COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00157-CV
LESIKAR OIL AND GAS CO. APPELLANT
V.
LEGEND SWABBING, LLC APPELLEE
------------
FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
------------
MEMORANDUM OPINION1
----------
Appellant Lesikar Oil and Gas Co. (the Company) appeals from the trial
court’s judgment in favor of Appellee Legend Swabbing, LLC (Legend) on
Legend’s suit for breach of contract and against the Company on its
counterclaims. In three issues, the Company argues that the trial court erred by
holding that Legend had no liability for the services of subcontractors used to
perform work that Legend was contractually obligated to perform; by holding that
1
See Tex. R. App. P. 47.4.
Legend fully performed under the contract; by refusing to hold that Legend failed
to perform in a good and workmanlike manner; by failing to find that the
Company had incurred $26,475.64 in expenses as a result of Legend’s failure to
perform in a good and workmanlike manner; and alternatively, by issuing findings
of fact numbers 17 and 22. The Company also challenges the sufficiency of the
evidence to support those findings. Because we hold that the trial court did not
err, we affirm the trial court’s judgment.
I. Background Facts and Procedural History
The Company, which is owned by Lynwood Lesikar, operates the Dalworth
No. 1 well in Parker County (the well). In May 2007, the Company hired Legend
to repair a casing leak in the well after an independent contractor, Dale Lee,
informed Lesikar that he suspected that the well had a leak. Lee introduced
Lesikar to Gary Gardner, owner of Legend. The parties entered into a master
service contract, which sets out insurance and indemnity requirements for the
parties but does not specify the work Legend agreed to perform. Lesikar agreed
to pay Legend $265 an hour for its work.
Prior to the repair work, Lesikar met with Gardner and gave him various
notes about the condition of the well and possible location of the leak. Lesikar
testified that as part of this conversation, he had informed Gardner that the well
had previously had two or three squeeze jobs done, some of which had failed.
Gardner testified that it was obvious that the casing had been squeezed several
times. A squeeze job is a process by which cement is pumped into the pipe and
2
pushed through holes in the casing. This process, in addition to repairing casing
holes, creates a cement barrier between the casing and the area outside the
casing. Before injecting the cement into the casing, a removable bridge plug is
placed in the pipe below the area to be repaired. Sand is placed on top of the
bridge plug to protect it from the cement. After the cement is injected, water is
pumped into the well to push down the cement. The well is then ―squeezed‖ to
push on the cement, pushing the water out of the cement and dehydrating it.
Once the cement has set, the cement in the casing is drilled out. The mud
created by this process is circulated out of the casing so that the plug can be
retrieved. A cement retainer may be used in the process; a cement retainer is ―a
device that . . . you pump through to get cement through it‖ to create an area
between the plug and the retainer into which the cement is pumped.
Legend repaired the leak by performing three squeeze jobs on the well.
The first two squeeze jobs that Legend completed did not fix the casing leak. At
trial, the parties disagreed about who was at fault for the failure of the first two
attempts. Legend argued that for the first attempt, the cement company, Basic
Energy Services (Basic), did not keep pressure on the well. Lesikar argued that
the problem was the location of the retainer. A Basic employee testified that
keeping pressure on the squeeze job would have defeated the squeeze because
of the location of the retainer. As for the second attempt, Gardner testified that
the squeeze failed because Basic made incorrect cement calculations, resulting
3
in too little cement being used. A Basic employee testified that Gardner told him
how much cement to use on the job.
Basic employee Billy Raines testified that squeeze jobs could take multiple
attempts to achieve success without anyone doing anything wrong. Lee testified
that Gardner did not do anything wrong on the squeeze jobs. Jack Bradshaw, an
expert called by the Company, agreed that everyone can do everything right on
the first squeeze but it can still fail, and Bradshaw could not name anything that
Gardner had done wrong.
The third squeeze job repaired the casing leak. Within a week, however,
the pump became clogged and stopped working. At trial, the parties disputed
whether the clog occurred because Legend did not circulate the well with water
after completing the third squeeze job. The parties presented conflicting
testimony about whether circulation with water is necessary.
Legend billed the Company for its services, and Lesikar refused to pay.
Lesikar disputed the charges on the grounds that Legend had charged the
Company for work that did not need to be done (such as swabbing and acidizing)
and that some of the charges were for repairing holes caused by Legend rather
than the casing leak that it had been hired to repair.
