Adams v. H & H Meat Products Inc.

• Decision Date: 01 March 2001
• Docket Number: No. 13-97-924-CV,13-97-924-CV
• Citation: 41 S.W.3d 762
• Parties: (Tex.App.-Corpus Christi 2001) NORWICK ADAMS, III, A/K/A WICK ADAMS, Appellant, v. H & H MEAT PRODUCTS, INC., Appellee.
• Court: Texas Court of Appeals

Page 762

41 S.W.3d 762 (Tex.App.-Corpus Christi 2001)

NORWICK ADAMS, III, A/K/A WICK ADAMS, Appellant, v. H & H MEAT PRODUCTS, INC., Appellee.

No. 13-97-924-CV

Court of Appeals of Texas, Corpus Christi.

March 1, 2001

On appeal from the 332nd District Court of Hidalgo County, Texas. [Copyrighted Material Omitted]

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Before Justices, Dorsey, Hinojosa, and Rodriguez

OPINION

Hinojosa, Justice.

Appellant, Norwick Adams, III, a/k/a Wick Adams ("Adams"), appeals from the trial court's judgment rendered in favor of appellee, H & H Meat Products, Inc. ("H&H"). By seven issues, Adams contends: (1) the trial court erred by rendering judgment against him for (a) contract of sale or sworn account, (b) breach of contract of guarantee, and (c) promissory estoppel, fraud, and quantum meruit; (2) the trial court erred by awarding H&H damages, prejudgment interest, and attorney's fees; and (3) the trial court erred by not making findings of fact and conclusions of law. We affirm.

A. Background

Adams is employed by and is the director general and a minority shareholder of Desarrollos W. De Alimentos Del Norte S.A. de C.V. ("Whataburger Mexico"). Desarrollos holds the Whataburger franchise for Monterrey and Guadalajara. H&H is a company that sells meat products to Whataburger franchises in the United States. Sometime in 1991 or 1992, Liborio Hinojosa ("Hinojosa"), the president and CEO of H&H, met with Adams to set up a procedure so that meat products could be sent to Mexico for Whataburger Mexico.

Adams or an associate ordered meat products from H&H by fax or telephone. Adams instructed H&H to ship the ordered meat products to S.R. Forwarding, a forwarding agent in Laredo, Texas. Adams also instructed H&H to invoice the meat products in the name of Proveedora de Alimentos Contratados, S.A. de C.V. ("PAC") because PAC had a permit to import meat products into Mexico, and Adams did not. PAC would then sell the meat to Whataburger Mexico.

The case stems from three unpaid shipments of meat that were delivered by H&H to S.R. Forwarding pursuant to Adams' instructions. The dates of these shipments are August 3, 1994 (in the amount of $7,172.70), August 8, 1994 (in the amount of $6,614.93), and August 16, 1994 (in the amount of $2,232.00). All three shipments were delivered to Whataburger Mexico.

When H&H asked PAC why the three shipments had not been paid, PAC said it had not paid H&H because Adams had not paid PAC. H&H then sought payment directly from Adams because Adams had told H&H that he would be personally responsible for meat purchased by Whataburger Mexico. Adams refused to pay the balance owed to H&H.¹

H&H sued Adams on a sworn account and for breach of contract or promissory estoppel, common law fraud, and quantum meruit. After a bench trial, the court found in favor of H&H and rendered judgment against Adams for $12,945.80, prejudgment interest at the rate of twelve percent per annum ($3,495.42), attorneys' fees in the amount of $11,000.00, and post-judgment interest at the rate of twelve percent per annum.

B. Findings of Fact and Conclusions of Law

In his seventh issue, Adams contends the trial court erred by failing to make findings of fact and conclusions of law. The trial court signed the judgment on October 3, 1997. Adams timely requested findings of fact and conclusions of law on October 17, 1997, and filed a timely notice of past-due findings on November 12, 1997. See Tex. R. Civ. P. 296, 297. The trial court did not file the requested findings of fact and conclusions of law.

Rules 296 and 297 impose a mandatory duty on the trial court to file findings of fact and conclusions of law within thirty days of the date of judgment at the request of either party. Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989). The trial court erred by failing to make appropriate findings of fact and conclusions of law.

We ordered the present appeal abated and directed the trial judge to make findings of fact and conclusions of law and to send them to this Court. The trial court has done so. Accordingly, Adams' seventh issue is now moot.

C. H&H's Motion to Dismiss for Want of Jurisdiction

On February 17, 1998, H&H filed a motion to dismiss this appeal for want of jurisdiction because Adams did not perfect his appeal within thirty days from the date the judgment was signed. See Tex. R. App. P. 26.1. The judgment was signed on October 3, 1997, and Adams filed his notice of appeal on December 10, 1997.

