Terry Randall v. Herbert J. Walker D/B/A Walker Water Well And Walker Water Well Services, LLC

ACCEPTED
03-15-00317-CV
7147667
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/29/2015 2:23:28 PM
JEFFREY D. KYLE
CLERK
CAUSE NO. 03-15-00317-CV

FILED IN
3rd COURT OF APPEALS
IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS
AUSTIN, TEXAS 9/29/2015 2:23:28 PM
JEFFREY D. KYLE
Clerk
TERRY RANDALL
Appellant

vs.

HERBERT WALKER D/B/A, WALKER WATER WELLS AND
WALKER WATER WELL SERVICES, LLC
Appellees

From Cause No. 423-2441
In the 423rd Judicial District Court
Bastrop County, Texas

APPELLANT TERRY RANDALL’S BRIEF

S. Cory Sells
State Bar No. 24075525
Craig Welscher
State Bar No. 21167200
The Welscher Law Firm, P.C.
1111 North Loop West, Suite 702
Houston, Texas 77008
(713) 862-0800 – Telephone
(713) 862-4003 – Facsimile
Email: csells@welscherlaw.com
Attorneys for Appellant
 IDENTITY OF PARTIES AND COUNSEL

Appellant

Terry Randall

Appellant’s Trial and Appeal Counsel

S. Cory Sells
SBN: 24075525
Craig Welscher
SBN: 21167200
The Welscher Law Firm, P.C.
1111 N. Loop West, Suite 702
Houston, Texas 77008
Telephone: (713) 862-0800
Facsimile: (713) 862-4003
Email: csells@welscherlaw.com

Appellee

Herbert Walker d/b/a
Walker Water Wells and
Walker Water Well Services, LLC

Appellees’ Trial Counsel

Alex Metcalf
SBN: 24058000
807 Pecan Street
Bastrop, Texas 78602
(512) 303-6963 – Telephone
(512) 303-6766 – Facsimile
Email: alex@lostpineslawyer.com
Attorney for Appellant

ii
 TABLE OF CONTENTS

PAGE
Identity of Counsel and Parties.................................................................................ii

Table of Contents.....................................................................................................iii

Index of Authorities…………….............................................................................vii

Statement of the Case................................................................................................1

Issues Presented……….............................................................................................2

Statement of Facts….................................................................................................3

A. Oral Agreement of Drilling Wells in Exchange for Drilling Rig........3

B. Breach of the Oral Agreement…..........................................................5

1. The First Well Produced Sandy, Orange Water…………….…5

2. The Second Well Produced Sandy Water……………..…….…5

3. The Third Well Produced Sandy and “Blackish” Water………6

4. Randall Kept His End of the Agreement………………………6

C. Randall was Damaged by Walker’s Breach…………………..………6

D. Jury Verdict for Randall Disregarded…………………..…………….7

Summary of the Argument........................................................................................8

Argument...................................................................................................................9

A. THE NO EVIDENCE STANDARD FOR ATTACKING ADVERSE FINDINGS BY A JURY…9

B. QUESTION NUMBER ONE: EXISTENCE AND TERMS OF THE AGREEMENT…….....10

iii
 1. Disregarded for No Supporting Evidence…............................................10

2. Offer: Randall Testified of the Terms Negotiated Between the
Parties.......................................................................................................11

3. Acceptance: Walker Testified that He Drilled the Wells and Was
Responsible for the Correct Drilling of the Wells………………...........12

4. Part Performance Under an Agreement May Remove Uncertainty and
Establish that a Contract is Enforceable…...............................................14

C. QUESTION NUMBER TWO: BREACH BY WALKER................................................17

1. Disregarded for No Supporting Evidence................................................17

2. Expert Testified the Well Water was Harmful to Humans and Animals
and Full of Sand ……………………………………………..................17

D. QUESTION NUMBER THREE: DAMAGES…………………………….................18

1. Disregarded for No Supporting Evidence…............................................18

2. $89,596.06 Paid for Worthless Wells……………...………..................18

3. Walker’s Attorney Stated the Market Value of the Wells was
$22,000…………………………………………………………………19

E. QUESTION NUMBER FOUR: ATTORNEY’S FEES……………………….................20

1. Disregarded for No Supporting Evidence................................................20

2. Uncontested, Reasonable Testimony Established the Attorney’s fees as a
Matter of Law…………………………………………………………...21

3. Evidence was Put Before the Jury of $30,845.00 in Reasonable
Attorney’s fees………………………………………………………….23

iv
 F. REQUEST TO FIND A JUDICIAL ADMISSION: RAISED AS TO QUESTION ONE AND
TWO…………………………………………………………………...…….23

1. Herbert Cannot Rely on a Judicial Admission that He Failed to
Protect…………………………………..................................................24

2. Contradictory Testimony is a Quasi-Admission for the Fact Finder to
Resolve ……………………………………….………………………...25

G. WALKER WATER WELLS DID NOT FILE ANY POST-TRIAL MOTION…..……..……27

Conclusion...............................................................................................................27

Prayer.......................................................................................................................28

Certificate of Compliance........................................................................................28

Certificate of Support..............................................................................................29

Certificate of Service...............................................................................................29

Appendix....................................................................................................................a

1. Clerk’s Record

a. Charge of the Court

b. Defendant’s Motion For Judgment Non Obstante Veredicto
c. Defendant Herbert Walker’s Post Verdict Brief

d. Judgment

2. Reporter’s Record

a. Volume 3

i. Excerpts of Examination of Terry Randall

v
 ii. Excerpts of Examination of Herbert Walker

iii. Excerpts of Examination of Tom Frist

iv. Excerpts of Examination of S. Cory Sells

b. Volume 4

i. Objections By Mr. Metcalf, Attorney for Appellees on Submission
of Jury Question One and Two

ii. Excerpts of Closing Statements by Mr. Metcalf

c. Volume 7

i. Plaintiffs’ Exhibit 2

ii. Plaintiffs’ Exhibit 4

iii. Plaintiffs’ Exhibit 8

vi
 INDEX OF AUTHORITIES

TEXAS CASE LAW:

Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)……………………………...23

Brown v. Bank of Galveston, 930 S.W.2d 140, 145 (Tex. App.- Houston [14th
Dist.] 1996), aff’d, 963 S.W.2d 511 (Tex. 1998)…………………………………21

Cale’s Clean Scene Carwash, Inc. v. Hubbard, 76 S.W.3d 784, 786 (Tex. App.-
Houston [14th Dist.] 2002, no pet.)……………………………………………….23

City of Keller v. Wilson, 168 S.W.3d 802, 810, 819, 822, 827 (Tex. 2005)…….9

Crisp Analytical Lab, L.L.C., v. Jakalam Props., Ltd, 422 S.W.3d 85, 88 (Tex.
App.—Dallas 2014, pet. denied)………………………………………………….16

Croucher v. Croucher, 660 S.W.2d 55, 58,(Tex. 1983)…………………………....9

Cullins v. Foster, 171 S.W.3d 521, 538-39 (Tex. App.- Houston [14th Dist.] 2005,
pet. denied)………………………………………………………………………..21

El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761-62 (Tex. 2012)…………………22

Fiduciary Fin. Servs. of Sw. Inc. v. Corilant Fin., L.P., 376 S.W.3d 253, 256 (Tex.
App.—Dallas 2012, pet. denied)………………………………………………….14

Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 847 (Tex.
2000)………………………………………………………………………………14

Griffin v. Superior Insurance Co., 338 S.W.2d 415, 419 (Tex.1960)…………….26

Harris Cnty. v. Hall, 141 Tex. 388, 172 S.W.2d 691, 694-95 (Tex. 1943)……….26

Hurlbut v. Gulf Atlantic Life Ins. Co., 749 S.W.2d 762, 765 (Tex. 1987)……24-25

Komet v. Graves, 40 S.W.3d 596, 601 (Tex. App.-San Antonio 2001, no
pet.)………………………………………………………………………………..15

Learners Online, Inc. v. Dallas Indep. Sch. Dist., 333 S.W.3d 636, 643 (Tex. App.-
-Dallas 2009, no pet.)……………………………………………………………..14
vii
Lofton v. Texas Brine Corp., 777 S.W.2d 384, 386 (Tex. 1989)………………….21

Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998)………….9

Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989)……………………………...24

Midland Western Bldg., L.L.C. v. First Serv. Air Conditioning Contractors, Inc.,
300 S.W.3d 738, 739 (Tex. 2009)………………………………………………...22

Miller v. Bock Laundry Machine Co., 568 S.W.2d 648, 652 (Tex. 1977)………..27

Mendoza v. Fidelity & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex.
1980)…………………………………………………………………………..25, 26

Palestine Water Well Servs., Inc. v. Vance Sand & Rock, Inc., 188 S.W.3d 321,
324-27 (Tex. App.—Tyler 2006, no pet.)………………………………..15, 18, 19

Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990)......21

Regal Fin. Co., Ltd. v. Tex Star Motors, Inc., 355 S.W.3d 595, 603 (Tex.2012)…13

Rosenblatt v. Freedom Life Ins. Co. of Am., 240 S.W.3d 315, 323 (Tex. App.-
Houston [1st Dist.] 2007)……………………………………………………..…..22

Sadeghi v. Gang, 270 S.W.3d 773, 776 (Tex. App.—Dallas 2008, no
pet.)………………………………………………………………………………..15

Schlager v. Clements, 939 S.W.2d 183, 193 (Tex. App.- Houston [14th Dist.] 1996,
writ denied)………………………………………………………………………..22

Smith v. Patrick W.Y. Yam Trust, 296 S.W.3d 545, 546 (Tex. 2009)……………..23

TX Far West, Ltd. v. Tex. Invs. Mgmt., 127 S.W.3d 295, 308 (Tex. App.—Austin
2004 no pet.)………………………………………………………………….…26

United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224, 229
(Tex.Civ.App.-San Antonio 1951, writ refused n.r.e.)………………………….27

viii
 STATEMENT OF THE CASE

The Jury returned a verdict in favor of Plaintiff and Appellant herein, Terry

Randall (“Randall”) against Defendants and Appellees, Herbert Walker d/b/a

Walker Water Wells (“Herbert”) and Walker Water Well Services, LLC, (“WWW”

or jointly “Walker”), for the breach of an oral contract for the drilling of three

water wells by Walker on Randall’s property. (CR: 699-707). Trial Court granted

Herbert’s Motion for Judgment No Obstante Veridicto, dismissing Randall’s

claims as to both Herbert and Walker and ordering that Randall “take nothing as a

result of this suit.” (CR 739). This appeal followed.

1
 ISSUE PRESENTED

1. Was there sufficient evidence presented at trial to support the Jury’s verdict.

2
 STATEMENT OF FACTS

A. Oral Agreement of Drilling Wells in Exchange for Drilling Rig

Randall entered into an oral agreement with Walker for the drilling of three

good water wells on Randall’s property. (R.R. Vol. 3, at p. 60:8-61:24; and 115:15-

22). Randall testified that Walker agreed to drill Randall three good wells in

consideration for the title for the drilling rig owned by Randall. (Id; R.R. Vol. 3, at

p. 179:25-180:20). Randall was to pay the expenses and Walker was to use

Randall’s drilling rig to drill the wells. (R.R. Vol. 3, at p. 61:22-24). On cross

examination, Randall discussed other terms which were included by him and

Walker through the ongoing negotiations during the work of drilling the three

wells. (R.R. Vol. 3, at p. 119:4-19). These other terms included:

a. Walker would drill the wells to two-hundred and fifty feet deep (R.R.

Vol. 3, at p. 119:4-14; 121:6-14);

b. Walker could use Randall’s drilling rig to drill the wells (R.R. Vol. 3,

at p. 179:25-180:17);

b. Walker would set the tanks and pumps in the wells (R.R. Vol. 3, at p.