Legend sued the Company for breach of contract due to Lesikar’s failure to
pay the invoices. The Company filed a countersuit for breach of contract and
fraud. The Company alleged that Legend’s representations in the service
agreement that it had adequate equipment and fully trained personnel capable of
4
performing services were false and a deceptive trade practice. The Company
also alleged that Legend’s work was substandard.
The case was tried to the bench. At trial, Gardner testified that he had
followed Lesikar’s orders in repairing the leak and that Legend did not have
responsibility for the work performed by the service providers (such as Basic)
who had provided work or equipment on the job. Gardner also testified that his
understanding was that Lee was his supervisor on the job.
The Company disputed that Lee had any supervisory capacity on the job.
The Company argued that Legend was responsible for the work done on the
repair job and could not delegate its responsibility to other providers.
At the conclusion of the bench trial, the trial court rendered judgment for
Legend and ordered that it recover damages of $58,565 and stipulated attorney’s
fees. The judgment ordered that the Company take nothing on its counterclaims.
The Company requested the trial court to enter findings of fact and
conclusions of law. The trial court subsequently notified the parties to submit
proposed findings and conclusions by April 12, 2010. Legend complied with this
instruction, but Lesikar did not. On April 16, 2010, the trial court entered findings
of fact and conclusions of law:
Findings of Fact
....
2. [The Company] is the operator of the . . . Well.
3. [Legend] was contracted by [the Company] to repair a casing
leak(s) in the . . . Well.
5
....
5. [Legend] performed three squeeze jobs and one acid job on
the . . . well to fix the casing leak(s).
6. [Basic] was contracted to perform the cement work on the
squeeze jobs as well as the acid job on the . . . well.
7. [Legend] maintained the failure of the first squeeze job was
the fault of [Basic] for not keeping pressure on the squeeze
job.
8. . . . Dale Lee[] also maintained the failure of the first squeeze
job was the fault of [Basic] for not keeping pressure on the
squeeze job.
9. [Legend] maintained the failure of the second squeeze job
was the fault of [Basic] for the substandard quality of its
cement.
10. . . . Dale Lee[] also maintained the failure of the second
squeeze job was the fault of [Basic] for the substandard
quality of its cement.
11. [Basic] billed [the Company] the following invoices:
a. $5,285.41 — 1st squeeze job on 6/1/07
b. $3,414.12 — 2nd squeeze job on 6/5/07
c. $1,654.86 — Acid job on 6/11/07
d. $4,165.66 — 3rd squeeze job on 6/12/07
12. [The Company] did not pay [Basic] for the acid job . . . or the
3rd squeeze job. . . .
13. [Basic’s] ledger sheet for [the Company] shows a credit for the
acid job . . . and the 3rd squeeze job. . . .
14. [Legend] completed work on June 21, 2007.
15. [Legend] billed [the Company] for its work through two
invoices, No. 903 in the amount of $28,355.00 and No. 904 in
the amount of $30,210.00 for a job total of $58,565.00.
6
16. [Legend’s] hourly rate was $265.00 and L.W. Lesikar agreed
that was a reasonable rate.
17. [The Company] through its owner L.W. Lesikar and a pumper,
Dale Lee, employed by [the Company,] were overseeing work
performed by [Legend].
18. [Legend], through its manager Gary Gardner, was in constant
contact with L.W. Lesikar and/or Dale Lee through completion
of said work either in person or by telephone.
19. [Legend], through its manager Gary Gardner, provided
evidence of 77 telephone calls to or from L.W. Lesikar and 96
telephone calls to or from Dale Lee through completion of the
work on the . . . well.
20. All witnesses, including two employees from [Basic], who were
called to tes[tify] on behalf of [the Company] as well [as] its
expert Jack Bradshaw stated that it can take numerous
squeeze jobs to fix a casing leak.
21. All witnesses, including two employees from [Basic], who were
called to tes[tify] on behalf of [the Company] as well [as] its
expert Jack Bradshaw stated that everyone can do everything
right on a squeeze job and it still not be successful even after
several attempts.
22. L.W. Lesikar or his pumper, Dale Lee, were at the job site and
had the ultimate responsibility to order [Legend] or any other
subcontractor to alter the plan of operation that was proposed
for repair of the casing leak.
