Opinion
NO. 01-15-00861-CV
07-06-2017
TERRELL WILLIAM PROCTOR D/B/A T.W. PROCTOR & ASSOCIATES AND PRECO, Appellants v. QUALITY SIGNS, INC., Appellee
On Appeal from the 80th District Harris County, Texas
Trial Court Case No. 2013-38503
MEMORANDUM OPINION
Terrell William Proctor d/b/a T.W. Proctor & Associates and Preco (collectively, "Proctor") appeal the trial court's take-nothing judgment on their claims for breach of contract, violations of the Deceptive Trade Practices Act ("DTPA"), fraud, breach of fiduciary duty, and negligence against Quality Signs, Inc., and in favor of Quality Signs on its breach of contract counterclaim. On appeal, Proctor raises four issues with multiple sub-issues challenging the trial court's final judgment as well as various rulings by the court during the course of the proceedings. We affirm.
Background
On January 4, 2013, Proctor sent a letter to sign manufacturers requesting bids for the construction and installation of a replacement sign for his law office. On January 11, 2013, Dennis Crary, a Quality Signs salesman, emailed Proctor and attached a preliminary drawing of a proposed sign as part of Quality Signs's bid.
In October 2010, a drunk driver collided with the original sign and demolished it.
On March 18, 2013, following a series of communications between the parties negotiating the price down from the original proposed price of $9,343, Proctor accepted Quality Sign's bid. On March 19, 2013, Proctor and Crary, on behalf of Quality Signs, executed a contract for the construction and installation of the sign. The contract reflects a total price of $6,495.00, not including permits, with 50% of the price (i.e., $3,000) to be paid as a down payment and the balance ($3,495) due upon completion.
On April 18, 2013, Quality Signs filed an application with the City of Houston for a sign permit. On May 7, 2013, Quality Signs advised Proctor that the City had rejected the sign permit application because, among other things, Proctor did not have an occupancy permit for the property on which the sign was to be installed. On May 15, 2013, Proctor obtained an occupancy permit from the City. Quality Signs re-submitted the sign permit application and, on June 12, 2013, the City granted Proctor a sign application permit and an electrical permit. After Quality Signs received the permit, it began fabrication of Proctor's sign.
On June 28, 2013—approximately two weeks after issuance of the sign permit—Franklin Baker, Quality Sign's owner, went to Proctor's property to begin marking utilities for installation of the sign. When Baker informed Proctor that the sign was ready to be installed, Proctor told him that he had filed suit against Quality Sign that morning. In his petition, Proctor alleged causes of action for breach of contract, fraud, breach of fiduciary duty, negligence, and DTPA violations.
On July 5, 2013, Proctor wrote a letter to Baker proposing the following options to resolve the situation: (1) Quality Signs install the sign and the parties then negotiate the remaining amount to be paid; (2) the parties agree to the remaining amount to be paid, Quality Sign installs the sign within five days, and Proctor dismisses the lawsuit; (3) Quality Sign refuses to install the sign without full payment of the balance and Proctor proceeds with his lawsuit; or (4) Proctor pays the balance owing, Quality Sign installs the sign within five days, and Proctor proceeds with his lawsuit. On August 2, 2013, Quality Sign sent a demand letter to Proctor requesting payment of the remaining amount due under the parties' contract.
On December 3, 2013, Quality Sign filed its answer to Proctor's petition as well as counterclaims for breach of contract, suit on a sworn account, and quantum meruit. On December 29, 2014, Proctor filed a motion for summary judgment and set the motion for hearing on January 23, 2015. On January 20, 2015, Jim L. DeFoyd, Quality Sign's attorney at the time, filed a motion to withdraw and requested a continuance to allow Quality Signs to retain other counsel. On January 23, 2015, the trial court signed an order granting DeFoyd's motion to withdraw and ordering that the hearing on Proctor's summary judgment motion be reset. The hearing on Proctor's motion was re-set for April 17, 2015.
