TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00059-CV
Cintas Corporation, Appellant
v.
Daniel Gomez, Individually, d/b/a Eco Star Lawn & Landscape, Appellee
FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY, NO. C-1-CV-11-001485,
HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING
MEMORANDUM OPINION
Cintas Corporation (hereafter Cintas) sought to recover liquidated damages under the
terms of its uniform rental contract with Daniel Gomez, d/b/a Eco Star Lawn & Landscape (hereafter
Gomez). After a bench trial, the trial court rendered a take-nothing judgment against Cintas. We
will affirm the judgment.
BACKGROUND
On February 23, 2009, the parties signed a written rental agreement for services
whereby Cintas would personalize uniforms for Gomez and furnish them to Gomez weekly to be
worn by his landscaping employees. The contract stated that if Gomez terminated the contract before
the sixty-month term expired, or Cintas terminated the agreement for cause, Gomez would pay
Cintas an amount based on a formula set out in their agreement. In this suit brought against Gomez,
Cintas alleged that Gomez terminated the contract before the term expired. Gomez denied
terminating the contract and alleged the affirmative defenses of waiver, payment, accord and
satisfaction, and estoppel.
Gomez admitted that he fell behind in his payments. He testified, however, that he
talked to Sharon Reid, the accounts receivable clerk at Cintas, several times about his account and
inability to pay. By September 2010, the account became delinquent with a past-due balance of
$1,417.79. Gomez testified that Cintas “froze” services until he could get caught up, as had
happened at least once before. In November, an attorney for Cintas made written demand on Gomez,
stating that due to Gomez’s termination of the contract, he was obligated to pay the delinquent
balance, liquidated damages for breach of contract of $6,609.58 based on the contractual formula,
and attorney’s fees.
After Gomez received the attorney’s demand letter by regular mail, he called Cintas
and spoke to Reid. Reid had been Gomez’s sole contact person throughout the contract term.
Gomez told Reid that he was experiencing financial difficulties but that after the first of the year he
would be able to pay the delinquency so that Cintas could unfreeze the account and resume his
services. Gomez had dealt with Reid before when his payments fell behind, and he had arranged to
pay his account current and resume services. Reid suggested that they could talk after the first of
the year.
On January 3, 2011, Gomez called Reid to pay his delinquent account balance in full,
and he requested that Cintas resume uniform delivery services. Gomez testified that Reid said that
she would need to talk to her manager to be certain that she could accept payment, and she put
Gomez on hold. When she resumed the phone conversation, Reid told Gomez, “Yes, we can accept
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your payment.” Gomez paid $1,475.40 by credit card over the telephone. This was the balance
amount Reid had given him, although it was slightly more than the previously stated delinquent sum.
Gomez expressed to Reid that he wanted to unfreeze his account and resume services. Although
Reid did not expressly state that Cintas would resume service, Gomez testified that she implied to
Gomez that they would accept payment so that, as he put it, they could “get squared away and going
again.” Gomez asked when someone could come inventory the uniforms he had so that they could
resume service, and Reid stated that she would get back in touch with him. There was no discussion
that Gomez owed additional money or needed to contact Cintas’s attorney. After receiving payment,
Albert Hernandez, the office manager, sent Gomez an email confirming that Gomez’s payment had
been approved and thanking him for his order. Nevertheless, although Gomez had paid his past-due
balance, Reid never contacted him, and Cintas did not resume service or pick up the uniforms
Gomez had.
More than a month after Gomez made his payment, Cintas filed suit to recover
liquidated damages for breach of contract and attorney’s fees, alleging that Gomez had terminated
the contract. Dick Schwab, the general manager, testified that when a customer quits paying, they
assume the customer terminated the contract. Gomez denied terminating the contract, testifying that
on several occasions he had expressed to Reid that he wished to continue services when he could pay
his account current. After hearing the evidence, the trial court rendered a take-nothing judgment
against Cintas. Although Cintas timely requested findings of fact and conclusions of law and filed
a notice of late filing, none were filed.
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DISCUSSION
Cintas claims in three points of error that the trial court erred by failing to file findings
of facts and conclusions of law and by failing to render judgment in favor of Cintas for liquidated
damages and attorney’s fees.
The trial court’s failure to file findings of fact and conclusions of law is ordinarily
presumed harmful, unless the record reflects that appellant suffered no harm. Tenery v. Tenery,
932 S.W.2d 29, 30 (Tex. 1996). In reviewing the trial court’s failure to file findings of fact and
conclusions of law, we are required to determine whether the complaining party suffered harm as
a result. Burnet Cent. Appraisal Dist. v. Millmeyer, 287 S.W.3d 753, 756 (Tex. App.—Austin 2009,
no pet.). The test is whether the circumstances of the case would require the party to guess the
reason or reasons for the trial court’s ruling. Id. (citing Sheldon Pollack Corp. v. Pioneer Concrete
of Tex., Inc., 765 S.W.2d 843, 845 (Tex. App.—Dallas 1989, writ denied)). When there is only a
single ground of recovery or a single defense, the appellant suffers no harm, because the reason for
the trial court’s judgment is clear, and the appellate court does not have to guess the reason for the
trial court’s decision. Nevada Gold & Silver, Inc. v. Andrews Indep. Sch. Dist., 225 S.W.3d 68, 77
(Tex. App.—El Paso 2005, no pet.). On the other hand, when there are multiple grounds for
recovery or multiple defenses, an appellant is forced to guess what the trial court’s findings were,
unless they are provided to him. Larry F. Smith, Inc. v. The Weber Co., 110 S.W.3d 611, 614 (Tex.