23. The ―contract‖ for services gives no particular guidance for the
services rendered other than representations that [Legend]
―has adequate equipment in good working order and fully
trained personnel capable of efficiently operating such
equipment and performing services for Contractor[.‖]
24. During the entire period of time [Legend] made repairs to
the . . . well, it had adequate equipment which was in good
working order.
25. During the entire period of time[, Legend] had fully trained
personnel capable of efficiently operating such equipment and
7
performing the services for which it contracted with [the
Company].
26. The job assignment was to repair the casing leak and
[Legend] completed the assignment.
27. [The Company]’s complaint was that [Legend] took too long
and did not use the methods [L.W. Lesikar] would have used.
28. The contract did not have specifications for time and method.
29. [Legend] incurred reasonable and necessary attorney’s fees of
$21,000.00.
Findings of Fact as Conclusions of Law
1. Any finding of fact that is a conclusion of law shall be deemed
a conclusion of law.
Conclusions of Law
1. [Legend] and [the Company] entered into a master service
contract. The contract for services gives no particular
guidance for the services rendered other than representations
that [Legend] has adequate equipment in good working order
and fully trained personnel capable of efficiently operating
such equipment and performing services for contractor. The
job assignment was to repair the casing leak and [Legend]
completed the assignment.
2. [Legend] fully performed its contractual obligations to [the
Company] under the contract.
3. [The Company] breached its obligations under the contract by
its failure to pay for [Legend]’s services upon completion of the
job.
4. A breach of contract entitles the non-breaching party [Legend]
to recover from the breaching party [the Company] an
additional amount of monies as compensation for the expense
of retaining an attorney in the litigation. The reasonable and
necessary attorney’s fees by [Legend] were $21,000.00.
8
The Company requested amended and additional findings of fact, which the trial
court denied, stating as its reason that Lesikar had failed to comply with the April
12 deadline.
II. Standards of Review
Findings of fact are the exclusive province of the factfinder.2 In a bench
trial, they have the same force and dignity as a jury=s answers to jury questions.3
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.4
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.5
We may sustain a legal sufficiency challenge only when (1) the record
discloses a complete absence of evidence of a vital fact; (2) the court is barred
2
Bellefonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 744–45 (Tex.
1986).
3
Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991).
4
McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); Rischon Dev.
Corp. v. City of Keller, 242 S.W.3d 161, 166 (Tex. App.—Fort Worth 2007, pet.
denied), cert. denied, 129 S. Ct. 501 (2008).
5
Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel, 881
S.W.2d 295, 297 (Tex. 1994).
9
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 establishes conclusively the opposite of a vital
fact.6 In determining whether there is legally sufficient evidence to support the
finding under review, we must consider evidence favorable to the finding if a
reasonable factfinder could and disregard evidence contrary to the finding unless
a reasonable factfinder could not.7 If a party is attacking the legal sufficiency of
an adverse finding on an issue on which the party had the burden of proof, and
there is no evidence to support the finding, we review all the evidence to
determine whether the contrary proposition is established as a matter of law.8
When reviewing an assertion that the evidence is factually insufficient to
support a finding, we set aside the finding only if, after considering and weighing
all of the evidence in the record pertinent to that finding, we determine that the
credible evidence supporting the finding is so weak, or so contrary to the
overwhelming weight of all the evidence, that the answer should be set aside and
6
Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),
cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence" and
"Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960).
7
Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007);
City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).
8
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); Sterner v.
Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).
10
a new trial ordered.9 When the party with the burden of proof appeals from a
failure to find, the party must show that the failure to find is against the great
weight and preponderance of the credible evidence.10
When conducting a factual sufficiency review, a court of appeals must not
merely substitute its judgment for that of the trier of fact. 11 The trier of fact is the
sole judge of the credibility of witnesses and the weight to be given to their
testimony.12
A court of appeals cannot make original findings of fact; it can only ―unfind‖
facts.13 Conclusions of law may not be challenged for factual sufficiency, but
they may be reviewed to determine their correctness based upon the facts.14
9
Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh’g);
Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
10
Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex. 1988); see
Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680, 681–82 (Tex. 2006).
11
Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.
2003).
12
Id.