On April 7, 2015, the trial court denied Quality Sign's motion to continue the summary judgment hearing set for April 17 and its request for a telephone conference. Quality Signs filed its summary judgment response on April 10, 2015. Although the parties assert that the trial court denied Proctor's summary judgment motion on April 17, 2015, the record does not contain an order on the motion.
On August 12, 2015, the trial court held a one-day bench trial. At the conclusion, the trial court found against Proctor on his claims for breach of contract, DTPA violations, fraud, breach of fiduciary duty, and negligence, found in favor of Quality Signs on its breach of contract claim, and awarded $3,495 in damages to Quality Signs. This appeal followed.
Discussion
A. Motion for Summary Judgment and Motion for Withdrawal
In his first issue, Proctor contends that the trial court erred in denying his motion for summary judgment because (1) Quality Signs did not file a response to the motion; (2) the trial court denied the motion without giving a reason for its ruling; and (3) and no order was signed or entered. Proctor also argues that the trial court erred in re-setting the summary judgment hearing because DeFoyd's motion for continuance was untimely.
Initially, we note that the record before us does not include an order denying Proctor's motion for summary judgment. See G.M. Houser, Inc. v. Rodgers, 292 S.W.3d 87, 88 (Tex. App.—Dallas 2007, pet. denied) (concluding that where record contained no order denying summary judgment and defendant provided no citation to record showing that trial court ever ruled on its motion, defendant's issue presented nothing for review). However, assuming that the trial court denied the summary judgment motion, Proctor's complaint regarding the denial of his motion is still unavailing. The general rule is that a denial of a summary judgment is not reviewable on appeal. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.3d 623, 625 (Tex. 1996); Mitchell v. Mitchell, 445 S.W.3d 790, 801 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Further, where a motion for summary judgment is denied by the trial court and the case is tried on the merits, the order denying summary judgment cannot be reviewed on appeal. See Clark v. Dillard's, Inc., 460 S.W.3d 714, 724 (Tex. App.—Dallas 2015, no pet.) (citing Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966)); Anderton v. Schindler, 154 S.W.3d 928, 931 (Tex. App.—Dallas 2005, no pet.) ("The denial of a motion for summary judgment when followed by a conventional trial on the merits does not finally decide any issue pending before the trial court; the denial of a motion for summary judgment presents nothing for review."). Here, the trial court conducted a bench trial on the merits of the case. Thus, even if the trial court denied Proctor's summary judgment motion, the order denying the motion would present nothing for our review. See Moore v. Jet Stream Invs., Ltd., 261 S.W.3d 412, 427 (Tex. App.—Texarkana 2008, pet. denied). Similarly, Proctor's complaint with regard to the trial court's re-setting of the summary judgment hearing presents nothing for our review.
Proctor also argues that the trial court erred in granting DeFoyd's motion to withdraw because the motion was not supported by any medical evidence. On January 20, 2015, DeFoyd filed a motion to withdraw to allow Quality Signs to retain other counsel. In his motion, DeFoyd cited health reasons, among other things, and stated that he was withdrawing from all pending trial litigation. On January 23, 2015, the trial court granted DeFoyd's motion to withdraw.
Rule 10, which governs the withdrawal of counsel in civil cases, provides that "[a]n attorney may withdraw from representing a party only upon written motion for good cause shown." TEX. R. CIV. P. 10. We are aware of no authority—nor does Proctor direct us to any—requiring that a motion to withdraw be accompanied by medical evidence.
Proctor complains that the trial court's denial of his summary judgment motion, the granting of DeFoyd's motion to withdraw, and the re-setting of the summary judgment hearing violated his due process rights under the United States and Texas Constitutions. A review of the record reflects that Proctor did not raise a due process claim at any time during the proceedings in the trial court below. Having failed to do so, Proctor has not preserved this issue for appellate review. See TEX. R. APP. P. 33.1 (in order to preserve complaint for appellate review, record must show that appellant made complaint to trial court and stated grounds for ruling with sufficient specificity that trial court was made aware of complaint); see Tex. Dep't of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001) (noting that generally even constitutional challenges must have been asserted in trial court in order to be raised on appeal); Nivens v. City of League City, 245 S.W.3d 470, 475 n.6 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (holding that taxpayers failed to preserve their argument that trial court violated their due process rights by granting city's plea to the jurisdiction where taxpayers did not raise issue before trial court).
