classic-century-inc-fka-classic-century-homes-inc-v-deer-creek ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-289-CV
INIMITABLE GROUP, L.P. APPELLANTS
AND SOITIS, L.L.C.
V.
WESTWOOD GROUP
DEVELOPMENT II, LTD. APPELLEE
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FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
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OPINION
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Introduction
This case involves a dispute over whether a contract for the construction
and sale of an office and warehouse building was validly terminated by the
purchaser before closing. In five issues, appellants Inimitable Group, L.P. and
Soitis, L.L.C. challenge (1) the trial court’s determination that they did not
validly terminate the contract and, consequently, (2) the trial court’s final
judgment awarding damages to appellee Westwood Group Development II, Ltd.
for breach of contract. We affirm.
Background
In February 2005, Soitis and Westwood entered into an Agreement of
Purchase and Sale (Agreement) “to provide for the construction by”
Westwood—and the subsequent sale to Soitis—of an office and warehouse
building in Grapevine, Texas. The Agreement provided for the building to be
constructed according to certain plans and specifications, which were attached
as exhibits. The initial closing date was to be October 30, 2005. The date the
building was to be substantially completed as defined in the Agreement was
October 15, 2005, “as adjusted from time to time as expressly provided” in the
Agreement. The Agreement further (1) provided that “[t]ime is of the essence,”
(2) required Westwood to construct the building with due diligence on or before
the substantial completion date, “as extended by Excusable Delays and/or
Purchaser Delays,” both defined in the Agreement,1 and (3) allowed Soitis to
terminate the agreement by written notice to Westwood if substantial
1
… “Excusable Delay” is defined as delay in substantial completion for
reasons “beyond the reasonable control of Seller,” such as delay because of
strikes, governmental regulatory orders, weather, or changes to the project
made by the purchaser. “Purchaser Delay” is defined as delay in substantial
completion “due to any act or omission” of the purchaser, including delay
because of any changes to the project made by the purchaser.
2
completion had not occurred by December 31, 2005 “as extended by Purchaser
Delays only and Excusable Delays.”
The construction plans attached to the Agreement provided only for the
construction of the exterior of the building; Soitis was responsible for its own
interior finish-out. Construction on the building began in late March 2005. In
April 2005, Soitis and Westwood agreed that Westwood would assist Soitis in
designing the interior finish-out of the building. Westwood hired an architect
to assist with the interior finish-out plans.
From April through November 2005, Tony Robertson, Soitis’s president,
and Nicole Meadors, a Westwood employee, corresponded by phone and email
regarding various aspects of the interior and exterior design and construction
of the building. Al Burtin, Westwood’s chief operating officer, also participated
in the process. Soitis requested several alterations to the original exterior
design, including the relocation of a truck ramp, the addition of a window, and
the addition of a hard coat texture to the exterior. After reviewing and making
several changes to the architect’s proposed drawings, Robertson approved the
initial interior finish-out plans on June 21, 2005. He approved the final
construction documents for the interior on September 14, 2005, which
Westwood then sent out for bids on the construction costs.
3
On November 7, 2005, the day Westwood received at least one of the
bids for the interior construction, Robertson and Meadors had a phone
conversation about the project, after which Meadors sent Robertson an email
stating, “I was curious to hear if you had found anything else out? We have
put your building on hold, but need to know ASAP exactly what direction we
are going to be heading in.” Two days later, on November 9, 2005, Robertson,
Burtin, and Meadors met regarding the project, and Robertson informed
Meadors and Burtin that Soitis did not intend to occupy the building. They
discussed options for the project, including having Soitis continue with the
purchase and lease or sell the building. In addition, Robertson asked Meadors
to investigate whether a different buyer could be found for the project.
Robertson told Meadors and Burtin that he wanted to get a new appraisal on
the building. Robertson’s notes from that meeting indicate, “Anticipate a
closing on December 1st,” and contain a notation that appears to state that the
architect’s costs were approximately $25,000. The meeting notes also appear
to contain calculations of the costs to either lease or sell the building in both
improved and unimproved condition.