120:19-121:5); and

c. The wells would produce good water (R.R. Vol. 3, at p. 121:6-14),

which was defined as potable water. (R.R. Vol. 3, at p. 117:10-14).

Randall testified that these terms were all agreed to by Walker. (R.R. Vol. 3,
3
at p. 60:8-61:7; 115:15-22; and 123:6-14;). The jury saw four color photos

showing the finished wells with tanks on slabs of concrete. (R.R. Vol. 7, at p.

59,60, 62, and 66).

Walker testified that:

1) he operated the drilling rig on Randall’s property (R.R. Vol. 3, at p.

170:16-18);

2) he and his sons were responsible for the correct drilling of the three wells

(R.R. Vol. 3, at p. 181:6-10);

3) he filled out well reports for the three wells, listing himself as the licensed

driller (R.R. Vol. 3, at p. 170:7-15); and

4) the reports were filed with the State of Texas. (R.R. Vol. 3, at p. 170:7-

15).

But, Walker denied that he and Randall had an agreement to drill the wells. (R.R.

Vol. 3, at p. 166:4-19).

Randall testified that he and Walker had a prior history of oral contracts in

which payment was then made to “Walker Water Well Service” for work Walker

performed for Randall. (R.R. Vol. 3, at p. 58:4-5). The check showing the course

of dealings between Randall and Walker was admitted as evidence in the trial.

(R.R. Vol. 7, at p. 5).

4
B. Breach of the Oral Agreement

1. The First Well Produced Sandy Orange Water

Randall testified that the first of the three wells was drilled by Walker and

his two sons, Adam and Thomas Walker, while Randall was out of town. (R.R.

Vol. 3, at p. 64:4-13). Walker failed to reach 250 feet with the first well. (R.R. Vol.

3, at p. 64:13-14).

Randall described the water quality of the first well as being “terrible.” (R.R.

Vol. 3, at p. 65:1-21). The water from the first well was orange and full of sand and

began to ruin Randall’s plumbing fixtures. Id. Walker stated that he could not

contradict Randall’s testimony as to the water quality of the first well. (R.R. Vol. 3,

at p. 170:24-171:6).

Randall’s expert witness as to water well drilling practices and water well quality,

Thomas Frist (“Frist”), opined that the water from the first well was full of iron,

harmful to plants, animals and humans, and non-potable. (R.R. Vol. 3, at p.

186:10-16 and 195:21-24).

2. The Second Well Produced Sandy Water

The second well was drilled to only two hundred and thirty feet, again

falling short of the agreed 250 feet. (R.R. Vol. 3, at p. 66:22-25). Randall testified

that the water produced was full of sand. (R.R. Vol. 3, at p. 67:21-68:3). The sand

was so bad it destroyed the first water pump. Id. Frist also testified that he found
5
sand in the water from well two. (R.R. Vol. 3, at p. 187:2-8). In Frist’s expert

opinion, there should not be sand in the well water. Id.

3. The Third Well Produced Sandy and “Blackish” Water

Randall testified that the water coming from the third well was sandy, dirty,

and blackish. (R.R. Vol. 3, at p. 69:18-70:6). Randall recalled that if the water sat,

it would pump out stinky, nasty water with a black residue. Id. He asserted that this

was not good water. Id. Frist testified that the water produced by well number three

contained a level of sand not contained in good water. (R.R. Vol. 3, at p. 186:2-8).

4. Randall Kept His End of the Agreement

Herbert testified that he used Randall’s drilling rig on Randall’s property.

(R.R. Vol. 3, at p. 180:10-20). Herbert also testified that the drilling rig, including

its title, was transferred in exchange for the drilling of the wells. Id. Randall

testified that he spent $9,596.06 on the expenses for the construction of the three

wells. (R.R. Vol. 3, at p. 113:15-21).

C. Randall was Damaged by Walker’s Breach

Randall testified that the wells drilled for him by Walker were of no value.

(R.R. Vol. 3, at p. 71:6-13). He also testified that the market value of the title of the

drilling rig Randall transferred to Walker was $80,000.00. (R.R. Vol. 3, at p. 61:8-

21). Herbert agreed that the drilling rig was paid in exchange for the three wells

drilled. (R.R. Vol. 3, at p. 180:10-20). Randall testified that he was seeking
6
damages of the value of the drilling rig and the expenses paid, totaling $89,596.06.

(R.R. Vol. 3, at p. 114:6-17).

Randall further testified that a demand for Walker to fix the wells was made,

but Walker never returned to fix them. (R.R. Vol. 3, at p. 115:4-8). He testified that

Walker paid no amount towards the balance of the damages suffered. Id. Randall

testified that he was required to hire attorneys to help and was seeking his

attorney’s fees. (R.R. Vol. 3, at p. 114:18-115:3). Randall’s Attorney testified that

the reasonable and necessary attorney’s fees through trial in Randall’s case

amounted to $30,845.00. (R.R. Vol. 3, at p. 210:5-211:13). Walker elected not to

cross-examine Randall’s attorney as to the reasonable and necessary attorney’s

fees. (R.R. Vol. 3, at p. 212:4-10). The jury rendered a verdict in Randall’s favor.

(C.R., at p. 702-707).

