Partners in Building, LP v. Darleen Eure

Affirmed and Memorandum Opinion filed March 29, 2011. In The Fourteenth Court of Appeals NO. 14-09-00962-CV Partners in Building, L.P., Appellant v. Darleen Eure, Appellee On Appeal from the County Civil Court at Law No. 4 Harris County, Texas Trial Court Cause No. 918,729 MEMORANDUM OPINION This appeal arises out of a dispute between a homebuilder and its customer over the existence of a settlement agreement. After finding the formation and breach of an enforceable contract, the trial court rendered judgment in favor of the customer, awarding damages and attorney’s fees. We affirm. Factual and Procedural Background Appellee Darleen Eure purchased a newly constructed home from appellant Partners in Building, L.P. in November 2001. A few months later, Eure met with Matt Norris, an area manager for Partners in Building, to discuss her discovery that Partners in Building was constructing a new home in Eure’s neighborhood that had the same floor plan as Eure’s home. Eure asserted that the new construction violated an assurance by Partners in Building that the home she purchased would be unique. The manager orally offered Eure $12,000 to resolve the matter. Eure rejected this offer. By letter dated June 20, 2002, Partners in Building notified Eure that it was invoking alternative dispute resolution in accordance with the parties’ sales agreement by submitting the matter to mediation. The letter, in relevant part, contained the following statement: Meanwhile, our offer to pay you $12,000 to resolve this matter remains open for the time being and we are still willing to pay that sum of money as an indication of our regret that you believe you have been mistreated by our Company. Over the course of a year, the parties corresponded many times about scheduling mediation and selecting a mediator. In a letter dated August 7, 2003 (hereinafter the “2003 Letter”), Partners in Building sought more information from Eure necessary for scheduling mediation. The 2003 Letter contained the following pertinent statements: [Partners in Building’s] $12,000 offer continues to be “on the table” for the time being, but as I am sure you can understand, it is withdrawn once we commit to the additional expense of mediation in this matter. Given the totality of circumstances, including the costs each of us would have to bear if we proceed further, I would ask that you reconsider [Partners in Building’s] offer and seriously consider accepting it. Eure’s response via a letter, dated December 1, 2003, reflected that Eure had not received the 2003 Letter. Partners in Building responded and provided a copy of the 2003 Letter. In its response, Partners in Building sought additional information from Eure necessary for scheduling mediation. It is undisputed that neither party paid any money to retain a mediator or to mediate the dispute; as of trial, the parties had not attended mediation, arbitration, or participated in any other form of alternative dispute resolution. The parties exchanged no other written communications until Eure’s lawyer Mark Roberts sent a letter dated August 10, 2004 (hereinafter the “2004 Letter”) to Gerald Birnberg, attorney for Partners in Building, to notify Partners in Building of Eure’s acceptance of the cash settlement offer of $12,000 (hereinafter the “Settlement Offer”), as provided below: As per our prior discussions and your prior correspondence, my client has authorized me to acceptance [sic] your client’s offer of settlement in the amount of twelve thousand dollars ($12,000). In full reliance and acceptance of your client’s settlement agreement, my client shall cease any and all efforts to effectuate her legal remedies via mediation and/or further litigation. In addition and as discussed, Ms. Eure’s acceptance hereby constitutes a waiver of any and all causes of action regarding the occurrence that gives rise to this dispute. Accordingly, this correspondence represents my client[’s] full acceptance of your client[’s] offer and in reliance waives any and all cause[s] of action that she dose [sic] and/or may have as [sic] against your client. Please forward the requisite documentation relevant to the disbursement of the settlement funds and any additional documentation you wish us to review and execute. Many times between 2005 and 2007, Eure, through Roberts, communicated with Partners in Building through letters to Birnberg and Norris requesting disbursement of the funds or settlement documents. As of the trial setting, in 2009, Eure had yet to receive the settlement funds. It is undisputed that the Settlement Offer was not withdrawn at any time. In a letter dated April 28, 2008, Eure notified Birnberg of Eure’s recent retention of new counsel and reaffirmed Eure’s acceptance of the Settlement Offer. In his response, Birnberg indicated that he no longer represented Partners in Building in the matter and had not represented the company for several years. Birnberg claimed not to have received the 2004 Letter and subsequent letters from Roberts in 2005. According to Birnberg, even if he had received the 2004 Letter, Eure did not accept the Settlement Offer within a reasonable time. Birnberg, however, stated that new counsel for Partners in Building may have a different perspective. In 2008, Eure brought suit against Partners in Building, asserting the formation of a settlement agreement and seeking $12,000 for its breach. Partners in Building filed a counterclaim. Following a bench trial on the merits, the trial court found the parties had formed an agreement and that Partners in Building breached the agreement. The trial court rendered a final judgment in favor of Eure, awarding $12,000 in damages and $10,895.75 in attorney’s fees as well as post-judgment