Nadir N. Ali and Mumtaz Ali v. Flessner Enterprises, Inc.

NUMBER 13-15-00095-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

NADIR N. ALI AND MUMTAZ ALI, Appellants,

v.

FLESSNER ENTERPRISES, INC., Appellee.

On appeal from the 135th District Court
of DeWitt County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Longoria
Memorandum Opinion by Justice Rodriguez

Appellants Nadir N. Ali and Mumtaz Ali appeal the trial court’s judgment in favor of

appellee Flessner Enterprises, Inc. (FEI). The trial court awarded damages in the

amount of $145,543.37 and $4,500.00 in attorneys’ fees after a trial before the bench.

The Alis challenge the trial court’s judgment by four issues. We affirm.
 I. BACKGROUND

The Alis purchased a gas station by the name of FasTrak Express in DeWitt

County, Texas. Nadir entered into an oral agreement with Rodney Flessner, the

president and sole owner of FEI, by which Flessner agreed to redo the electrical wiring in

the FasTrak Express building. Because he was unable to determine the amount of work

or the specific parts that would be necessary without beginning the “tear-out” process,

Flessner did not provide Nadir with an estimate.1 Flessner testified that when he began

the work he was unaware of the scope of the job.

There was conflicting testimony between Nadir and Flessner regarding the initial

price, if any, upon which they agreed. Flessner testified that he informed Nadir that labor

would run $3,000.00 a week; Nadir testified that Flessner told him that the project would

not cost more than $40,000.00–$45,000.00. What is undisputed is that on March 30,

2009, FEI invoiced FasTrak Express, attention Nadir and Mumtaz, for $145,543.37. 2

The invoice indicated that FEI began work in 2007 and that the last day of billed work

occurred on March 16, 2009. Flessner testified that he continued to work at the premises

through June 2009 when he completed “warranty work” and “punch list things.”

Though Nadir disputed when he received the March 30 invoice, he agreed that he

never paid any additional monies to FEI. FEI did not send the Alis a demand letter and

did not place a lien on the property. Instead, FEI waited until March 28, 2013 to file a

1 Flessner testified that he redid one-hundred percent of the electrical wiring at the FasTrak

premises without the aid of blueprints or plans.

2 The invoice credited the Alis for $20,000 they had already paid to FEI.
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suit on a sworn account against the Alis.3 The Alis filed a verified denial and asserted

the statute of limitations and the statute of frauds as affirmative defenses.

On October 17, 2014, the parties tried their case to the bench of the 135th District

Court. On December 3, 2014, the trial court rendered judgment in favor of FEI and

entered a judgment requiring the Alis to pay $145,543.37 in damages and $4,500.00 in

attorneys’ fees. The Alis timely requested findings of fact and conclusions of law from

the trial court on December 17, 2014, and filed their notice of past due findings of fact and

conclusions of law on January 8, 2015. The trial court entered findings of fact and

conclusions of law on FEI’s claim on February 6, 2015. The Alis requested supplemental

findings of fact and conclusions of law on their statute-of-limitations affirmative defense.

The trial court did not enter any additional findings or conclusions. This appeal followed.

II. TEXAS RULE OF CIVIL PROCEDURE 298

By their third issue, which we address first, the Alis contend that the trial court erred

when it refused to make additional findings of fact and conclusions of law pertaining to

their statute-of-limitations affirmative defense. 4 Specifically, they contend that Texas

Rule of Civil Procedure 298 required the trial court to make their requested findings

because they were supported by the record and were not contrary to previous findings.

See TEX. R. CIV. P. 298.

3 Though the suit was tried as a suit on a sworn account before the trial court, both parties address
the issues in the context of a breach of contract claim. We note that our analysis of the substantive issues
on appeal is not impacted by this distinction because the basis of the debt action was the alleged oral
contract between the parties.

4Because the Alis’ third issue has the potential to affect our review of their first and second issues,
we address it first.
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 A. Applicable Law

The purpose of requesting findings of fact and conclusions of law from the trial

court is to narrow the issues on appeal and to limit the scope of the presumption of validity

in favor of the judgment. See Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241,

253 (Tex. App—Houston [14th Dist.] 1999, pet. denied) (recognizing that there is a

general presumption of validity extending to the judgments of courts of general

jurisdiction). Rule 298 provides that “[n]o findings or conclusions shall be deemed or

presumed by any failure of the court to make any additional findings or conclusions.”

TEX. R. CIV. P. 298. When a party requests additional findings and conclusions, the trial

court is obliged to make the additional findings and conclusions, if appropriate. See id.;

Vickery, 5 S.W.3d at 256.