D. Jury Verdict for Randall Disregarded

On June 1, 2015, the trial court granted Defendant’s Herbert Walker’s

Motion for Judgment Non Obstante Veredicto (“JNOV”) (C.R., at p. 709-711),

overturning the jury’s verdict for Randall and rendered a take nothing judgment

against Randall for all of his claims against all defendants. (C.R., at p. 739). The

JNOV was filed solely by Herbert, not WWW. (C.R., at p. 709-711). For the sake

of efficiency, the jury questions and the objections raised to each are jointly laid

out along with Randall’s response in the Arguments below.
7
 SUMMARY OF THE ARGUMENT

Issue: Was there sufficient Evidence to Uphold the Jury’s Verdict

Evidence of the offer, acceptance, and terms of the agreement were placed

before the jury. As is common in contested fights over oral contracts, the

supporting evidence is found in the witness testimony, in the actions of the parties,

and in documentation of the actions of the parties. Both parties agree that three

wells were drilled on Randall’s property by Walker and his sons. Both parties

agree that the drilling rig and title were delivered as consideration for the drilling

of those three wells. Acceptance of the terms of the oral agreements can be

imputed to Walker by the jury through Walker’s actions in light of the

circumstances. There is sufficient evidence to uphold the jury’s findings in

Randall’s, Frist’s, and Walker’s testimony. Because there was ample evidence to

uphold the jury’s findings, the trial court’s take nothing judgment must be reversed

and a judgment in line with the jury’s findings rendered.

8
 ARGUMENTS AND AUTHORITIES

A. The No Evidence Standard for Attacking Adverse Findings by a Jury

In reviewing a legal sufficiency challenge, we consider evidence in the light

most favorable to the challenged finding and indulge every reasonable inference

that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).

We credit favorable evidence if a reasonable fact finder could do so, and disregard

contrary evidence unless a reasonable fact finder could not do so. Id. at 827. The

evidence is legally sufficient if it would enable a reasonable and fair-minded

person to reach the finding under review. Id. Evidence is legally insufficient when

(1) there is a complete absence of evidence of a vital fact; (2) the court is barred by

rules of law or 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 the vital fact.

Id. at 810. The fact finder is the sole judge of the credibility of witnesses and the

weight to give their testimony. Id. at 819.The court is not a fact finder and may not

pass on the credibility of the witnesses or substitute its judgment for that of the

trier of fact, even if a different conclusion could be reached on the evidence.

Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998).

Under the above standards, Randall presented more than sufficient evidence

to uphold the jury’s responses to jury questions one through four.
9
B. Question Number One: Existence and Terms of the Agreement

The first jury question was as to the existence of an agreement and the terms

thereto:

Did Terry Randall, Herbert J. Walker d/b/a Walker Water Well, and Walker
Water Well Services, LLC, agree that Herbert J Walker d/b/a Walker Water
Well, and Walker Water Well Services, LLC, would drill three water wells
to a depth of 250 feet using a drilling rig owned by Terry Randall; that
Herbert J. Walker d/b/a Walker Water Well, and Walker Water Well
Services, LLC, would set the tanks and the pumps on those wells; and that
the wells would produce good water; and that Terry Randall would transfer
ownership of his drilling rig to Herbert J. Walker d/b/a Walker Water Well,
and Walker Water Well Services, LLC, as payment for the wells?

(C.R., at p. 702). Question number one included an instruction of what evidence

the Jury could look to for support:

In deciding whether the parties reached an agreement, you may consider
what they said and did in light of the surrounding circumstances, including
any earlier course of dealing. You may not consider the parties’ unexpressed
thoughts or intentions.

Id. The jury returned an answer of “Yes” to question number one. Id.

1. Disregarded for No Supporting Evidence

Herbert’s JNOV challenged question one on the grounds that there was no-

evidence to support the terms contained therein or such terms were contradicted by

Randall. (C.R., at p. 709-10). No attempt was made in the JNOV to demonstrate

where the evidence was lacking. Id. Herbert filed “Herbert Walker’s Post-Verdict

Brief” (“Post-Verdict Brief”), which he argues that Randall failed to prove that
10
there was a “meeting of the minds as to all essential terms of their agreement.”

(C.R., at p. 726). A discussion of which essential terms are missing is not provided

in the Post-Verdict Brief. (C.R., at p. 724-26).

Herbert also argues the jury’s answer to question number one should be

disregarded because a fact was established to the contrary as a matter of law

through a judicial admission made during Randall’s testimony. (C.R., at p. 710).

Herbert’s allegation of the existence of a judicial admission regarding question

number one will be discussed jointly with a similar accusation as to question

number two below.

At trial, Walker objected to the submission of question number one based

upon a lack of factual and legal sufficiency, but made no objection to the inclusion

of any one particular term or the instruction. (R.R. Vol. 4, at p. 5:6-6:15).

2. Offer: Randall Testified of the Terms Negotiated Between the Parties

As described above in paragraph A of the Statement of Facts, Randall

testified that he and Walker discussed and agreed on each and every term found in

question one. See also Appellant’s Table 1 below. Randall and Walker’s testimony

and the exhibits presented were more than a scintilla of evidence of an oral

agreement between the parties and of the terms thereof. Id.

11
Appellant’s Table 1: Testimony and Evidence of Terms in Jury Question One.

Term of Contract listed in Support Citation to Record
Jury Question One
Drill Three Water Wells Randall’s R.R. Vol. 3, at p. 60:8-61:24;
Testimony 115:15-22; and 179:25-180:20
Walker’s R.R. Vol. 3, at p. 170:7-18;
Testimony 181:6-10
Depth of 250 Feet Randall’s R.R. Vol. 3, at p. 119:4-14;
Testimony 121:6-14
Using Drilling Rig Owned by Randall’s R.R. Vol. 3, at p. 60:22-24
Randall Testimony
Walker’s R.R. Vol. 3, at p. 170:16-18;
Testimony and 179:25-180:17
Walker Would Set the Tanks Randall’s R.R. Vol. 3, at p. 120:19-121:5
and Pumps Testimony
Plaintiff’s R.R. Vol. 7, at p. 59, 60, 62,
Exhibit 4 and 66
Wells Would Produce Good Randall’s R.R. Vol. 3, at p. 121:6-14
Water Testimony
Walker’s R.R. Vol. 3, at p. 167:6-8
Testimony
Walker would be Paid by Randall’s R.R. Vol. 3, at p. 60:22-24
Transferring to him the Title to Testimony
Randall’s Drilling Rig
Walker’s R.R. Vol. 3, at p. 179:25-
Testimony 180:20

3. Acceptance: Walker Testified that He Drilled the Wells and
Was Responsible for the Correct Drilling of the Wells

Randall testified that Walker agreed to the terms of the agreement. (R.R.