We overrule Proctor's first issue.
B. The Parties' Agreement
In his second issue, Proctor contends that the trial court erred in concluding that the written contract signed by the parties on March 19, 2013 was the parties' entire agreement. He asserts that the agreement includes two additional parts—Proctor's specification letter and Crary's oral request to modify the time frame for completion of the sign from three weeks to four to six weeks.
The specification letter, dated January 4, 2013, states, in relevant part:
To whom it may concern:
This is a letter to set out the specifications which I, as the owner of the property where the sign is to be installed is located, and which I believe are what I want in a new sign. I want to have you provide the following information in the form to be considered a bid. I plan to have this sign constructed as soon as possible.
. . . .
10. Sign to be started within no more than ten (10) business days (2 calendar weeks) of the date the contract is signed and down payment is made. Sign to be completed within one calendar week after the start of the work, i.e., and such date to be no later than three calendar weeks after date the contract is signed and down payment is made.
. . . .
Thank you for making a bid and I plan to let a contract within a week or less.
At trial, Proctor testified that Crary later orally requested a modification of the time frame for completion—from three weeks to four to six weeks—and that Proctor agreed to the modification. In support of his testimony, Proctor introduced a copy of Quality Sign's drawing on which Proctor had made the following notations: "17 Jan 2013—he will get me a bid Monday—take 4-6 weeks to complete sign" and "8 Mar 2013, 10 AM, $7822.09, 4-6 wks."
On March 19, 2013, the parties signed the written contract which reflected a total price of $6,495.00, not including permits, and stated "upon approval - 50% of total amount down & balance upon completion." The contract further states, "This contract is subject to all terms and provisions printed on the second page hereof and is not valid unless signed by authorized person for Quality Signs, Inc." The second page of the contract consists of a drawing of the sign to be constructed by Quality Sign. The contract does not state a time frame for completion or otherwise include language indicating that time was of the essence.
At the conclusion of trial, the court found that (1) Exhibit 8 [the March 19, 2013 contract] was the entire contract between the parties; (2) Proctor's specification letter was one of several proposals; (3) over the course of several proposals the price was negotiated down; (4) there was no evidence that the specification letter was accepted by Quality Signs or that it was referred to or incorporated into the March 19 contract; and (5) the March 19 contract does not include a term that time is of the essence.
The final judgment stated, in relevant part:
1. The operative agreement between the parties is Exhibit 8. None of the other documents are part of the Agreement and this exhibit alone is the Agreement between the parties.
2. All previous exhibits or proposals were merely negotiations and were not part of the final agreement as indicated above.
Proctor contends that, in addition to the March 19 contract, his specification letter and Crary's oral request to modify the time for completion of the sign are part of the parties' agreement. However, there is no evidence showing that Proctor's specification letter was accepted by Quality Signs, and it was neither referred to nor incorporated into the March 19 contract.
A review of the trial testimony further reflects that both parties repeatedly referred to the specification letter and alleged oral request as proposals or negotiations that preceded execution of the March 13 written contract. Negotiations preceding a written contract should not displace the terms of the written contract. Transcon. Realty Inv'rs, Inc. v. John T. Lupton Trust, 286 S.W.3d 635, 641 (Tex. App.—Dallas 2009, no pet.); Fisher Controls Int'l, Inc. v. Gibbons, 911 S.W.2d 135, 141-42 (Tex. App.—Houston [1st Dist.] 1995, writ denied). The parties' execution of a written contract presumes that all prior negotiations and agreements relating to the transaction have been merged into it, and it will be enforced as written and cannot be added to, varied, or contradicted by parole testimony. Baroid Equip., Inc. v. Odeco Drilling, Inc., 184 S.W.3d 1, 13 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); Barker v. Roelke, 105 S.W.3d 75, 83 (Tex. App.—Eastland 2003, pet. denied).
