Mohammad Hanif, D/B/A Pik N Pak v. Alexander Oil Company ( 2002 )

In The

Court of Appeals

For The

First District of Texas

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NO. 01-01-00954-CV

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MOHAMMAD HANIF, Appellant

V.

ALEXANDER OIL COMPANY, Appellee

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On Appeal from the County Court at Law

Washington County, Texas

Trial Court Cause No. 00-98

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O P I N I O N

Appellant, Mohammed Hanif, appeals from a judgment entered after a bench trial. The trial court rendered judgment holding appellant personally liable ⁽¹⁾ for breach of a contract to supply a certain brand of gasoline to a convenience store and awarded damages, prejudgment interest, and attorney's fees to the supplier, appellee, Alexander Oil Company (Alexander Oil). Appellant's six issues challenge the trial court's interpretation of the supply contract and the amounts awarded for certain damages and attorney's fees. We affirm.

Background

Alexander Oil supplied Coastal brand gasoline to the Pik n Pak convenience store in Alvin, Texas. An Alexander Oil salesman, Dennis Trigg, negotiated with appellant to supply the gasoline. Trigg had previously negotiated with appellant to supply gasoline to another convenience store. On October 21, 1997, appellant signed a Customer Credit Application and Payment Agreement (agreement) for Alexander Oil to provide the convenience store an estimated $10,000.00 worth of gasoline weekly. An additional letter to Alexander Oil, signed by appellant, set additional terms, including a seven-year term that would be extended if the convenience store did not purchase 4,200,000 gallons of fuel during that time. The agreement and the letter identified Qadir H. Ghaffir as owner and principal of the business and appellant as guarantor. Appellant identified himself as the owner of the convenience store in a letter he sent to Coastal Oil Company, in which he referred to his agreement with Alexander Oil as supplier and asked that Coastal approve the convenience store as a "branded" Coastal station. ⁽²⁾

Alexander Oil began delivering gasoline to the convenience store in October 1997 and continued until spring 2000, when the store's financial difficulties resulted in non-payment for fuel delivered to the store. Alexander Oil stopped delivering fuel, and the business failed. While the convenience store was in business, Alexander Oil (1) supplied gasoline at $0.02 per gallon over cost, plus $0.01 per gallon transportation, (2) arranged and paid for Coastal's "branding" the store, which included providing Coastal trademarking, trade dress, and credit-card imprinting, (3) paid the convenience store $9,000.00 as partial reimbursement for installing additional fuel pumps, and (4) provided a credit plan, all in compliance with the agreement and additional letter appellant signed as guarantor. When the business failed, the convenience store had an outstanding balance of $17,377.00 for fuel Alexander Oil had supplied.

Alexander Oil sued to recover under the supply contract, and the parties tried the issues to the court in a one-day trial. Three days later, the trial court issued a letter ruling announcing its decision and asked counsel for Alexander Oil to prepare a judgment based on the letter ruling. Approximately two weeks later, the trial court signed a judgment awarding Alexander Oil actual damages of $62,460.35, prejudgment interest of $3,747.62, and attorney's fees of $5,500.00. Appellant filed a postjudgment motion for new trial, but did not request postjudgment findings of fact and conclusions of law.

Standard of Review

Appellant's points of error challenge recitals in the trial court's letter ruling sent to the parties before the judgment was signed. Appellant refers to these recitals as findings of fact and conclusions of law and challenges them under the standards that govern postjudgment findings of fact and conclusions of law entered after a bench trial under rule 296 of the Rules of Civil Procedure. ⁽³⁾ A trial court's posttrial rulings are interlocutory unless incorporated into the trial court's final judgment, which did not happen here. See Gulf States Util. Co. v. Low, 79 S.W.3d 561, 565 (Tex. 2002). Therefore, the recitals in the trial court's letter ruling do not constitute postjudgment findings or conclusions subject to the same standards of review as those entered under rule 296. See Cherokee Water Co. v. Gregg County Appraisal Dist., 801 S.W.2d 872, 878 (Tex. 1990); Mondragon v. Austin, 954 S.W.2d 191, 193 (Tex. App.--Austin 1997, writ denied); see also Roberts v. Roberts, 999 S.W.2d 424, 426 (Tex. App.--El Paso 1999, no pet.) (explaining that treating prejudgment letter or memorandum as formal findings would jeopardize rights of parties to request and obtain postjudgment findings and conclusions under rule 296).