Vol. 3, at p. 121:18-22). Notwithstanding Randall’s testimony, Walker’s testimony

alone gave the jury plenty of evidence that Walker agreed to the terms of the

12
contract. The Jury heard undisputed testimony from Walker that the following

actions occurred:

1) three water wells were drilled by Walker with Randall’s drilling rig (R.R.

Vol. 3, at p. 170:16-18; and 179:25-180:17);

2) Walker prepared forms to be filed with the State of Texas declaring

Herbert to be the licensed driller of those three wells (R.R. Vol. 3, at p.

170:7-18);

3) Randall’s drilling rig and its title were transferred as consideration for the

drilling of the three wells (R.R. Vol. 3, at p. 179:25-180:20); and

4) Walker and his sons were responsible for the correct drilling of the three

wells on Randall’s property. (R.R. Vol. 3, at p. 181:6-10).

The jury was instructed to rely upon the actions of Walker when deciding if

he agreed to the terms negotiated between Walker and Randall. (C.R., at p. 702).

Randall’s testimony that Walker agreed and then began drilling the wells is alone

legally sufficient evidence when paired with the factual circumstances of the case

to uphold the jury verdict that Walker agreed to the terms of the contract. Regal

Fin. Co., Ltd. v. Tex Star Motors, Inc., 355 S.W.3d 595, 603 (Tex.2012). Walker’s

testimony merely adds layers of support to that testimony which demonstrates that

the terms were accepted by the parties.

13
 4. Part Performance Under an Agreement May Remove Uncertainty and
Establish that a Contract is Enforceable

Herbert’s argument that the contract is unenforceable due to lack of evidence

of a meeting of the minds as to all essential elements is flawed. Rather, Texas law

provides that the partial performance of both parties can render an otherwise

uncertain agreement enforceable.

Whether a particular agreement is an enforceable contract is a question of

law reviewed de novo. Fiduciary Fin. Servs. of Sw. Inc. v. Corilant Fin., L.P., 376

S.W.3d 253, 256 (Tex. App.—Dallas 2012, pet. denied). To be enforceable, a

contract must define its essential terms with sufficient detail to allow a court to

determine the obligations of the parties. “Essential terms” of a contract may

include time of performance, price to be paid, work to be done, service to be

rendered, or property to be transferred. Learners Online, Inc. v. Dallas Indep. Sch.

Dist., 333 S.W.3d 636, 643 (Tex. App.—Dallas 2009, no pet.). When an agreement

leaves essential terms open for future negotiation, it is not binding upon the parties

and merely constitutes an agreement to agree. See Fort Worth Indep. Sch. Dist. v.

City of Fort Worth, 22 S.W.3d 831, 847 (Tex. 2000). However, parties may agree

on some terms sufficient to create a contract, leaving other provisions for later

negotiation. Corilant Fin., L.P., 376 S.W.3d at 256.

The parties must have a “meeting of the minds” and must communicate

14
consent to the terms of the agreement. Sadeghi v. Gang, 270 S.W.3d 773, 776

(Tex. App.--Dallas 2008, no pet.). In determining whether there was a “meeting of

the minds,” and therefore an offer and acceptance, courts use an objective standard,

considering what the parties did and said, not their subjective states of mind.

Komet v. Graves, 40 S.W.3d 596, 601 (Tex. App.-San Antonio 2001, no pet.).

Courts look to the communications between the parties, as well as the acts and

circumstances surrounding the communications, in making this determination. Id.

In an analogous case, a water well driller in Tucker, Texas, disputed that he

agreed to all of the terms of the contract, despite the jury finding as much.

Palestine Water Well Servs., Inc. v. Vance Sand & Rock, Inc., 188 S.W.3d 321,

324 (Tex. App.—Tyler 2006, no pet.). To disprove the meeting of the minds, the

well driller argued that the oral representations regarding the completed water

well’s ability to production of a certain gallon per minute (“GPM”) were guesses,

not guarantees. Id. at 326. The well did not produce at least 200 GPM , despite the

driller’s verbal assurances. Id. at 324. A verdict was rendered against the driller for

breach of contract for his failure to drill the well in accordance with the GPM

requirements of the landowner. Id. The court of appeals held that the testimony of

the landowner and evidence of actions taken by the parties were both legally and

factually sufficient for the jury’s finding of a formation of a contract. Id. at 327.

The partial performance of the parties in this case, including the drilling of
15
the wells and paying of the consideration, establishes the contract as enforceable.

In Crisp Analytical Lab, L.L.C. v. Jakalam Props., Ltd, the Dallas appeals court

referenced the Second Restatement of Contracts to describe why a partially

performed contract may remove any uncertainty as to the enforceability of a

contract. Crisp Analytical Lab, L.L.C., v. Jakalam Props., Ltd, 422 S.W.3d 85, 88

(Tex. App.—Dallas 2014, pet. denied). “Part performance under an agreement may

remove uncertainty and establish that a contract is enforceable as a bargain has

been formed.” Id., citing RESTATEMENT (SECOND) OF CONTRACTS § 34(2)

(1981).

Walker testified as to his partial performance under the contract. Although

he refused to acknowledge a contract existed, the actions he admitted to taking

were a partial performance of the contract testified to by Randall. See Appellant’s

Table 1.

The jury was instructed to weigh Walker’s testimony and actions, the

exhibits, and Randall’s testimony when coming to a conclusion as to the existence

of a contract. Because there was testimony by Randall that the terms were

discussed with Walker, that Walker agreed with the terms of the contract, and

ample evidence that Walker took actions in furtherance of that contract, the Jury

had sufficient evidence to support their response to question number one. The trial

court erred in disregarding the question number one.
16
C. Question Number Two: Breach by Walker

Question number two requested the jury to respond “yes” or “no” to the

question “[d]id Herbert J. Walker d/b/a Walker Water Well, and Walker Water

Well Services, LLC fail to comply with the agreement”, referring to the agreement

found in question number one. (C.R., at p. 703). The jury responded “Yes.” Id.