Failure to make additional findings and conclusions may constitute reversible error

if the appellant is prevented from adequately presenting the matter being complained of

on appeal. Vickery, 5 S.W.3d at 256; see Tamez v. Tamez, 822 S.W.2d 688, 692–93

(Tex. App.—Corpus Christi 1991, writ denied). However, the failure to make additional

findings is not prejudicial to the appellant if the refusal does not prevent an adequate

presentation on appeal. Vickery, 5 S.W.3d at 256–57; see Tamez, 822 S.W.2d at 692–

93. In other instances, the trial court’s omission of a requested finding works to negate

the presumption of validity in favor of the judgment. See Vickery, 5 S.W.3d at 253 (“The

presumption of validity is logically rebutted only where the record suggests the trial court

was aware of the omission and its alleged significance, yet deliberately omitted the

element from its written findings.”).

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 B. Discussion

The Alis timely requested findings of fact and conclusions of law from the trial court.

Upon receiving the trial court’s findings and conclusions, they requested additional

findings and conclusions pertinent to their statute-of-limitations affirmative defense. The

trial court did not enter the additional findings and conclusions requested by the Alis. The

Alis contend on appeal that the trial court’s failure to enter the requested findings and

conclusions constitutes reversible error.

The trial court’s failure to enter the additional requested findings of fact and

conclusions of law will only constitute reversible error if we determine the Alis are

prevented from adequately presenting their statute of limitations issue on appeal. See

id. at 256; Tamez, 822 S.W.2d at 692–93. We note that there are complete reporter’s

and clerk’s records before this Court. See Vickery, 5 S.W.3d at 251. From the record,

we can clearly identify the date the lawsuit was filed, the dates of the invoiced work, and

all testimony relating to when the work was performed. Therefore any additional findings

of fact and conclusions of law as to limitations are unnecessary because we can

determine when the cause of action accrued as a matter of law. See Hunt Oil Co. v. Live

Oak Energy, Inc., 313 S.W.3d 384, 387 (Tex. App.—Dallas 2009, pet. denied)

(recognizing that the statute of limitations begins to run when the cause of action accrues

and a determination of when the cause of action accrues is a question of law).

Because the trial court’s refusal to enter additional findings of fact and conclusions

of law on the Alis’ statute of limitations affirmative defense has not prevented the Alis from

adequately presenting their issues on appeal, no error occurred. See Vickery, 5 S.W.3d

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at 256; Tamez, 822 S.W.2d at 692–93. We overrule the Alis’ third issue.

III. STATUTE OF LIMITATIONS

By their first issue, the Alis contend that the trial court erred in refusing to apply the

applicable statute of limitations to bar FEI’s claims against them. Specifically, the Alis

contend that the limitations period began to run when the contract was substantially

complete, rendering FEI’s suit untimely.

A. Applicable Law

The Texas Civil Practice and Remedies Code provides the relevant limitation

period by which a plaintiff must file suit on a debt. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 16.004(a)(3) (West, Westlaw through 2015 R.S.). It provides that a person must bring

suit on a debt claim “not later than four years after the day the cause of action accrues.”

Id.; Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002). A cause of action accrues at the

time facts come into existence which authorize a claimant to seek a judicial remedy. See

Duzich v. Marine Office of Am. Corp., 980 S.W.2d 857, 870 (Tex. App.—Corpus Christi

1998, pet. denied). In this context, we look to the case law pertaining to continuing

construction contracts to determine when the statute of limitations accrued on FEI’s claim.

See Hubble v. Lone Star Contracting Corp., 883 S.W.2d 379, 381–82 (Tex. App.—Fort

Worth 1994, writ denied) (citing Godde v. Wood, 509 S.W.2d 435, 441 (Tex. Civ. App.—

Corpus Christi 1974, writ ref'd n.r.e.). The question of when a cause of action accrues

is a question of law for this Court to decide. Moreno v. Sterling Drug, Inc., 787 S.W.2d

348, 351 (Tex. 1990).

A construction contract is generally a continuing contract under which “the

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contemplated performance and payment is divided into several parts or, where the work

is continuous and indivisible, the payment for work is made in installments as the work is

completed.” Hubble v. Lone Star Contracting Corp., 883 S.W.2d 379, 381–82 (Tex.

App.—Fort Worth 1994, writ denied) (citing Godde v. Wood, 509 S.W.2d 435, 441 (Tex.

