. See id. at 161 ("[P]artial performance takes a contract out of the statute of frauds when the party seeking enforcement of the contract partially performed." (internal quotation omitted and emphasis added)).
We conclude that there is more than a scintilla of evidence to support the trial court's implied findings, and that the findings are not clearly wrong and unjust. See Affordable Power, L.P., 347 S.W.3d at 829-30 (legal sufficiency standard); Cain, 709 S.W.2d at 176 (factual sufficiency standard). We decide Healey's third issue against him.
CONCLUSION
We affirm the trial court's judgment.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE 160598F.P05
JUDGMENT
On Appeal from the County Court at Law No. 2, Kaufman County, Texas
Trial Court Cause No. 92099CC2.
Opinion delivered by Justice Lang-Miers; Justices Evans and Schenck participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 7th day of May, 2018.