13
Tex. Nat=l Bank v. Karnes, 717 S.W.2d 901, 903 (Tex. 1986); Inimitable
Group, L.P. v. Westwood Group Dev. II, Ltd., 264 S.W.3d 892, 898 (Tex. App.—
Fort Worth 2008, no pet.).
14
AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506, 519 (Tex.
App.—Fort Worth 2009, no pet.) (op. on reh=g); Dominey v. Unknown Heirs &
Legal Reps. of Lokomski, 172 S.W.3d 67, 71 (Tex. App.—Fort Worth 2005, no
pet.).
11
III. Legend’s Alleged Liability for the Services of Subcontractors
In its first issue, the Company argues that the trial court erred by holding
that Legend had no liability for the services of subcontractors used to perform
work that Legend was contractually obligated to provide to the Company
because, as a matter of law, Legend could not delegate responsibility for the
repair of the casing leak when the Company did not consent. Alternatively, the
Company contends that the trial court’s finding that Legend was not liable for
Basic’s services is against the great weight and preponderance of the evidence.
We first note that the trial court made no such explicit conclusions of law or
findings of fact. Secondly, even if Legend bore responsibility for the conduct of
the other subcontractors, a determination we do not need to make, for Legend to
have liability for Basic’s performance (or the services of any other subcontractor),
the trial court first must have determined that a subcontractor’s performance
amounted to a material breach of the contract. As the Company concedes in a
footnote, the trial court made no such determination, finding only that Legend and
Lee both blamed Basic for the failure of the two cement jobs, not that Basic was
at fault for the failure. The trial court also found that the Company’s witnesses
―stated that it can take numerous squeeze jobs to fix a casing leak‖ and that
―everyone can do everything right on a squeeze job and it still not be successful
even after several attempts.‖ As set forth above, the trial court further found,
23. The ―contract‖ for services gives no particular guidance for the
services rendered other than representations that [Legend]
―has adequate equipment in good working order and fully
12
trained personnel capable of efficiently operating such
equipment and performing services for Contractor[.‖]
24. During the entire period of time [Legend] made repairs to
the . . . well, it had adequate equipment which was in good
working order.
25. During the entire period of time[, Legend] had fully trained
personnel capable of efficiently operating such equipment and
performing the services for which it contracted with [the
Company].
27. [The Company]’s complaint was that [Legend] took too long
and did not use the methods [L.W. Lesikar] would have used.
28. The contract did not have specifications for time and method.
The Company has not challenged any of these findings, and there is
evidence to support them.15 The contract provides no specifications regarding
the type of work Legend was to perform. It does provide the following,
―Subcontractor [Legend] represents that it has adequate equipment in good
working order and fully trained personnel capable of efficiently operating such
equipment and performing services for Contractor [the Company].‖ Gardner
warned Lesikar before beginning the job that because of the well’s history and
age, ―this was a high risk squeeze . . . that . . . very possibly could take two to
three times to squeeze it off.‖ Lee testified that Gardner did not do anything
wrong on the squeeze jobs. Bradshaw agreed with a Basic employee’s
testimony that everyone can do everything right on the first squeeze but it can
15
See McGalliard, 722 S.W.2d at 696; Rischon Dev. Corp., 242 S.W.3d at
166.
13
still fail and could not name anything that Gardner had done wrong. Basic
employee Billy Raines testified,
Q. And down in that hole, there’s no—a person wouldn’t want to
bet, would he, that the first time you do a squeeze job, it’s
going to work?
A. No. A person wouldn’t want to bet.
Q. Based on your experience, have you been on other jobs
where sometimes it’s taken two, three, maybe as many as half
a dozen times to prepare—or to repair a hole in the casing?
A. Yes.
Q. All right. So it’s not unusual, is it, for it to take three times to
repair a hole in a casing?
A. Correct.
Q. And that doesn’t necessarily mean that anybody did anything
wrong, correct?
A. Correct.
Q. It could just be the dynamics of the hole and the geology that’s
down there; is that right?
A. Yes, sir.
Because the Company does not challenge the findings and the evidence
supports them, they are binding on us.16 We therefore hold that (1) the Company
did not establish that Basic’s performance amounted to a breach for which
Legend was liable as a matter of law and (2) the trial court’s refusal to hold
Legend liable for a breach by Basic that the trial court did not find occurred is not
16
See McGalliard, 722 S.W.2d at 696; Rischon Dev. Corp., 242 S.W.3d at
166.