Appellant did not request postjudgment findings under rule 296, and the trial court did not file them. Therefore, 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, and the decision can be sustained on any reasonable theory consistent with the evidence and the governing law. See Fair Deal Auto Sales v. Brantley, 24 S.W.3d 543, 546 (Tex. App.--Houston [1st Dist.] 2000, no pet.). Because the record on appeal contains a full reporter's record of the trial, appellant may challenge the trial court's implied findings for legal and factual sufficiency, under the same standards that govern challenges to a jury's findings, but must show that the judgment of the court below cannot be sustained by any theory raised by the evidence. See id. In an appeal from a bench trial, we may not invade the fact-finding role of the trial court, who alone determines the credibility of the witnesses, the weight to give their testimony, and whether to accept or reject all or any part of that testimony. Id.

Binding Contract

Appellant's first point of error challenges his liability to Alexander Oil on the grounds that he never held himself out as owner of the Pik n Pak. Alexander Oil's pleadings alleged, however, that, in addition to executing a written contract for supply of motor fuel, appellant also personally guaranteed performance of that contract. Appellant's second point of error challenges his liability as guarantor.

The written contract at issue here consists of the October 21, 1997 Customer Credit Application and Payment Agreement for supplying $10,000 worth of gasoline weekly, and the additional letter appellant sent to Alexander Oil, which detailed additional terms of the parties' working relationship, including a seven-year term to provide a minimum of 4,200,000 gallons of fuel. See Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000) (applying "well-established law" that all instruments pertaining to same transaction may be construed together as compromising single agreement). Taken together, these documents established a supply-contract relationship between appellant, as guarantor, and Alexander Oil, as supplier. See id.; Cooper v. Fortney, 703 S.W.2d 217, 219 (Tex. App.--Houston [14th Dist.] 1985, writ ref'd n.r.e.) (defining "ordinary supply contract" as measuring a quantity to be sold by stating a specific amount).

Appellant contends Alexander Oil never signed, and therefore never accepted, the additional details of the parties' relationship, as set out in the additional letter. As Alexander Oil emphasized in the trial court in response to similar arguments, however, it is undisputed that Alexander Oil performed in compliance with the supply contract. Alexander complied with, and thus accepted, the supply contract and continued to supply fuel in compliance with the contract until Ghaffir stopped complying by not paying for delivered fuel. See United Concrete Pipe Corp. v. Spin-Line Co., 430 S.W.2d 360, 364 (Tex. 1968) (recognizing well-settled law that performance in compliance with offer may constitute valid acceptance of contract). It is likewise undisputed that appellant signed the documents constituting the supply contract as an unconditional guarantor who would incur liability under the contract on the default of the primary obligor, here Ghaffir. See Republic Nat'l Bank v. Northwest Nat'l Bank, 578 S.W.2d 109, 114 (Tex. 1978) (defining guaranty as creating obligation whereby guarantor promises to pay another's debt when that person does not perform); see also Tex. Bus. & Com. Code Ann. § 26.01(a), (b)(2) (Vernon 2002) (requiring that promise to answer for debt or default of another be in writing). Because it is undisputed that Ghaffir defaulted under the supply contract, the trial court impliedly found that appellant became primarily liable, as guarantor, for Ghaffir's obligations under the supply contract. See Republic Nat'l Bank, 578 S.W.2d at 114.

Appellant's liability as guarantor is raised by the pleadings and reasonably supported by the evidence, and appellant has not demonstrated that his liability as guarantor cannot be sustained. See Fair Deal Auto Sales, 24 S.W.3d at 546. Rather, appellant as much as concedes his liability as guarantor in his brief, in which he acknowledges he is liable as guarantor, at least for gasoline Alexander Oil provided to the Pik n Pak without payment, and for the costs of branding the convenience store as a Coastal station. Because the record supports appellant's liability as guarantor of Ghaffir's performance, we need not decide whether appellant was also liable as an owner.

We overrule appellant's first and second points of error.