1. Disregarded for No Supporting Evidence

Herbert’s JNOV argued that there was no evidence to support question

number two or a fact was established to the contrary to it as a matter of law. (C.R.,

at p. 710). No explanation was given by Herbert in the JNOV as to what fact was

established as a matter of law. Id. Herbert also attacked question number two as

being immaterial once the court disregards question number one. Id.

2. Expert Testified the Well Water was Harmful to Humans and Animals
and Full of Sand

As described above in paragraph B of the Statement of Facts, lay and expert

testimony was provided to the jury that the wells in question did not produce good

water and were not drilled to a depth of 250 feet. Walker stated that he could not

challenge their testimony as to the water quality on well number one. No evidence

was provided to contradict the testimony or conclusions of Randall or his expert

Frist.

The evidence laid out above in paragraph B of the Statement of Facts is

17
sufficient to support a jury verdict that Walker did not comply with the terms of the

Contract found in question number one. The trial court erred in disregarding the

question number two.

D. Question Number Three: Damages

Question number three requested damages for the breach of the oral

agreement found in question number two, with the following element of damage

for the jury’s consideration: “The difference in the value of work as agreed to by

the parties and the value of the work performed” (C.R., at p. 704). The jury

responded with the amount “$42,500.00.” Id.

1. Disregarded for No Supporting Evidence

Herbert’s JNOV attacked question number three claiming there was no

evidence to support it or as being immaterial once the court disregards Question

number one. (C.R., at p. 710).

2. $89,596.06 for Worthless Wells

Randall testified that he bargained for and paid $89,596.06, including the

value of the drilling rig and the materials bought, for the three wells. (R.R. Vol. 3,

at p. 60:22-24). Randall testified that the wells drilled for him by Walker were of

no value. (R.R. Vol. 3, at p. 71:6-13).

In Palestine, the well driller contended that there was insufficient evidence

to support the damage award for the breach of contract. Palestine Water Well
18
Servs., Inc., 188 S.W.3d at 324-27. There the evidence presented detailed

$61,289.18 in damages, but only $23,678.08 was awarded. Id. The court noted

that:

Water wells that do not produce water as contractually agreed upon have no
value to the landowner. We hold that as a matter of law, the well had no
value to Vance Sand. Therefore, Vance Sand received no value for the
$61,289.18 that it parted with. The $23,678.08 awarded by the jury on
Vance Sand's contract cause of action was within the range of up to
$61,289.18 that it could have determined “Palestine” was liable for under
this contract. It is well established that in resolving damage issues, a jury's
finding will be upheld if it is within the range of the testimony regarding the
amount of damages incurred.

Id. (internal cites omitted). Because the damages awarded on question number two

are within the range of evidence presented at trial, the jury’s award had sufficient

legal evidence supporting it. The trial court erred in granting the JNOV as to

question number three.

3. Walker’s Attorney Stated in his Closing Arguments that the Market
Value of the Wells was $22,000.00

In the alternative from the arguments raised above, if this court finds there

was not sufficient evidence to uphold the jury’s findings that the three well’s

market value was at least $42,500.00, this court should find the value was at least

$22,000.00. Walker’s attorney instructed the jury in his closing remarks that the

market value of the three wells as bargained for was $22,000.00. (R.R., Vol. 4 at p.

37:22-38:19). This is evidence in the form of an admission against party interest

19
and is legally sufficient evidence for the jury to uphold the jury’s findings up to

$22,000. Id.

Furthermore, Frist testified that a local well driller informed him that he

would have drilled the same wells for $22,000.00. (R.R., Vol. 3 at p. 198:12-

199:1). This is further evidence to support the jury’s findings of damages up to

$22,000.00. If this court finds that there was not enough evidence to support the

jury’s finding of damages in the amount of $42,500.00, Randall requests the court

reverse and remand a judgment consistent with upholding the jury’s findings in

question number three up to $22,000.00.

E. Question Number Four Attorney’s Fees

Question number four requested the jury decide the amount of reasonable

and necessary attorney’s fees for the services of Randall’s attorneys through trial.

(C.R., at p. 704). The jury responded with the amount “$30,845.00.” Id. During the

trial, Walker elected not to cross-examine Randall’s attorney as to the reasonable

and necessary attorney’s fees. (R.R. Vol. 3, at p. 212:4-10).

1. Disregarded for No Supporting Evidence

Herbert’s JNOV argued there was no evidence to support question number 4

or it was immaterial once the court disregarded question number one. (C.R., at p.

710). Herbert added a small amount of description to this attack stating that

“[Randall] failed to provide the evidence required by Texas law to support an
20
award of attorney’s fees.” Id. Herbert’s Post-Verdict Brief offered no further

discussion of the “evidence required by Texas law” referred to in his JNOV. (C.R.,

at p. 724-26).

2. Uncontested, Reasonable Testimony Established
the Attorney’s fees as a Matter of Law

“[W]here the testimony of an interested witness is not contradicted by any

other witness, or attendant circumstances, and the same is clear, direct, positive,

and free from contradiction, inaccuracies, and circumstances tending to cast

suspicion thereon, it is taken as true, as a matter of law.” Ragsdale v. Progressive

Voters League, 801 S.W.2d 880, 882 (Tex. 1990); see Lofton v. Texas Brine Corp.,

777 S.W.2d 384, 386 (Tex. 1989). This is “especially true where the opposing

party has the means and opportunity of disproving the testimony, if it is not true,

and fails to do so.” Ragsdale, 801 S.W.2d at 882.

In determining if attorney’s fees are established as a matter of law, the

reviewing court may look to the following:

a) whether the opposing party had the means and opportunity of

disproving or impeaching the testimony and failed to do so (Cullins v.