14
against the great weight and preponderance of the evidence. We overrule the
Company’s first issue.
IV. Legend’s Performance of the Contract
In its second issue, the Company contends that the trial court erred by
holding that Legend fully performed its contractual obligations, by refusing to find
that Legend failed to perform in a good and workmanlike manner, by refusing to
find that Legend failed to perform in a good and workmanlike manner by failing to
circulate the well clean at the conclusion of the third squeeze job, and by refusing
to find that the Company incurred $26,475.64 in expenses as a result of
Legend’s failure to so circulate the well. Included in this issue are challenges to
the legal and factual sufficiency of the evidence to support the trial court’s finding
that Legend ―completed the assignment‖ and the trial court’s failure to find that
Legend did not perform in a good and workmanlike manner, as well as the
contention that the trial court’s conclusion that Legend fully performed is wrong
as a matter of law.
The parties appear to agree that the implied warranty of good
workmanship applies here. The Texas Supreme Court defines ―good and
workmanlike‖ as ―that quality of work performed by one who has the knowledge,
training, or experience necessary for the successful practice of a trade or
occupation and performed in a manner generally considered proficient by those
15
capable of judging such work.‖17 Without holding that the implied warranty of
good workmanship applies in this case, we hold that the evidence supports any
refusal by the trial court to hold that Legend did not perform in a good and
workmanlike manner. Lesikar does not challenge these findings:
18. [Legend], through its manager Gary Gardner, was in constant
contact with L.W. Lesikar and/or Dale Lee through completion
of said work either in person or by telephone.
19. [Legend], through its manager Gary Gardner, provided
evidence of 77 telephone calls to or from L.W. Lesikar and 96
telephone calls to or from Dale Lee through completion of the
work on the . . . well.
....
23. The ―contract‖ for services gives no particular guidance for the
services rendered other than representations that [Legend]
―has adequate equipment in good working order and fully
trained personnel capable of efficiently operating such
equipment and performing services for Contractor[.‖]
24. During the entire period of time [Legend] made repairs to
the . . . well, it had adequate equipment which was in good
working order.
25. During the entire period of time[, Legend] had fully trained
personnel capable of efficiently operating such equipment and
performing the services for which it contracted with [the
Company].
....
27. [The Company]’s complaint was that [Legend] took too long
and did not use the methods [L.W. Lesikar] would have used.
28. The contract did not have specifications for time and method.
17
Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 354 (Tex. 1987).
16
The Company contends that Legend’s placement of the retainer below the
casing leak and top set of perforation holes breached the implied warranty of
performance in a good and workmanlike manner, yet the Company’s contention
appears to be based solely on Lesikar’s conclusions drawn from a crude drawing
by Gardner that the parties agreed was not drawn to scale. Further, to the extent
that the placement of the retainer was below the casing leak and the top set of
perforation holes, such placement nonetheless ultimately worked because the
leak was fixed.
Gardner warned Lesikar before beginning the job that because of the
well’s history and age, ―this was a high risk squeeze . . . that . . . very possibly
could take two to three times to squeeze it off.‖ In addition to denying that he
had had anything to do with perforating additional holes, Gardner gave detailed
testimony explaining each step that he took on the job and why. He also testified
about his extensive experience in the industry, the experience of the workers
who helped him on the job, and the quality of his equipment. Finally, he testified
that he believed that he had performed the work in a good and workmanlike
manner.
Lee also testified extensively about the steps taken to complete the job.
Lee testified that Gardner did not do anything wrong on the squeeze jobs. Basic
employee Billy Raines testified,
Q. And down in that hole, there’s no—a person wouldn’t want to
bet, would he, that the first time you do a squeeze job, it’s
going to work?
17
A. No. A person wouldn’t want to bet.
Q. Based on your experience, have you been on other jobs
where sometimes it’s taken two, three, maybe as many as half
a dozen times to prepare—or to repair a hole in the casing?
A. Yes.
Q. All right. So it’s not unusual, is it, for it to take three times to
repair a hole in a casing?
A. Correct.
Q. And that doesn’t necessarily mean that anybody did anything
wrong, correct?
A. Correct.
Q. It could just be the dynamics of the hole and the geology that’s
down there; is that right?