Civ. App.—Corpus Christi 1974, writ ref'd n.r.e.); City & County of Dallas Levee

Improvement Dist. v. Halsey, Stuart & Co., 202 S.W.2d 957, 961 (Tex. Civ. App.—

Amarillo 1947, no writ)). On a continuing contract, limitations run at the earlier of: (1)

the completion of the work; (2) the termination of the contract under its own terms; or (3)

the anticipatory repudiation of the contract by one party and the adoption of the

repudiation by the other party. Hubble, 883 S.W.2d at 382; see Godde, 509 S.W.2d at

441 (“Where a claim for work, labor, or materials performed or furnished is the outgrowth

of an entire contract for continuous work, labor or materials (until the work project has

been completed), the claim will be treated and considered as an entire demand and

limitations will not commence to run until the contract has been finished.”).

B. Discussion

Our resolution of this issue hinges on our determination of when FEI’s cause of

action accrued for limitations purposes. The Alis contend that FEI’s cause of action

accrued on March 16, 2009, because that was the date on which the work was

substantially completed. See, e.g., Hubble, 883 S.W.2d at 382 (recognizing that

limitations can begin to run upon the completion of the work on a continuing contract).

However, the Alis did not cite any case, and we found none, supporting their

proposition that a debt accrues for limitations purposes upon a contractor’s substantial

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performance of the contract.5 The applicable case law cited by the Alis provides that the

cause of action does not accrue until: the “final completion” of the work6; the contract is

“finished”7; the contract has “concluded”8; or the contract has been “fully performed.”9

Therefore, we will review the record to determine when the oral contract between the Alis

and FEI was completed to determine when FEI’s cause of action accrued.

It is undisputed that FEI did not present an invoice to the Alis until March 30, 2009.

The invoice directed the Alis that payment was due upon receipt. The invoice indicated

that the last day of billed work occurred on March 16, 2009. Flessner testified that he

continued working at the FasTrak Express performing services such as “warranty work”

and “punch list things” through June of 2009. However, the additional services were

performed at no additional cost to the Alis. FEI filed suit on March 28, 2013.

5 Substantial performance does not apply in this case because it is an equitable legal theory that
(1) allows a contractor to recover its expenses even in circumstances where the job was not fully completed,
and (2) provides a contractor an affirmative defense to a breach of contract claim. See Smith v. Smith,
112 S.W.3d 275, 278–79 (Tex. App.—Corpus Christi 2003, pet. denied) (recognizing that “substantial
performance allows a party to bring a contract action to recover the full performance price, less the cost of
remedying those defects that can be fixed” and that “substantial performance can be used . . . as a defense
to a breach of contract claim”); see also Godde, 509 S.W.2d at 441 (recognizing that a contractor that has
substantially performed a contract is permitted to sue under the contract “so far as a condition precedent
to a right to recover” is concerned).
6 See Alexander & Polley Const. Co. v. Spain, 477 S.W.2d 301, 303 (Tex. App.—Tyler 1972, no
writ) (“Where a continuing contract is contemplated, the cause of action for the breach thereof does not
accrue until final completion thereof.”) (emphasis added).

7 See Godde v. Wood, 509 S.W.2d 435, 441 (Tex. App.—Corpus Christi 1974, writ ref’d n.r.e.)

(“Where a claim for work, labor, or materials performed or furnished is the outgrowth of an entire contract
for continuous work, labor or materials (until the work project has been completed), the claim will be treated
and considered as an entire demand and limitations will not commence to run until the contract has been
finished.”) (emphasis added).

8 See id.

9 See Intermedics Inc. v. Grady, 683 S.W.2d 842, 845–46 (Tex. App.—Houston [1st Dist.] 1984,

writ ref’d n.r.e.) (“If the parties' agreement contemplates a continuing contract for performance, the
limitations period does not usually commence until the contract is fully performed, unless one party refuses
to fulfill the contract or prevents the other party from performing.”) (emphasis added).
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 The Alis contend that FEI’s cause of action accrued on March 16, 2009, because

it was the last day charged work was performed on the premises and was the date by

which FEI substantially performed the contract. However, the Alis’ position would have

FEI’s debt action accrue before FEI even submitted an invoice for payment. As the basis

for FEI’s claim is the Alis’ failure to pay the invoiced amount, we cannot agree with the

Alis that FEI’s claim accrued approximately two weeks before payment was formally

requested. See Hubble, 883 S.W.2d at 382; Godde, 509 S.W.2d at 441. Because

limitations on a continuing contract run at the earlier of (1) the completion of the work; (2)

the termination of the contract under its own terms; or (3) the anticipatory repudiation of

the contract by one party and the adoption of the repudiation by the other party, we

determine that limitations ran, at the earliest, when the contract terminated under its own

terms on March 30, 2009—the day that FEI invoiced the Alis noting that payment was

due upon receipt. See Hubble, 883 S.W.2d at 382. At that time facts came into

existence which authorized FEI to seek a judicial remedy. See Duzich, 980 S.W.2d 870.