H&H contends that Adams did not timely file proper requests for findings of fact and conclusions of law which would have extended the time to file a notice of appeal to ninety days from the date the judgment was signed. See Tex. R. App. P. 26.1(a)(4). After reviewing the record, we find that Adams timely filed a request for findings of fact and conclusions of law, thus extending the time for filing his notice of appeal. We deny H&H's motion to dismiss this appeal for want of jurisdiction.

D. Standard of Review

Findings of fact in a case tried to the court have the same force and dignity as a jury's verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); Simmons v. Compania Financiera Libano, S.A., 830 S.W.2d 789, 791 (Tex. App.--Houston [1st Dist.] 1992, writ denied). We review the court's findings of fact by the same standards used to review the sufficiency of the evidence to support a jury's findings. Winters v. Arm Refining Co., Inc., 830 S.W.2d 737, 739 (Tex. App.--Corpus Christi 1992, writ denied). The judgment of the trial court will not be set aside if there is any evidence of a probative nature to support it, and this Court may not substitute its findings of fact for those of the trial court if there is any evidence in the record to sustain the trial court's findings. Ray v. Farmers' State Bank of Hart, 576 S.W.2d 607 (Tex. 1979); Humphrey v. Camelot Retirement Comm., 893 S.W.2d 55, 58 (Tex. App.--Corpus Christi 1994, no writ). However, while the factual findings of the trial court in the instant case are binding upon this Court, its conclusions of law are not likewise binding, and this Court is free to make its own legal conclusions. Muller v. Nelson Sherrod & Carter, 563 S.W.2d 697, 701 (Tex. Civ. App.--Fort Worth 1978, no writ). Conclusions of law are reviewed de novo as a question of law and will be upheld if the judgment can be sustained on any legal theory supported by the evidence. Circle C Child Dev. Ctr., Inc. v. Travis Cent Appraisal Dist., 981 S.W.2d 483, 485 (Tex. App.--Austin 1998, no pet.). A trial court's conclusions of law may not be challenged for factual sufficiency. Id. Conclusions of law will not be reversed unless they are erroneous as a matter of law. Stable Energy, L.P. v. Newberry, 999 S.W.2d 538, 547 (Tex. App.--Austin 1999, pet. denied); Hofland v. Fireman's Fund Ins. Co., 907 S.W.2d 597, 599 (Tex. App.--Corpus Christi 1995, no writ). Incorrect conclusions of law do not require reversal if the controlling findings of fact support a correct legal theory. Stable Energy, 999 S.W.2d at 547.

Texas law requires that an effort be made to reconcile conflicts in findings of fact. First Fin. Dev. Corp. v. Hughston, 797 S.W.2d 286, 294 (Tex. App.--Corpus Christi 1990, writ denied). This same rule has been applied to conflicts between findings of fact and conclusions of law. Hartford Ins. Co. v. Jimenez, 814 S.W.2d 551 (Tex. App.--Houston [1st Dist.] 1991, no writ). This same reasoning should be applied in reconciling conclusions of law and the judgment when two possible interpretations exist, the interpretation should be chosen that will harmonize the judgment with the findings of fact and conclusions of law upon which it is based. Grossnickle v. Grossnickle, 935 S.W.2d 830, 841 (Tex. App.--Texarkana 1996, writ denied).

When we review a "no evidence" or legal sufficiency of the evidence issue, we must consider all of the record evidence in a light most favorable to the party in whose favor the verdict has been rendered, and indulge in that party's favor every reasonable inference deducible from the evidence. Formosa Plastics v. Presidio Eng'r, 960 S.W.2d 41, 48 (Tex. 1998). When both legal and factual sufficiency issues are raised, we must first review the legal sufficiency to determine if there is any evidence of probative value to support the judge's findings. See Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981). The findings of fact must be upheld if there is more than a scintilla of evidence in support thereof. Stedman v. Georgetown Sav. & Loan Ass'n, 595 S.W.2d 486, 488 (Tex. 1979). There is more than a scintilla when the evidence creates more than a mere surmise or suspicion of its existence. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

If the findings are supported by legally sufficient evidence, we must then review the factual sufficiency of the evidence. When we review an "insufficient evidence" or factual sufficiency of the evidence issue, we consider, weigh and examine all of the evidence which supports or undermines the finding. Plas-Tex, Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We set aside the verdict only if it is so against the great weight and preponderance of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). Because the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony, we may not substitute our judgment for that of the fact finder's conclusions. Id. at 634; Benoit v. Wilson, 239 S.W.2d 792, 796 (Tex. 1951). Where there is conflicting evidence, the trial court's determination on such matters is generally regarded as conclusive. Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508, 512 (1947).

E. Breach of Contract

In his second...