Despite Robertson’s November 7, 2005 instruction to stop work on the
building, Westwood’s contractor continued construction according to its
contract with Westwood. As of December 13, 2005, the only item remaining
4
to be completed was the addition of an exterior wall light, needed to replace a
planned but not installed light pole that the architect had inadvertently located
over a gas line.
On December 14, 2005, Meadors sent Robertson an email stating,
We are still trying to sell your building[;] our prospect cannot meet
until after the first of the year . . . so I will keep you informed. As
far as closing on your building, we want to close after Christmas
but before the New Year. Can you have all of your financing in
place by this time?
Robertson responded, “Having the financing in place is not a problem.
Organizing our side for a closing in the middle of the holiday week is going to
be a problem. The way things stand now, we are all out on vacation. We can
try to figure something out this afternoon.” Meadors sent Robertson an email
on January 9, 2006 inquiring whether Soitis “had gotten anything scheduled
for [the] building” and asking him to email her “an update so we can get a
closing date set.” Robertson responded,
I forwarded the information to Chase last Thursday. My contact
assured me they would evaluate the appraiser to determine if they
could use him in our situation. I think you are correct, that this
would be the most effective way to get us the appraisal we want
in the shortest time. . . . I will be talking with Chase tomorrow at
the latest.
Burtin finally sent Robertson an email on January 27, 2006, stating that
Westwood wanted to schedule closing for February 6, 2006. Burtin went on
5
to state that the building had been substantially completed on November 30,
2005 and that the construction had run over schedule because of the changes
to the exterior plans requested by Soitis, “none of which [according to Burtin]
pertained to the seller’s actions.” Soitis did not challenge Burtin’s contention
that it was the cause of the construction delay.
On January 31, 2006, Meadors sent Robertson an email noting that he
had told her Soitis was “changing the name on the [Agreement] from Soitis to
another entity” and asking the name so that an assignment could be drafted.
Soitis formed Inimitable in February 2006 and assigned its rights under the
Agreement to Inimitable. According to Steve Staneff, Soitis’s former president
and an equity holder, Inimitable was formed for the sole purpose of purchasing
the building as an investment with the intent to lease it back to Soitis.2
Robertson and Meadors continued to correspond regarding closing, with
Meadors attempting to schedule a February 15, 2006 closing. Robertson told
her that he would “make every effort for 2:00 on the 15th, [but] the 16th
would be easier.” He also stated that he “would like to wrap this up as well.”
Meadors met with the new appraiser on February 6, 2006. However,
unbeknownst to Westwood, Robertson, had already begun looking at the
2
… Robertson testified at trial, however, that after November 9, 2005,
Soitis never intended to occupy the building.
6
Agreement to determine if Inimitable could terminate the transaction.
Accordingly, sometime during the time he was discussing closing with Meadors,
Robertson was discussing termination options with counsel. After confirming
that the City had not issued a certificate of occupancy for the building exterior
because the wall light had not been installed, appellants’ counsel sent a letter
to Westwood terminating the Agreement under section 6.3, which allowed the
buyer to terminate if the building had not been substantially completed by
December 31, 2005. In the letter, counsel also demanded that Westwood
return the $50,000 earnest money Soitis had paid into escrow when it first
entered into the Agreement.
After Westwood refused to return the earnest money, appellants sued
Westwood in March 2006, claiming that Inimitable had validly terminated the
Agreement and seeking return of the earnest money as damages for breach of
contract. They also sought a declaratory judgment that the Agreem ent is
“terminated, invalid, void, and/or unenforceable.” Westwood asserted
counterclaims for breach of contract, negligence, and quantum meruit. In its
Third Amended Original Answer, Westwood also included specific denials,
claiming, among other things, that all conditions precedent to appellants’ right
to relief had not occurred: specifically, that appellants prevented Westwood
from performing the Agreement by instructing it to stop construction on the
7
building. Westwood also pled the affirmative defenses of appellants’ breach
and failure to perform, anticipatory repudiation, waiver, promissory and
equitable estoppel, laches and unclean hands, and impossibility or impracticality
of performance.