Because FEI filed suit within four years of the date its cause of action accrued, it

was within the limitations period set forth in the civil practice and remedies code. See

TEX. CIV. PRAC. & REM. CODE ANN. § 16.004(a)(3); Hubble, 883 S.W.2d at 382; Godde,

509 S.W.2d at 441. The trial court did not err in refusing to apply a statute-of-limitations

bar to FEI’s claims against them. We overrule the Alis’ first issue.

IV. STATUTE OF FRAUDS

By their second issue, the Alis challenge the legal sufficiency of the evidence

supporting the trial court’s judgment in favor of FEI because they contend the oral contract

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that formed the basis of FEI’s debt action violated the statute of frauds as a matter of law.

Specifically, the Alis argue that the “lack of a written contract places the agreement

squarely within the statute of frauds and negates the trial court’s judgment” and that “the

oral agreement lacks the specificity and definiteness required for even an oral contract to

be enforceable.”10 FEI responds that the oral contract was for services and therefore not

subject to the statute of frauds, and that it was fully performed.

Whether a contract falls within the statute of frauds is a question of law that we

review de novo. Cont’l Casing Corp. v. Siderca Corp., 38 S.W.3d 782, 787 (Tex. App.—

Houston [14th Dist.] 2001, no pet.). Texas's version of the Uniform Commercial Code's

(UCC) statute of frauds is set forth in section 2.201 of the Texas Business and Commerce

Code. Section 2.201(a) states, in pertinent part:

Except as otherwise provided in this section a contract for the sale of goods
for the price of $500 or more is not enforceable by way of action or defense
unless there is some writing sufficient to indicate that a contract for sale has
been made between the parties and signed by the party against whom
enforcement is sought or by his authorized agent or broker. . . .

TEX. BUS. & COMM. CODE ANN. § 2.201(a) (West, Westlaw through 2015 R.S.).

To determine whether the statute of frauds applies we must ask whether the oral

contract was a contract for the sale of goods or for services. See Cont’l Casing, 38

10 Though not raised as a separate issue, the Alis also contend that the oral contract failed because

it did not satisfy all elements of contract formation; specifically that the price was not agreed to by the
parties. See Labor Ready Cent. III L.P. v. Gonzalez, 64 S.W.3d 519, 522 (Tex. App.—Corpus Christi 2001,
no pet.) (noting that a “meeting of the minds” as to the essential elements is necessary for contract
formation). We construe the Alis’ contention to challenge the legal sufficiency of the evidence supporting
the trial court’s finding in favor of FEI. The record evidences that Flessner testified that he quoted Nadir
$3,000.00 a week in labor costs before beginning the job. We determine that there was legally sufficient
evidence in the record to support the trial court’s implied finding that the parties agreed on the required
terms to the contract. See id.; see also Kroger Tex. Ltd. v. Suberu, 216 S.W.3d 788, 795 (Tex. 2006) (“A
challenge to the legal sufficiency of the evidence will be sustained when the evidence offered to establish
a vital fact does not exceed a scintilla.”).
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S.W.3d at 787. Under the UCC, goods are defined as “all things (including specially

manufactured goods) which are movable at the time of identification to the contract for

sale. . . .” TEX. BUS. & COMM. CODE ANN. § 2.201(a). A “sale” consists of “the passing

of title from the seller to the buyer for a price,” and a “contract for sale” includes a contract

to sell goods in the future. Id. § 2.106(a) (West, Westlaw through 2015 R.S.). “Where

a contract contains a mix of goods and services, the UCC applies if the sale of goods is

the ‘dominant factor’ or ‘essence’ of the transaction.” See Tarrant County Hosp. Dist. v.

GE Automation Serv., Inc., 156 S.W.3d 885, 893 (Tex. App.—Fort Worth 2005, no pet.);

Cont’l Casing, 38 S.W.3d at 787; see also, e.g., WesTech Eng'g, Inc. v. Clearwater

Constructors, Inc., 835 S.W.2d 190, 197 (Tex. App.—Austin 1992, no writ). Thus, to

determine whether the UCC’s statute of frauds applies here, we must decide whether the

dominant factor or essence of the agreement is a “contract for the sale of goods.” E. Hill

Marine, Inc. v. Rinker Boat Co., 229 S.W.3d 813, 819 (Tex. App.—Fort Worth 2007, pet.

denied) (citing Cont’l Casing, 38 S.W.3d at 787).