App.—Dallas 2003, pet. denied); Nevada Gold & Silver, 225 S.W.3d at 77. Putting the appellant
in the position of having to guess the trial court’s reasons for rendering judgment against him defeats
the inherent purpose of Rules 296 and 297. Larry F. Smith, 110 S.W.3d at 614; see also Tex. R. Civ.
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P. 296, 297. The purpose of a request under the rules is to “narrow the bases of the judgment to only
a portion of [the multiple] claims and defenses, thereby reducing the number of contentions that the
appellant must raise on appeal.” Id. (citing 6 McDonald & Carlson, Texas Civil Practice § 18:3 (2d
ed. 1998)).1
Cintas asserts that it must have findings because there are multiple “conceivable
defensive theories” or facts that might excuse the customer from its obligations under the contract.
It concedes, however, that there were no pleadings, no evidence, and no arguments asserted in the
trial court to support any such potential defenses or claims. The record reflects that the only
defensive theory asserted was waiver based upon payment.
The facts of the case are straightforward. Cintas alleged at trial that Gomez
terminated the contract by failing to pay his charges, thereby triggering the early termination clause
entitling Cintas to contractual damages. Gomez responded that he did not terminate the contract and
that Cintas waived further damages by accepting his payment.
It is undisputed that Gomez never expressed a wish to terminate the contract. Gomez
denied terminating the contract, testifying that he always wanted to continue services once he could
become current on his payments, and that he expressed the same to Cintas; it was his position that
Cintas terminated the contract. On appeal, Cintas shifts its allegations and adopts the position that
Cintas terminated the contract for cause.
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Cintas also argues that the harm here is incurable, and therefore it is entitled to a new trial.
The trial judge (Hon. David Phillips) is still on the bench, however, and the error could be remedied
by abating the appeal and directing the trial court to file the needed findings. See Tex. R. App.
P. 44.4(a)(2).
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Regardless whether Gomez terminated the contract by failing to pay for several
months or whether Cintas terminated the contract for cause due to Gomez’s failure to pay, the
liquidated damages set forth in the contract are the same for either situation. The question is whether
Cintas waived its right to recover the liquidated contract damages by accepting payment for the
delinquent account.
There is evidence that before suit was filed, Gomez contacted the company and was
given leave to pay his past-due account balance in full. Cintas contends that there is no evidence that
Sharon Reid had authority to waive its claim for liquidated damages by accepting this payment. The
evidence shows, however, that Reid did not make this decision. Before accepting payment, she
asked permission from her general manager, Albert Hernandez, who gave consent. The manager did
not decline Gomez’s payment. He did not direct Gomez to contact the attorney, to pay the contract
damages as calculated by Cintas, or to pay attorney’s fees. Instead, Gomez was informed that the
manager gave Reid approval to accept Gomez’s payment for the past-due balance on the account,
and that she would get back to Gomez as to when the rental services would resume. Shortly
thereafter, Hernandez sent Gomez notice that Cintas approved the payment and expressed thanks for
his order.
Cintas directs its argument on appeal to Reid’s lack of authority to waive the
remaining damages but does not address the manager’s authority to accept payment and waive
damages. The pleadings and evidence reflect that the basis for denying Cintas’s claim for liquidated
damages due to early termination is waiver. Cintas contends that the trial court erred by not
awarding it liquidated damages and attorney’s fees, because there is insufficient evidence to support
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a finding that it waived these claims against Gomez merely by accepting his credit card payment for
the overdue account balance. Although an appellate court generally does not rely upon the trial
court’s oral pronouncements, the record reflects that, in rendering his oral ruling, the trial court stated
that the evidence showed Cintas waived its additional damages. We hold that under the facts of this
case, Cintas was not harmed by the trial court’s failure to file findings of fact and conclusions of law.
Cintas next asserts that the trial court erred by failing to award it liquidated damages
and attorney’s fees. In effect, and without couching its issue in this manner, Cintas contends that the
contract and evidence prove that it is entitled to judgment as a matter of law.
When a party attacks the legal sufficiency of an adverse finding on which he has the
burden of proof, he must demonstrate on appeal that the evidence establishes, as a matter of law, all
vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241-42 (Tex. 2001).
In reviewing a matter-of-law challenge, the reviewing court must first examine the record for
evidence that supports the finding, while ignoring all evidence to the contrary. Id. If there is no
evidence to support the finding, then the reviewing court will examine the entire record to determine
if the contrary proposition is established as a matter of law. Id. The issue should be sustained only
if the contrary proposition is conclusively established. Id.
As set forth above, the record contains evidence from which the trial court could find
that Cintas waived its right to recover liquidated damages and attorney’s fees. Accordingly, we hold
that Cintas did not prove that it was entitled to recover these damages as a matter of law.
CONCLUSION
We overrule Cintas’s points of error and affirm the trial court’s judgment.
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_____________________________________________
Marilyn Aboussie, Justice
Before Chief Justice Jones, Justices Rose and Aboussie*
Affirmed
Filed: February 14, 2014
*Before Marilyn Aboussie, Chief Justice (retired), Third Court of Appeals, sitting by
assignment. See Tex. Gov’t Code § 74.003(b).
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Cintas Corporation v. Daniel Gomez, Individually, D/B/A Eco Star Lawn & Landscape
Combined Opinion