Buxani v. Nussbaum

• Decision Date: 19 February 1997
• Docket Number: No. 04-96-00082-CV,04-96-00082-CV
• Citation: 940 S.W.2d 350
• Parties: Jimmy BUXANI and Sheila Buxani, d/b/a Jewelry International, Appellants, v. Gregg L. NUSSBAUM, d/b/a The Master's Builders, Appellee.
• Court: Texas Court of Appeals

Page 350

940 S.W.2d 350

Jimmy BUXANI and Sheila Buxani, d/b/a Jewelry International Appellants, v. Gregg L. NUSSBAUM, d/b/a The Master's Builders, Appellee.

No. 04-96-00082-CV.

Court of Appeals of Texas San Antonio.

Feb. 19, 1997.

Jeffrey J. Czar, Laredo, for appellants.

Alejandro E. Villarreal, III, Baldemar Garcia, Jr., Person, Whitworth, Ramos, Borchers & Morales, Laredo, for appellee.

Before RICKHOFF, GREEN and DUNCAN, JJ.

OPINION

GREEN, Justice.

This is an appeal from a county court at law judgment awarding Greg Nussbaum, doing business as The Master's Builders, $22,529 plus attorneys fees on an oral contract. On appeal, Jimmy and Sheila Buxani, doing business as Jewelry International, assert two points of error. In their first point of error, the Buxanis claim that the trial court's finding that an oral contract existed was based on insufficient evidence since mutual assent was not present. In their second point of error, they contend that there was insufficient evidence for the court to find that the Buxanis breached the written contracts.

Facts

On March 2, 1994 and on April 28, 1994, the Buxanis entered into written agreements with Nussbaum for the purpose of remodeling and expanding their jewelry store. Both contracts contained a clause reading, "Any alteration or deviation from above specifications involving extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate."

During the course of the remodeling of the store, the Buxanis orally requested extra work from Nussbaum and his subcontractors. The items that the Buxanis requested included suspended ceilings, a "bunch of extras" from the electrician, one-way mirrors with bronze tint instead of aluminum tint, painting of items not included in the original written contracts, additional brick work, and the purchase and installation of hand driers. Nussbaum performed the requested additional work. In August of 1994, Nussbaum presented the Buxanis with an itemized statement of the additional work performed; the Buxanis, however, refused to tender full payment. Consequently, Nussbaum ceased performance under the written contracts.

Nussbaum sued the Buxanis for breach of contract seeking the amount due for the work performed at the Buxanis' oral request. The Buxanis then countersued for breach of the written contracts. After a bench trial, the county court at law judge found that an oral agreement existed for the additional work and that the Buxanis breached the written contracts by not tendering payment, thereby excusing Nussbaum's further performance. The judge denied relief on the Buxanis' counterclaim. The court's judgment awarded Nussbaum $22,529 plus attorneys fees in the amount of $2,500. The Buxanis appealed to this Court asserting two insufficiency of evidence points.

Discussion

In both of their points of error, the Buxanis challenge specific findings of fact based on the sufficiency of the evidence. Their first point of error attacks the court's fifth finding of fact in which the court found that an oral agreement existed. ¹ The Buxanis allege that there was insufficient evidence to find a contract because there was no mutual assent. Their second point of error contests finding of fact number 15, in which the court found that the Buxanis' refusal to tender payment under the written contracts excused Nussbaum's performance on the written contracts. ² The Buxanis contend that they were legally excused from paying. They claim that the extra work orders did not constitute an additional, oral contract since mutual assent was lacking; they argue that the change orders were instead alterations of the original written contracts. Because the oral requests were alterations or deviations from the written contracts and not additional contracts, they assert that Nussbaum breached the written contracts by not putting the change orders in writing as required by the written contracts. They allege that Nussbaum's breach of the contract provision excused them from paying Nussbaum. Since both of the Buxanis' arguments are dependent on an alleged lack of mutual assent and lack of an oral contract, we address both points of error together.

The standard of review for reviewing the factual sufficiency of a trial court's findings of fact is the same as the standard for reviewing jury findings. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996). In reviewing the factual sufficiency of the evidence, an appellate court considers all of the evidence in the record. Id.; Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980). Reversal is only required where the finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); see Ortiz, 917 S.W.2d at 772.

Parties form a binding contract when the following elements are present: (1) an offer, (2) an acceptance in strict compliance with the terms of the offer, (3) a meeting of the minds, (4) each party's consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding. McCulley Fine Arts Gallery, Inc. v. "X" Partners, 860 S.W.2d 473, 477 (Tex.App.--El Paso 1993, no writ); see Smith v. Renz, 840 S.W.2d 702, 704 (Tex.App.--Corpus Christi 1992, writ denied). The Buxanis only contest element (3). When only the meeting of the minds is disputed, the existence of a contract is a question of fact. Hallmark v. Hand, 885 S.W.2d 471, 476 (Tex.App.--El Paso 1994, writ denied). In a contract implied in fact, which is the same as an express contract except for the manner of proof, the element of mutual assent can be inferred from the circumstances of the transaction. Haws & Garrett Gen. Contractors, Inc. v. Gorbett Bros. Welding Co., 480 S.W.2d 607, 609 (Tex.1972); see University Nat'l Bank v. Ernst & Whinney, 773 S.W.2d 707, 710 (Tex.App.--San Antonio 1989, no writ). Mutual assent can arise from the parties' acts and...