Foster, 171 S.W.3d 521, 538-39 (Tex. App.- Houston [14th Dist.] 2005, pet.

denied); Brown v. Bank of Galveston, 930 S.W.2d 140, 145 (Tex. App.-

Houston [14th Dist.] 1996), aff’d, 963 S.W.2d 511 (Tex. 1998),

21
 b) whether the fee is unreasonable in light of the amount involved and

the results obtained (Midland Western Bldg., L.L.C. v. First Serv. Air

Conditioning Contractors, Inc., 300 S.W.3d 738, 739 (Tex. 2009)),

c) whether attorney’s fees billing records were introduced as evidence

(El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761-62 (Tex. 2012); Schlager v.

Clements, 939 S.W.2d 183, 193 (Tex. App.- Houston [14th Dist.] 1996, writ

denied)), or

d) whether the attorney’s work was even necessary (Rosenblatt v.

Freedom Life Ins. Co. of Am., 240 S.W.3d 315, 323 (Tex. App.- Houston

[1st Dist.] 2007)).

Randall’s attorney testified as to the reasonable and necessary attorney’s

fees incurred, including segregating fees for Breach of Contract. (R.R. Vol. 3, at p.

210:5-212:10). These fees were necessary and reasonable in light of the injury

sustained, loss of $89,596.06 for three bad wells, and the results obtained, a jury

verdict for $42,500.00. (R.R. Vol. 7, at p. 68; and C.R., at p. 704). Herbert failed to

make any challenges to the testimony placed before the trier of fact as to the

reasonableness or necessity of those fees. (R.R. Vol. 3, at p. 212:4-10). Because

the testimony of Randall’s attorney meets the requirements laid out in Ragsdale, it

established as a matter of law the reasonableness and necessity of the attorney fees

incurred by Randall.
22
 3. Evidence was put before the jury of at least $30,845.00 in reasonable
attorney fees.

In general, the reasonableness and value of attorney’s fees is a question of

fact for the jury’s determination. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.

1998); Brown, 930 S.W.2d at 145. “The reasonableness of attorney’s fees is

ordinarily left to the factfinder, and a reviewing court may not substitute its

judgment for the jury’s.” Smith v. Patrick W.Y. Yam Trust, 296 S.W.3d 545, 546

(Tex. 2009).

It is Herbert’s burden to show that there is no evidence supporting the Jury’s

award of attorney’s fees. Cale’s Clean Scene Carwash, Inc. v. Hubbard, 76

S.W.3d 784, 786 (Tex. App.- Houston [14th Dist.] 2002, no pet.) This Court must

first examine the record for evidence to support the jury finding while ignoring all

evidence to the contrary. Id.

Even if the evidence put before the jury failed to establish the attorney’s fees

as a matter of law, there is still some evidence to support the jury’s award of

attorney’s fees. The trial court erred in disregarding the question number four when

attorney’s fees were established as a matter of law, and in the alternative, were

upheld by sufficient credible evidence.

F. Request to Find a Judicial Admission: Raised as to Question One and Two

Herbert’s JNOV attacked question number one and two claiming there was a

23
fact established to the contrary as a matter of law, or a judicial admission. (C.R., at

p. 710).

As to question number one, the explanation given in the JNOV for this

argument was “[Randall]’s own testimony constitutes a judicial admission that he

did not an [sic] agreement with [Walker] of the nature asked about in question

one.”Id. Herbert’s Post-Verdict Brief offered no further discussion, explanation of

this argument. (C.R., at p. 724-26).

As to question number two, no explanation was given in the JNOV or Post

Verdict Brief as to what terms were at issue or where the contradiction lay. Id. No

objections were made at the time of submission of jury question one or two based

upon the existence of a judicial admission. (R.R. Vol. 4, at p. 5:6-7:7).

1. Herbert Cannot Rely on a Judicial Admission
that He Failed to Protect

This court need not reach the issue of whether a judicial admission existed in

the testimony at trial as Herbert failed to object to the submission of evidence,

testimony or jury questions because they were contrary to the facts established in a

judicial admission. As such, Herbert cannot rely upon a judicial admission to

retroactively invalidate evidence in support of the jury questions. See Marshall v.

Vise, 767 S.W.2d 699, 700 (Tex. 1989); Hurlbut v. Gulf Atlantic Life Ins. Co., 749

S.W.2d 762, 765 (Tex. 1987).

24
 In Hurlbut v. Gulf Atlantic Life Ins. Co., the trial defendant failed to make an

objection to evidence or testimony during its admission at trial as being contrary to

a judicial admission. Hurlbut, 749 S.W.2d at 765. The first mention of a judicial

admission came in the defendant’s motion for JNOV. Id. The court declared that:

“We need not decide whether plaintiffs' pleadings clearly and unequivocally

concede the existence of facts amounting to a judicial admission of limitations

because defendants did not stand on this alleged admission.” Id. The court further

instructed the defendant that a “party relying on an admission must protect it by

objecting to the introduction of evidence contrary to the admission and by

objecting to the submission of any issue bearing on the fact or facts admitted.” Id.

Because Herbert failed to raise the issue to the trial court at the time of the

submission of the questions, he cannot raise the issue of a judicial admission. The

trial court erred in relying upon judicial admissions to disregard the jury’s findings.

2. Contradictory Testimony is a Quasi-Admission for the Fact Finder to
Resolve

In Herbert’s JNOV, he made an accusation that a fact was established as a

matter of law or a judicial admission occurred contrary to the findings in question

number one.

A judicial admission is “a formal waiver of proof usually found in pleadings

or the stipulations of the parties.” Mendoza v. Fidelity & Guar. Ins. Underwriters,

25
Inc., 606 S.W.2d 692, 694 (Tex.1980). A judicial admission should be

distinguished from a “quasi-admission,” which is a party's testimonial declaration

that is contrary to the party's position. See Id.; TX Far West, Ltd. v. Tex. Invs.

Mgmt., 127 S.W.3d 295, 308 (Tex. App.—Austin 2004, no pet.). Quasi-admissions

are “merely some evidence, and they are not conclusive upon the admitter.”