The trial court also noted that the March 19 contract did not include a term that time was of the essence. Time is not ordinarily of the essence, and even a date stated for performance does not mean time is of the essence. See Capcor at KirbyMain, L.L.C. v. Moody Nat. Kirby Houston S, L.L.C., 509 S.W.3d 379, 390 (Tex. App.—Houston [1st Dist.] 2014, no pet.); Kennedy Ship & Repair, L.P. v. Pham, 210 S.W.3d 11, 19 (Tex. App.—Houston [14th Dist.] 2006, no pet.). Rather, for timely performance to be a material term of a contract, "the contract must expressly make time of the essence or there must be something in the nature or purpose of the contract [and the circumstances surrounding it] making it apparent that the parties intended that time be of the essence." Capcor at KirbyMain, L.L.C., 509 S.W.3d at 390 (quoting Kennedy Ship, 210 S.W.3d at 19). "Unless the contract expressly makes time of the essence, the issue is a fact question." Breof BNK Tex., L.P. v. D.H. Hill Advisors, Inc., 370 S.W.3d 58, 64 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing Kennedy Ship, 210 S.W.3d at 19).
Here, the trial court was the trier of fact. The trial court noted in its oral ruling that the parties' March 19 contract did not expressly make time of the essence. Although Proctor's specification letter stated that he wanted to have the sign constructed "as soon as possible," within one calendar week after the start of work, or no later than three calendar weeks after the date the contract was signed and down payment made, there is no evidence that Quality Signs accepted this proposed term in what was merely a letter seeking bid proposals. The evidence is also undisputed that Proctor had been without a sign for more than two years before he contracted with Quality Signs.
Proctor also complains that the trial court incorporated a number of erroneous findings of fact and conclusions of law into the final judgment. The record contains findings of fact and conclusions of law that were not filed with or signed by the trial court. However, even if these findings and conclusions were signed by the trial court and incorporated into the judgment, Proctor did not file objections or request additional or amended post-judgment findings of fact and conclusions of law, and the trial court filed none. Accordingly, the trial court's judgment implies all findings necessary to support it, provided the necessary findings are raised by the pleadings and supported by the evidence. See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Wade v. Comm'n for Lawyer Discipline, 961 S.W.2d 366, 374 (Tex. App.—Houston [1st Dist.] 1997, no writ). We will affirm the judgment if it can be upheld on any reasonable theory consistent with the evidence and the governing law. See Volume Millwork, Inc. v. W. Hous. Airport Corp., 218 S.W.3d 722, 729 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). For the reasons discussed above, we conclude that the trial court properly found that the March 19 contract was the only agreement between the parties, and that the specification letter and the alleged oral request to modify the time period for completion of the sign were negotiations between the parties that were not made part of the agreement.
Proctor also contends that "a number of the portions of the [Business and Commerce Code] apply in this case . . . ." However, Proctor never pleaded a claim for violation of the Business and Commerce Code or otherwise raised this argument for the trial court's consideration. See TEX. R. APP. P. 33.1. Having failed to do so, he waived this argument.
We overrule Proctor's second issue.
C. Breach of Contract Counterclaim
In his third issue, Proctor contends that the trial court erred in finding that (1) Quality Signs delivered, or attempted to deliver, the sign to him; (2) Quality Signs was entitled to be paid the remaining balance; and (3) Proctor refused to accept the sign and pay the balance owed to Quality Signs. We understand Proctor to challenge the trial court's findings in favor of Quality Signs on its breach of contract counterclaim.
"The essential elements of a breach of contract claim are (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 as a result of the breach." CCC Grp., Inc. v. S. Cent. Cement, Ltd., 450 S.W.3d 191, 196 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (quoting B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 16 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)). Proctor argues that the trial court's findings related to the second and third elements—that Quality Signs delivered or attempted to deliver the sign to him, and that he breached the contract by refusing to accept the sign and pay the outstanding sum owed to Quality Signs under the contract—are contrary to the evidence presented at trial.