After a bench trial on January 16, 2007, the trial court ruled in favor of
Westwood, awarding it damages of $157,946 plus prejudgment interest of
$13,209.05—a total of $171,155.05—for breach of contract. It also awarded
Westwood $65,000 in trial attorney’s fees and conditional attorney’s fees on
appeal for $20,000 each to an appeal to the court of appeals and a fully briefed
appeal in the supreme court. It also split costs between Inimitable and Soitis.
The trial court signed findings of fact and conclusions of law on October 18,
2007.
Issues on Appeal
Appellants bring five issues on appeal, in which they challenge the
following findings and conclusions of the trial court: (1) that Soitis and
Westwood entered into a second, oral agreement for Westwood to coordinate
the interior design of the building, (2) that Soitis either anticipatorily repudiated
or breached the second, oral agreement, or both, by failing to execute change
orders incorporating the interior design work into the Agreement, (3) that
Westwood was excused from performance under the Agreement after Soitis’s
8
anticipatory repudiation, breach, or both of the second, oral agreement, (4) that
Soitis should be estopped from claiming Westwood breached the Agreement,
and (5) that Soitis waived any failure by Westwood to comply with the
Agreement.
Standard of Review
Findings of fact entered in a case tried to the court have the same force
and dignity as a jury’s answers to jury questions. Anderson v. City of Seven
Points, 806 S.W.2d 791, 794 (Tex. 1991). The trial court’s findings of fact are
reviewable for legal and factual sufficiency of the evidence to support them by
the same standards that are applied in reviewing evidence supporting a jury’s
answer. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel,
881 S.W.2d 295, 297 (Tex. 1994). A court of appeals cannot make original
findings of fact; it can only “unfind” facts. Tex. Nat’l Bank v. Karnes, 717
S.W.2d 901, 903 (Tex. 1986); Zeptner v. Zeptner, 111 S.W.3d 727, 734 (Tex.
App.—Fort Worth 2003, no pet.) (op. on reh’g).
Conclusions of law may not be challenged for factual sufficiency, but
they may be reviewed to determine their correctness based upon the facts.
Citizens Nat’l Bank v. City of Rhome, 201 S.W.3d 254, 256 (Tex. App.—Fort
Worth 2006, no pet.); Dominey v. Unknown Heirs and Legal Representatives
of Lokomski, 172 S.W.3d 67, 71 (Tex. App.—Fort Worth 2005, no pet.).
9
Existence of Oral Agreement for Interior Finish-out
In their first issue, appellants contend that the trial court incorrectly
concluded that Soitis and Westwood entered into a valid, binding second
agreement for the interior finish-out of the building because there is no evidence
that the terms of such an agreement were sufficiently definite so as to be
enforceable. In their second issue, appellants contend that because there is no
evidence of an enforceable second agreement, they cannot have anticipatorily
repudiated it.
Whether an agreement is legally enforceable or binding is a question of
law. Searcy v. DDA, Inc., 201 S.W.3d 319, 322 (Tex. App.—Dallas 2006, no
pet.); Oakrock Exploration Co. v. Killam, 87 S.W.3d 685, 690 (Tex. App.—San
Antonio 2002, pet. denied). To be enforceable, a contract must be sufficiently
definite in its material terms so as to enable the court to ascertain the parties’
intentions. Fort Worth ISD v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex.
2000); T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.
1992). What terms are “material” to a contract should be determined on an
agreement-by-agreement basis. T.O. Stanley Boot Co., 847 S.W.2d at 221
(“Each contract should be considered separately to determine its material
terms.”). When an essential term is left open for future negotiation, there is no
binding contract. Id.
10
The terms of an oral agreement may be established by direct or
circumstantial evidence. Harris v. Balderas, 27 S.W.3d 71, 77 (Tex. App.—San
Antonio 2000, pet. denied). In determining whether an oral contract exists, we
“look to the communications between the parties and to the acts and
circumstances surrounding those communications.” Id.
Appellants contend that they cannot have entered into an enforceable
agreement for the interior finish-out because there was no agreed upon fee for
Westwood’s services—and thus no way to determine the final cost of the
agreement—a0nd no agreed upon due date for the finished product.