A. Yes, sir.
Bradshaw agreed that everyone can do everything right on the first
squeeze but it can still fail, and he could not name anything that Gardner had
done wrong. Finally, the third squeeze job successfully repaired the casing leak.
We therefore hold that the evidence is legally and factually sufficient to support
the trial court’s refusal to find that Legend breached any implied warranty of good
workmanship generally.
Specifically, though, the Company contends that the trial court erred by
refusing to find that Legend failed to perform in a good and workmanlike manner
by failing to circulate the well clean at the conclusion of the third squeeze job.
After completing the squeeze, Legend swabbed the well to clean it out but did not
18
circulate the well with water. The parties presented conflicting testimony about
whether circulation or swabbing is the better method to clean the well. Gardner
testified,
When I removed that retrievable bridge plug, that 3,000 feet of
fluid goes down. The producing zone is partially depleted, not much
pressure on it. So when the weight of that fluid hits, it actually—the
zone actually drinks some of that fluid. We then run our tubing down
and swab it to where we pull that fluid back out—
....
But this fluid’s coming down, goes into the formation. Then
whenever you swab it, you continue to swab it until it pulls all this
fluid back out of this formation, which actually cleans the formation
better than circulating it would.
And that was what—that was what we did in this case, is we
swabbed the well clean instead of circulating it clean. Basically
accomplishing the same thing.
We hold that the evidence is legally and factually sufficient to support the
trial court’s refusal to find that Legend breached any implied warranty of good
workmanship by failing to circulate the well clean after the third squeeze job.
Further, because the Company does not contest the trial court’s findings that
23. The ―contract‖ for services gives no particular guidance for the
services rendered other than representations that [Legend]
―has adequate equipment in good working order and fully
trained personnel capable of efficiently operating such
equipment and performing services for Contractor[;‖]
24. During the entire period of time [Legend] made repairs to
the . . . well, it had adequate equipment which was in good
working order[;]
25. During the entire period of time[, Legend] had fully trained
personnel capable of efficiently operating such equipment and
19
performing the services for which it contracted with [the
Company;]
....
27. [The Company]’s complaint was that [Legend] took too long
and did not use the methods [L.W. Lesikar] would have used[;
and]
28. The contract did not have specifications for time and method[,]
and because of our holdings regarding the trial court’s refusal to find that Legend
breached an implied warranty of good workmanship, we hold that the trial court
properly concluded that Legend fully performed its assignment and that the
evidence is legally and factually sufficient to support the trial court’s finding that
Legend completed its assignment. We therefore also hold that the trial court did
not err by failing to find that the Company incurred $26,475.64 in expenses as a
result of Legend’s failure to circulate the well clean with water at the end of the
third squeeze job. We overrule the Company’s second issue in its entirety.18
V. Findings of Fact Numbers 17 and 22
In its third issue, the Company argues in the alternative that the trial court
erred by making findings of fact numbers 17 and 22 because they are materially
inconsistent with the findings that Legend was contractually obligated to repair
the casing leak or, alternatively, because the evidence is insufficient to support
those findings. The findings provide,
18
See Gonzalez, 195 S.W.3d at 681–82; Cropper, 754 S.W.2d at 651.
20
17. [The Company] through its owner L.W. Lesikar and a pumper,
Dale Lee, employed by [the Company] were overseeing work
performed by [Legend; and]
....
22. L.W. Lesikar or his pumper, Dale Lee, were at the job site and
had the ultimate responsibility to order Legend or any other
subcontractor to alter the plan of operation that was proposed
for repair of the casing leak.
Because these findings are immaterial, given the absence of any finding that a
breach occurred on the part of Legend or any other subcontractor and given our
holdings above, we overrule the Company’s third issue.19
VI. Conclusion
Having overruled the Company’s three issues, we affirm the trial court’s
judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DELIVERED: August 18, 2011
19
See Tex. R. App. P. 44.1(a); Probus Props. v. Kirby, 200 S.W.3d 258,
264 (Tex. App.—Dallas 2006, pet. denied) (―An appellate court may disregard a
jury finding on a question that is immaterial.‖); Loaiza v. Loaiza, 130 S.W.3d 894,
904 (Tex. App.—Fort Worth 2004, no pet.).
21