Although Proctor does not specify whether he is challenging the legal or factual sufficiency of the evidence, he cites Lee v. Dykes, 312 S.W.3d 191, 194 (Tex. App.—Houston [14th Dist.] 2010, no pet.) as authority that provides the "correct standard of review." Because the court in Lee applied a legal sufficiency standard of review, we will treat this issue as a challenge to the legal sufficiency of the evidence, reviewable under a "no evidence" standard.
To successfully challenge the legal sufficiency of a factfinder's finding that an opposing party met its burden of proof, the complaining party must show that there is no evidence that "would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). When reviewing a legal sufficiency challenge, we consider all of the evidence supporting the judgment, "credit[ing] favorable evidence if reasonable jurors could, and disregard[ing] contrary evidence unless reasonable jurors could not." Id. We consider the evidence in the light most favorable to the findings and indulge every reasonable inference that would support them. Id. at 822; see Zenner v. Lone Star Striping & Paving L.L.C., 371 S.W.3d 311, 314-15 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). If there is any evidence of probative force to support the finding, i.e., more than a mere scintilla, we will overrule the issue. See Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005).
At trial, Baker testified, in pertinent part:
Q: [Proctor] Okay. But will you agree that your company never brought a pole out to the property?
A: [Baker] That is correct.
Q: Never brought a sign out to the property?
A: That is correct, Mr. Proctor. Do you remember that you wouldn't allow it?
Q: Just please answer my question.
. . . .
Q: [Counsel for Quality Sign]: Why do you feel that he still owes you money, sir?
A: Because we fulfilled all we could and built a sign. He just wouldn't allow us to install it.
. . . .
Q: Were you able to deliver the final product?
A: No, sir.
Q: Why was that?
A: I was told not to.
Q: By who?
A: Mr. Proctor.
Q: And why did he tell you not to?
A; He had filed lawsuit.
Q: Okay. And he didn't want it?
A: I was hoping he would.
Q: But he indicated no?
A: No, sir.
. . . .
Q: [Proctor] What you're saying isn't true. You never communicated or talked to me about ever delivering this sign. All you did was - someone over there sent me a photograph after the lawsuit was filed of purportedly a sign in your warehouse and that's the only communication that I ever had?
A: [Baker] That is not correct, Mr. Proctor. I talked to you directly at your site and told you the sign - because I was there to mark so I could call underground utilities that a 48 hour process, then I could install your sign. I told you it would be ready in two days.
Q: That totally is not true, is it, Mr. Baker?
A: That is true.
We conclude that there was legally sufficient evidence to support the trial court's findings that Quality Signs attempted to deliver the sign to Proctor, and that Proctor breached the contract when he failed to accept delivery and pay Quality Signs the outstanding amount due under the contract. See Haggar Clothing, 164 S.W.3d at 388. We therefore overrule Proctor's third issue.
D. Alleged Due Process Violations
In his fourth issue, Proctor contends that the trial court violated his constitutional right to due process in several particulars. As previously noted, Proctor did not present a due process complaint to the trial court at any time during the proceedings below but instead raises it for the first time on appeal. See Sherry, 46 S.W.3d at 861 (noting that generally even constitutional challenges must have been asserted in trial court in order to be raised on appeal); Nivens, 245 S.W.3d at 475 n.6 (concluding that taxpayers failed to preserve their argument that trial court violated their due process rights by granting city's plea to the jurisdiction where taxpayers did not raise issue before trial court). Having failed to do so, Proctor has not preserved this issue for appellate review. See TEX. R. APP. P. 33.1 (in order to preserve complaint for appellate review, record must show that appellant made complaint to trial court and stated grounds for ruling with sufficient specificity that trial court was made aware of complaint). Accordingly, we overrule Proctor's fourth issue.
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Justices Jennings, Bland, and Lloyd.