In his third and fifth points of error, appellant repeats his contention that he never became bound by the supply contract because Alexander Oil never accepted it. Having rejected that contention in addressing appellant's first and second points of error, we overrule his third and fifth points of error. ⁽⁴⁾

Damages for Nonpayment of Fuel Delivered

In his fourth point of error, appellant challenges the trial court's calculation of $17,377.00 as the amount due Alexander Oil for unpaid fuel delivered to the convenience store. ⁽⁵⁾ Appellant contends the record supports only a $13,877.00 balance. Appellant relies on the testimony of one Alexander Oil witness and one exhibit, a ledger listing. Appellant's argument does not acknowledge testimony by Trigg concerning an additional invoice for fuel delivered, which reflects an additional $8,101.98 due for fuel delivered, and Trigg's testimony that appellant satisfied all but approximately $3,500.00 of that balance by paying $4,600.00 from the accounts of another store appellant owned. The $17,377.00 awarded by the trial court is the total of $13,877.00 plus $3,500.00. Alexander requested damages for fuel delivered in its pleadings and the evidence reasonably supports the $17,377.00 award. Appellant has not shown that the trial court's calculation cannot be sustained. See Fair Deal Auto Sales, 24 S.W.3d at 546.

We overrule appellant's fourth point of error.

Attorney's Fees

Appellant's sixth point of error challenges the trial court's award of $5,500.00 as reasonable attorney's fees. Appellant concedes his liability for reasonable attorney's fees, but contends the fees awarded are not reasonable because Alexander Oil was attempting to enforce a mere proposal as a contract, a contention we have rejected. Appellant also points out that Alexander Oil's counsel admitted he did not keep "detailed time records" and offered the $5,500.00 calculation as an "estimate." Having prevailed on its suit on a written contract and having requested attorney's fees in its pleadings, Alexander Oil was entitled to recover reasonable attorney's fees from appellant. Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (Vernon 1997). In offering his opinion that $5,500.00 was a reasonable amount of attorney's fees for the work done in this case, counsel for Alexander Oil specified he relied on the factors enumerated in Arthur Anderson v. Perry Equip. Corp., as those a fact finder should consider in determining the reasonableness of an attorney's fee award. See 945 S.W.2d 812, 818 (Tex. 1997) (adopting eight factors enumerated in Tex. Disciplinary R. Prof. Conduct 1.04, reprinted in Tex. Gov't Code Ann. tit. 2, subtit. G app. (State Bar Rules, art. X, § 9) as factors fact finder "should consider" in determining reasonableness of attorney's fee award).

None of the eight factors mandates that time records be kept or precludes an estimate. See id. The trial court's award is reasonably supported by the testimony offered by Alexander Oil's counsel, and appellant has not shown that the trial court's factual determination that $5,500.00 was reasonable cannot be sustained. See Fair Deal Auto Sales, 24 S.W.3d at 546.

We overrule appellant's sixth point of error.

Conclusion

We affirm the judgment of the trial court.

Elsa Alcala Justice

Panel consists of Justices Taft, Alcala, and Price. ⁽⁶⁾

Do not publish. Tex. R. App. P. 47.4.

1. Appellant was sued and has styled his brief as an individual doing business as Pik n Pak, but the judgment holds him personally liable only, and not as doing business as Pik n Pak. In addition, appellant filed his notice of appeal as an individual.

2. Providing "branded" motor fuel of Coastal Oil Company allowed the convenience store to accept that company's credit cards.

3.

See Tex. R. Civ. P. 296-299a; see also Butler v. Arrow Mirror & Glass, Inc., 51 S.W.3d 787, 792 (Tex. App.--Houston [1st Dist.] 2001, no pet.) (standard of review for conclusions of law entered pursuant to rule 296); Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); Min v. Avila, 991 S.W.2d 495, 500 (Tex. App.--Houston [1st Dist.] 1999, no pet.) (standard of review for findings of fact entered pursuant to rule 296).

4. In the concluding sentence of the argument section supporting his fifth point of error, appellant argues that Alexander Oil is not entitled to damages for lost profits because the contract was never accepted. By limiting his challenge to the award of lost profits to that narrow ground and not asserting a point of error or argument that otherwise challenges that recovery, appellant has waived any other challenge.

See Jacobs v. Satterwhite, 65 S.W.3d 653, 655-56 (Tex. 2001) (applying "'well-established'" rule that grounds not asserted as error and supported by argument are waived); Zapalac v. Cain, 39 S.W.3d 414, 421 (Tex. App.--Houston [1st Dist.] 2001, no pet.) (holding asserted point waived for inadequate briefing); Tex. R. App. P. 38.1(e), (h).

5. As addressed above, appellant concedes his liability for these damages, but challenges their calculation.

6. The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.