Mendoza, 606 S.W.2d at 694, citing Harris Cnty. v. Hall, 172 S.W.2d 691, 694-95

(Tex. 1943). The trier of fact must decide what weight to give quasi-admissions.

Id.

A party’s testimonial quasi-admission will preclude recovery if it meets the

requirements set out in Griffin v. Superior Insurance Co., 338 S.W.2d 415, 419

(Tex.1960) and United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224,

229 (Tex.Civ.App.—San Antonio 1951, writ ref’d n.r.e.).

Herbert made no attempt to reveal the judicial admission, or “fact

established contrary as a matter of law” or overcome the “hypothesis of a mere

mistake or slip of the tongue.” Mendoza, 606 S.W.2d at 694. Herbert failed to

uphold his burden before the trial court to prove that a fact was established as a

matter of law or that a judicial admission occurred. Without any guidance from

Herbert, the trial court erred in disregarding question number one and two based

upon a judicial admission or fact established as a matter of law.

26
G. Walker Water Wells did not file any Post-trial Motions.

WWW did not file any challenges to the jury findings. (C.R., at p. 709 and

724). The trial court’s judgment states that the “Defendants moved” for the JNOV

and that the “Defendants’ motion should be granted.” The Judgment then rendered

was in favor of all Defendants therein, both Herbert and WWW. (C.R., at p. 739).

The trial court erred in issuing a take nothing judgment as to all parties and

all claims as WWW made no objections to the jury responses and filed no motions

to which the trial court could grant. The trial court’s issuance of a take noting

judgment granted relief to a party that neither request it nor upheld their burden of

proving that they deserved it.

CONCLUSION

There was more than sufficient evidence presented in the trial to uphold the

jury’s response to questions one through four. None of these questions were

immaterial to the claim before the jury. Herbert failed to show that a judicial

admission occurred or protect that judicial admission by using it to object to the

submission of evidence or jury questions. Since the jury returned a clear verdict,

further fact finding is unnecessary. Appellant asks that this court reverse the trial

court’s judgment and render a final judgment for Appellant in accordance with the

jury’s findings. (C.R. at p. 699-707). Miller v. Bock Laundry Machine Co., 568

S.W.2d 648, 652 (Tex. 1977)
27
 PRAYER

Appellant, Terry Randall, prays that this Court grant his Appeal and reverse

the Trial Court’s Judgment and render a judgment in accordance with the jury’s

findings in Appellant’s favor of $42,500.00 in damages; attorney’s fees of

$30,845.00; costs of court and appeal; pre-trial interest, and post-judgment interest

as provided by law and for any other award Appellant is due in equity.

Respectfully submitted,

THE WELSCHER LAW FIRM

/s/ S. Cory Sells
S. Cory Sells
State Bar No. 24075525
Craig Welscher
State Bar No. 21167200
The Welscher Law Firm, P.C.
1111 North Loop West, Suite 702
Houston, Texas 77008
(713) 862-0800 – Telephone
(713) 862-4003 – Facsimile
Email: csells@welscherlaw.com
Attorneys for Appellant

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing instrument is in compliance with the word

count limit of TRAP 9.4(i)(2)(B) of 15,000 words as it contains 7,295 words.

/s/ S. Cory Sells
S. Cory Sells
28
 CERTIFICATE OF SUPPORT

I certify that I have reviewed the record and brief and have concluded that

every factual statement made in the brief is supported by competent evidence

included in the appendix or record.

/s/ S. Cory Sells
S. Cory Sells

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing

instrument was forwarded to all known counsel of record in the manner required

by Texas Rule of Appellate Procedure 9.5, on this the 29th day of September, 2015.

Via Electronic Service
Alex Metcalf
807 Pecan Street
Bastrop, Texas 78602
/s/ S. Cory Sells
S. Cory Sells

29
 APPENDIX

1. Clerk’s Record

a. Charge of the Court
b. Defendant’s Motion For Judgment Non Obstante Veredicto

c. Defendant, Herbert Walker’s Post Verdict Brief
d. Judgment

2. Reporter’s Record

a. Volume 3

i. Excerpts of Examination of Terry Randall

ii. Excerpts of Examination of Herbert Walker

iii. Excerpts of Examination of Tom Frist

iv. Excerpts of Examination of S. Cory Sells

b. Volume 4

i. Objections By Mr. Metcalf, Attorney for Appellees on Submission
of Jury Question One and Two

ii. Excerpts of Closing Statements by Mr. Metcalf

c. Volume 7

i. Plaintiffs’ Exhibit 2

ii. Plaintiffs’ Exhibit 4

iii. Plaintiffs’ Exhibit 8

a
 T HE W ELSCHER LAW FIRM
A P ROFESSIONAL C ORPORATION
A T T O R N EYS A T L A W
i

CRAIG WELSCHER 1111 North Loop West, Suite 702 Tel: (713) 862-0800
SHAREHOLDER Houston, Texas 77008 Fax: (713) 862-4003

September 29, 2015

Via ProDoc Electronic Filing
Jeffrey D. Kyle, Clerk
3rd Court of Appeals
P.O. Box 12547
Austin, Texas 78711-2547

Re: Court of Appeals Number:03-15-00317-CV
Trial Court Case Number: 423-2441;Terry Randall v. Herbert J. Walker d/b/a
Walker Water Well; and Walker Water Well Services, LLC

Honorable Clerk:
Enclosed please find following:
• Appellant Brief

Should you have any questions regarding the enclosed, please contact our office. Thank you
for your assistance in this matter.

Very truly yours,

THE WELSCHER LAW FIRM

Connie Gilbert /e/
Connie Gilbert,
Paralegal to Craig Welscher
service@welscherlaw.com

CCG//pld
Enclosures: As Stated
cc:
Via Facsimile: (512) 303-6766 and/or
Via Electronic Mail: alex@lostpineslawyer.com
Alex Metcalf
Attorney at law
807 Pecan Street
Bastrop, Texas 78602