Nadir testified on direct-examination that he hired Flessner to “do work for him”

and further clarified that Flessner was hired to do electric work and redo the wiring at the

FasTrak Express. Flessner also testified that he was hired to rewire the store “100

percent.” The FEI invoice also charged nearly twice the amount for labor than the

amount charged for parts: FEI invoiced the Alis for over $95,000.00 in labor and only a

little over $50,000.00 in parts. Although FEI billed the Alis for parts necessary to

complete the electric work and rewiring, the essence of the contract was one for services

and not goods. See id. Because the oral contract between the parties was one for

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services and not goods, the statute of frauds does not apply. See id. We overrule the

Alis’ second issue on appeal.

V. ATTORNEYS’ FEES

By their fourth issue, the Alis contend that there is no evidence to support the trial

court’s award of attorneys’ fees to FEI. Specifically, the Alis argue that FEI’s attorney

did not present any testimony or other evidence in support of FEI’s claimed attorneys’

fees.

A. Standard of Review and Applicable Law

Because the Alis are challenging the legal sufficiency of the evidence to support a

finding on which they did not have the burden of proof at trial, they must demonstrate that

no evidence supports the finding. See Brockie v. Webb, 331 S.W.3d 135, 138 (Tex.

App.—Dallas 2010, no pet.) (citing Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.

1983)). If more than a scintilla of evidence exists supporting the trial court’s award of

attorneys’ fees, the Alis’ legal sufficiency challenge fails. See id.

A determination of reasonable attorneys’ fees is a question for the trier of fact.

See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 12 (Tex. 1991). Factors that a

fact-finder should consider when determining the reasonableness of a fee include:

(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill required to perform the legal service properly;

(2) the likelihood that the acceptance of the particular employment will
preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;
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 (6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and

(8) whether the fee is fixed or contingent on the results obtained or
uncertainty of collection before the legal services have been
rendered.

Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).

Evidence of each of the Andersen factors is not required to support an award of

attorneys’ fees. See Arthur J. Gallagher & Co. v. Dieterich, 270 S.W.3d 695, 706 (Tex.

App.—Dallas 2008, no pet.) (op. on reh’g); see also Sw. Grain Co. v. Pilgrim’s Pride S.A.

de C.V., No. 13-07-00557-CV, 2010 WL 2638483, *8 (Tex. App.—Corpus Christi June

28, 2010, pet. denied) (mem. op.) (recognizing that it is sufficient for an attorneys’ fees

expert to testify that he “reviewed an attorney’s file and that he offer[ed] an opinion that

the fees charged for that work were reasonable and necessary”). In reviewing an award

of attorneys’ fees, we look at the entire record, the evidence presented, the amount in

controversy, the common knowledge of the participants, and the relative success of the

parties. See Garrod Invs., Inc. v. Schlengel, 139 S.W.3d 759, 767 (Tex. App.—Corpus

Christi 2004, no pet.).

B. Discussion

Considering the Andersen factors, we note that there was some evidence in the

record in support of the attorneys’ fees award. See Andersen, 945 S.W.2d at 818;

Dieterich, 270 S.W.3d at 706. This case was on file in district court for over two years.

During that time FEI’s counsel responded to the Alis’ traditional motion for summary

judgment on their affirmative defenses. Additionally, this case was tried before the court,

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and FEI’s counsel secured a judgment in excess of six figures on behalf of his client.

See Andersen, 945 S.W.2d at 818 (recognizing the length of the time the case was

pending, the amount in controversy, the results obtained, and the difficulty of the legal

questions involved as factors in determining the reasonableness of an award of attorneys’

fees). During trial, FEI called its attorney to the stand to testify regarding attorneys’ fees.

FEI’s counsel testified as follows: “It’s my testimony that a reasonable and necessary

attorney’s fee for the type of case and the amount of work involved in this cause would

be $4,500.00.” The trial court awarded FEI the requested $4,500.00.

We therefore determine that there was some evidence in the record to support the

trial court’s award of the attorneys’ fees. See Andersen, 945 S.W.2d at 818. We

overrule the Alis’ fourth issue on appeal.

VI. CONCLUSION

We affirm the judgment of the trial court.

NELDA V. RODRIGUEZ
Justice

Delivered and filed the 1st
day of October, 2015.

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