When a contract does not set forth a definite price but all other elements
of a contract have been met, the trial court may imply a reasonable price. KW
Constr. v. Stephens & Sons Concrete Contractors, Inc., 165 S.W.3d 874,
883–84 (Tex. App.—Texarkana 2005, pet. denied); Buxani v. Nussbaum, 940
S.W.2d 350, 353 (Tex. App.—San Antonio 1997, no writ). Thus, when the
parties have done everything else necessary to make a binding agreement for
services, their failure to specify a price does not leave the contract so
incomplete that it cannot be enforced. KW Constr., 165 S.W.3d at 884;
Burnside Air Conditioning & Heating, Inc. v. T.S. Young Corp., 113 S.W.3d
889, 894–95 (Tex. App.—Dallas 2003, no pet.); Pennington v. Jerry F.
11
Gurkoff, D.O., P.A., 899 S.W.2d 767, 770 (Tex. App.—Fort Worth 1995, writ
denied).
Additionally, the absence of a duration term for a contract “does not
necessarily suggest that the parties did not enter into an enforceable
agreement.” Cytogenix, Inc. v. Waldroff, 213 S.W.3d 479, 486 (Tex.
App.—Houston [1st Dist.] 2006, pet. denied); Avila v. Gonzalez, 974 S.W.2d
237, 244 (Tex. App.—San Antonio 1998, pet. denied) (noting that, “[w]hen the
duration of a contract is not expressly dictated by the agreement, courts will
frequently presume that the parties intended the agreement to last for a
reasonable time”). If no time for performance is stated in the contract, the law
may imply a reasonable one if the contract is “sufficiently definite for a court
to be able to fix the time when it can be enforced.” Moore v. Dilworth, 142
Tex. 538, 179 S.W.2d 940, 942 (1944); Cytogenix, 213 S.W.3d at 486; Avila,
974 S.W.2d at 245 (noting that reasonable duration may be implied “in cases
where the agreement contemplates that one party will make substantial
expenditures or other investments in accordance with performance”).
Here, Robertson testified that Soitis and Westwood had an oral
agreement for Westwood to engage the architect to provide interior design
services for the project. Robertson signed off on initial drawings and on final
construction documents prepared by the architect for that purpose. He was
12
actively engaged in the design process, making comments to the drawings and
suggesting revisions based on Soitis’s specific needs. When Westwood’s
counsel asked him at trial whether he had agreed to pay Westwood for its
expenses in engaging the architect, Robertson said, “Yes.”
Burtin testified about the process by which Westwood and Soitis entered
into their oral agreement regarding the interior finish-out of the building. He
explained as follows:
Here’s how the process works: We . . . talked about okay,
yes, our willingness to fill that role. And then what we typically do
with every person, with every client, is we go through the process
of design.
Then after design is signed off on, then we go through the
process of obtaining construction documents. And then after the
construction documents are acquired, then they have to be bid out.
And then we go through the selection of the bidding process to get
the best contractor. And then that is awarded to that best
contractor, and then we know a price at that point in time.
He explained that it is impossible to determine a final price for the interior finish-
out until the entire process is complete. However, he did testify regarding
expenses that
we would go through this process and get to a point where we
have a number. And then at that point in time, we will add a
margin on top of the best bid number. And then that is the number
that we will use to add to the different expanded scope of work
which was requested of us.
13
Thus, Burtin’s testimony corroborates Robertson’s that Soitis agreed to at least
reimburse Westwood for its expenses related to providing the interior design
services. Accordingly, we do not believe that the agreement was indefinite for
failure to provide a final, agreed upon price for those services. See Buxani, 940
S.W.2d at 353.
Moreover, we do not believe that the agreement is unenforceable for lack
of a specific term for completion of the services. Burtin testified that
Westwood representatives explained the interior design and construction
process to Soitis, and the parties were actively engaged in the design process
throughout the summer while the exterior shell construction was ongoing. The
trial court found that Soitis initially intended to occupy the building and that it
could save time and money by working on the interior finish-out during
construction of the exterior as opposed to waiting until the exterior was
completed before beginning the interior finish-out; appellants do not challenge
that finding. Thus, the trial court impliedly found that Soitis intended for the
interior finish-out to be completed within a reasonable time after construction
of, and closing on, the exterior part of the building, so as to provide Soitis with
the maximum savings of time and money.
Based on the foregoing, we conclude and hold that the trial court did not
err by determining that Soitis and Westwood entered into an enforceable oral
14
agreement for the interior finish-out of the building. We overrule appellants’
first issue. Because appellants’ second issue—whether the trial court erred by
determining that appellants anticipatorily repudiated the interior finish-out
agreement—is contingent upon their argument that the oral agreement was
unenforceable, we overrule their second issue as well.
Whether Westwood Excused from Performing Under
Agreement of Purchase and Sale
In their third issue, appellants contend that the trial court erred by
concluding that Westwood was excused from performing under the Agreement
after appellants either anticipatorily repudiated or breached the second
agreement for interior design services, or both.
If, after a party breaches a contract, the other party continues to insist
on performance by the defaulting party, the nondefaulting party is not excused
from performing its part of the contract as a result of the defaulting party’s
breach; the contract continues in force for the benefit of both parties. Kennedy
Ship & Repair L.P. v. Pham, 210 S.W.3d 11, 25 (Tex. App.—Houston [14th
Dist.] 2006, no pet.); Houston Belt & Terminal Ry. v. J. Weingarten, Inc., 421
S.W.2d 431, 435 (Tex. Civ. App.—Houston [1st Dist.] 1967, writ ref’d n.r.e.).
Thus, when one party materially breaches a contract, the nondefaulting party
is forced to elect between two courses of action, i.e., continuing performance
15
or ceasing performance. Pham, 210 S.W.3d at 25; Chilton Ins. Co. v. Pate &
Pate Enters., Inc., 930 S.W.2d 877, 887–88 (Tex. App.—San Antonio 1996,
writ denied). Treating the contract as continuing after a breach deprives the
nondefaulting party of any excuse for terminating its own performance. Pham,
210 S.W.3d at 25; Chilton Ins., 930 S.W.2d at 888.
According to appellants, Westwood failed to elect which remedy it
wished to pursue against appellants: either (1) insist on performance and
remain bound by all terms of the Agreement or (2) treat appellants’ actions as
a breach and eschew any performance by appellants; in other words, appellants
contend that by continuing to seek closing on the exterior, Westwood
consciously decided to forego the benefit of being able to claim a prior breach
of the Agreement by appellants. Appellants’ did not raise this argument at trial
or in their pleadings, nor did they try it by consent.3 Mastin v. Mastin, 70
S.W.3d 148, 154 (Tex. App.—San Antonio 2001, no pet.) (“Trial by consent
is intended to cover the exceptional case where it clearly appears from the
record as a whole that the parties tried the unplead issue.”). Because
3
… Although appellants’ counsel did ask several questions related to
Westwood’s continuing construction of the shell after Robertson instructed
them to put the building on hold, those questions were clearly related to an
attempt to prove that Westwood, rather than appellants, was responsible for
the delays in substantial completion of the exterior.
16
appellants’ argument is in the nature of an avoidance to Westwood’s
affirmative defense of excuse, it too is an affirmative defense that appellants
were required to plead. T EX. R. C IV. P. 94; Compass Bank v. MFP Fin. Servs,
Inc., 152 S.W.3d 844, 852 (Tex. App.—Dallas 2005, pet. denied). Because
they did not do so, they are not entitled to rely on Westwood’s alleged failure
to elect its remedies to support reversal of the judgment on appeal. Compass
Bank, 152 S.W.3d at 852, 857.
Moreover, appellants did not challenge paragraph 34 of the trial court’s
findings of fact and conclusions of law, which states, “Substantial completion
of the building was timely, and all conditions precedent were met by
Westwood.” Thus, appellants failed to challenge an alternative finding of the
trial court that supports its judgment: that Westwood did not fail to perform
its obligations under the Agreement. 4 We overrule appellants’ third issue.
4
… When findings of fact are filed and are unchallenged, they occupy the
same position and are entitled to the same weight as the verdict of a jury; they
are binding on an appellate court unless the contrary is established as a matter
of law or there is no evidence to support the finding. McGalliard v. Kuhlmann,
722 S.W.2d 694, 696 (Tex. 1986); Raman Chandler Props., L.C. v. Caldwell’s
Creek Homeowners Ass’n, Inc., 178 S.W.3d 384, 390 (Tex. App.—Fort Worth
2005, pet. denied).
17
Whether Appellants Estopped from Claiming Westwood Breached Agreement
In their fourth issue, appellants contend that the trial court erred by
concluding that appellants are estopped from claiming Westwood breached the
Agreement first. Initially, they contend that equitable principles, such as
estoppel, are not applicable in breach of contract cases. Such a contention is
incorrect, however, because estoppel is routinely applied by courts in contract
cases. See, e.g., Cal-Tex. Lumber Co. v. Owens Handle Co., 989 S.W.2d 802,
821 (Tex. App.—Tyler 1999, no pet.); Wright Way Constr. Co. v. Harlingen
Mall Co., 799 S.W.2d 415, 422 (Tex. App.—Corpus Christi 1990, writ denied).
Next, appellants contend that there is no evidence to support an estoppel
finding because the evidence does not support a finding that appellants
intentionally misled Westwood, nor a finding that Westwood relied on any such
misrepresentation or concealment to its detriment.
Estoppel is defined in general as conduct which causes the other party to
materially alter his position in reliance on that conduct. Roberts v. Clark, 188
S.W.3d 204, 213 (Tex. App.—Tyler 2002, pet. denied); Braugh v. Phillips, 557
S.W.2d 155, 158 (Tex. Civ. App.—Corpus Christi 1977, writ ref’d n.r.e.). To
invoke the doctrine of estoppel, all the necessary elements of estoppel must be
present. Roberts, 188 S.W.3d at 213; Douglas v. Aztec Petroleum Corp., 695
S.W.2d 312, 317 (Tex. App.—Tyler 1985, no writ). The elements of equitable
18
estoppel are (1) a false representation or concealment of material facts, (2)
made with knowledge, actual or constructive, of those facts, (3) with the
intention that it should be acted on, (4) to a party without knowledge or means
of obtaining knowledge of the facts, (5) who detrimentally relies on the
representations. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962
S.W.2d 507, 515–16 (Tex. 1998); Argyle ISD ex rel. Bd. of Trustees v. Wolf,
234 S.W.3d 229, 241 (Tex. App.—Fort Worth 2007, no pet.).
One of the essential requisites of estoppel is a reasonable or justified
reliance on the conduct or statements of the person sought to be estopped by
the person seeking the benefit of the doctrine. Roberts, 188 S.W.3d at 213;
Douglas, 695 S.W.2d at 317. The purpose of estoppel is for the protection of
those who have been misled by that which upon its face was fair. Roberts,
188 S.W.3d at 213; Douglas, 695 S.W.2d at 317. A person may not assert
estoppel for the purpose of shielding himself from the results of his own
dereliction of duty. Roberts, 188 S.W.3d at 213; Douglas, 695 S.W.2d at 317.
Misrepresentation or Concealment
Appellants challenge the trial court’s findings that Soitis changed its
business plan in the summer of 2005 and concealed this fact from Westwood
as well as its intentions with regard to the building. It also challenges the trial
court’s finding that Soitis never intended to agree on the outstanding issues and
19
misled Westwood into believing that it was going to close to obtain the benefit
of additional contract defenses. According to appellants, the evidence
conclusively shows that Robertson candidly informed Westwood that Soitis no
longer intended to occupy the building and that appellants fully intended to
close on the building up until Robertson received the email from Burtin regarding
Purchaser Delays.
During closing arguments, the trial court stated the following:
What concerns me about this is I’ve never been able to figure
out based on the evidence I’ve heard, when your client [appellants]
said they had the money, what justification they had that they kept
stringing out the closing.
....
. . . And then we have a series of reassuring e-mails and
meetings accommodating the purchaser as the purchaser continues
to lead on the builder that they’re going to close until, oddly
enough, they get just past the number of days [Westwood] pointed
out that might be arguably in the delay.
....
. . . I pretty much have reached [the] conclusion that there’s
some credibility issues on both sides - - and I’m worming my way
through that.
....
Pretty - - pretty limited testimony whenever a client says he
didn’t look at it [referring to Robertson’s testimony that he did not
know there was a possibility of terminating the Agreement until
after Burtin sent the email alleging Purchaser Delays]. He didn’t
20
testify that he didn’t have lawyers reviewing it. I don’t think the
Indianapolis law firm came up with an overnight opinion on the
contract this size without consulting with its clients. It . . . does
beg me to ignore reality.
So in the engagement of the Indiana lawyers, it’s something
the Court may inquire into, but I’m not . . . gonna buy into the fact
that the Indiana lawyers were faxed the contract the night before
they authored the termination advice and told the client to do it.
It is clear from the trial court’s comments that the judge did not necessarily
believe Robertson’s testimony regarding appellants’ intentions to close the
Agreement.
The trial court was entitled to disbelieve Robertson’s and Staneff’s
testimony that Soitis intended to close on the building until just before the
scheduled closing date; the trial court’s comments show that it instead
construed Soitis’s failure to respond to Westwood’s closing inquiries with any
firm details as an intent not to close if at all possible. As the finder of fact, the
trial court was entitled to believe or disbelieve all or part of any witness’s
testimony. See Shear Cuts, Inc. v. Littlejohn, 141 S.W.3d 264, 270–71 (Tex.
App.—Fort Worth 2004, no pet.). Accordingly, there is sufficient evidence to
support the trial court’s finding of misrepresentation, concealment, or both on
the part of Soitis as to its intentions regarding closing.
Reliance
21
Appellants also contend that Westwood cannot have relied on any
misrepresentation or concealment because the evidence shows that Westwood
nevertheless continued construction of the building even after Robertson’s
November 7, 2005 instructions to stop work on the building. However, Burtin
testified that because of Robertson’s instruction, Westwood did not press to
obtain a certificate of occupancy for the exterior shell. According to Burtin, had
Robertson not given that instruction, Westwood would have pressed the
construction contractor to complete installation of the last item needed—the
wall mounted light—so that a certificate could be issued. And if Westwood had
been able to obtain that certificate, appellants would not have been able to
terminate for the reason they relied on at trial—that construction of the exterior
was not substantially complete as defined in the Agreement because a
certificate of occupancy had not been issued for the shell. We conclude that
this is sufficient evidence to support the trial court’s findings and conclusions
on estoppel.
We overrule appellants’ fourth issue.
Whether Trial Court Correctly Concluded That Appellants Waived Right to
Terminate Because of Westwood’s Failure to Substantially Complete
In their fifth and final issue, appellants contend that the trial court erred
by concluding that Soitis waived any failure by Westwood to comply with all
22
of its obligations under the Agreement. According to appellants, because
waiver requires a knowing and intentional relinquishment of a right—and
Robertson did not know the extent of appellants’ rights under the Agreement
until he reviewed it after receiving Burtin’s January 21 email—appellants cannot
have waived those enforcement rights.
However, we have already pointed out the trial court’s skepticism
regarding Robertson’s knowledge of the extent of the contents of the
Agreement. Moreover, a party to a contract is presumed to have read and
understood its contents. UBS Fin. Servs., Inc. v. Branton, 241 S.W.3d 179,
189 (Tex. App.—Fort Worth 2007, no pet.); see Mikey’s Houses LLC v. Bank
of Am., N.A., 232 S.W.3d 145, 167 (Tex. App.—Fort Worth 2007, no pet.
[mand. pending]) (Livingston, J., dissenting). Accordingly, we conclude and
hold that the trial court did not err by concluding that appellants waived any
failure of Westwood to comply with the Agreement. We overrule appellants’
fifth and final issue.
Conclusion
Having overruled appellants’ five issues, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
JUSTICE
PANEL: CAYCE, C.J.; LIVINGSTON and HOLMAN, JJ.
DELIVERED: August 14, 2008
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