interest and costs. The trial court denied Partners in Building’s counterclaim. Partners in Building now appeals the trial court’s judgment. Issues and Standards of Review Partners in Building challenges the legal and factual sufficiency of the evidence supporting the trial court’s judgment, claiming in its first issue that no contract existed because the Settlement Offer lapsed when Eure did not accept it for more than one year. In a second issue, Partners in Building asserts that Eure’s repeated agreement to continue with mediation served as a rejection of the Settlement Offer because Eure’s acceptance did not mirror the terms of the offer. When conducting a legal-sufficiency review, we consider the 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, 823 (Tex.2005). We must credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. See id. at 827. We must determine whether the evidence at trial would enable a reasonable and fair-minded factfinder to find the facts at issue. See id. The factfinder is the only judge of witness credibility and the weight to give to testimony. See id. at 819. Because findings of fact in a bench trial have the same force and dignity as a jury verdict, we review them for legal sufficiency of the evidence under the same standards we apply in reviewing the jury’s findings. See Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). When reviewing a challenge to the factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). After considering and weighing all the evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615–16 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). We may not substitute our own judgment for that of the trier of fact, even if we would reach a different answer on the evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. Pascouet, 61 S.W.3d at 616. Partners in Building generally challenges the following findings of fact: 10. A time period of 13.5 months passed between the written offer of settlement and the advice that the offer continues to be on the table. During this time, Eure did not accept the offer and [Partners in Building] did not withdraw the offer or otherwise indicate that it expired as a result of time. 11. No document indicated that time was of the essence in this matter. 12. Mediation was never scheduled. 13. [Partners in Building] did not “commit the additional expense of mediation in this matter,” thereby withdrawing the offer under the condition presented by Birnberg on August 7, 2003. 14. On August 10, 2004, Mark Roberts, counsel for Eure, advised Gerald Birnberg, Counsel for [Partners in Building], in writing, that Eure accepted the offer of settlement in the amount of $12,000. 15. A period of time of 12 months passed between the reaffirmation of the offer on August 7, 2003 and the acceptance of August 10, 2004. 16. [Partners in Building] did not revoke the offer prior to August 10, 2004. 17. In response to the acceptance of August 10, 2004, [Partners in Building] sent no written demurrer or written notice that the offer had expired prior to the written acceptance dated August 10, 2004. 18. On February 3, 2005, counsel for Eure wrote Counsel for [Partners in Building] regarding “disbursement of the agreed upon settlement.” In response, [Partners in Building] sent no written demurrer or written notice that the offer had expired. 19. On July 13, 2005, counsel for Eure wrote Counsel for [Partners in Building] regarding the fact that he had not “received funds regarding this matter.” [Partners in Building] sent no written demurrer or written notice that the offer had expired. 20. On February 23, 2005, billing records of Gerald Birnberg indicate a telephone conference with Matt Norris of [Partners in Building] regarding a telephone message from Eure requesting settlement. In response, [Partners in Building] sent no written demurrer or written notice that the offer had expired. 21. On September 19, 2007, counsel for Eure wrote Matt Norris of [Partners in Building] regarding the $12,000. In response, [Partners in Building] sent no written demurrer or written notice that the offer had expired. 22. On November 26, 2007, counsel for Eure wrote Matt Norris of [Partners in Building] regarding the $12,000. In response, [Partners in Building] sent no written demurrer or written notice that the offer had expired. 23. On January 23, 2008, counsel for Eure wrote Matt Norris of [Partners in Building] regarding the $12,000. In response, [Partners in Building] sent no written demurrer or written notice that the offer had expired. . . . 25. Subsequent to Birnberg’s conversations with Norris regarding the Eure matter, [Partners in Building] sent no written demurrer or written notice that the offer had expired. 26. On April 28, 2008, Larry Champion, new counsel for Eure wrote to Gerald Birnberg advising and re-affirming “acceptance of the $12,000 in full and complete settlement of this matter.” 27. Subsequently, on May 13, 2008, Birnberg wrote to Champion and first raised the defense that the offer had expired due to passage of time. Notwithstanding, Birnberg expressly advised that “I no longer represent [PIB] on [the Eure] matter,” and that “PIB’s response to your April 28, 2008 letter is entirely up to its new lawyer and I do not purport to speak for them.” . . . 31. [Partners in Building] breached the contract made the basis of this lawsuit. 32. On May 13, 2008, Eure filed suit to enforce the settlement agreement. 33. Eure incurred attorney fees in the amount of $9,150.00 34. Eure incurred costs in the amount of $1,745.75. Analysis Is the evidence sufficient to support the trial court’s judgment? The parties do not dispute that the 2003 Letter evinces a cash offer of settlement for $12,000. The 2003 Letter provides in relevant part, “[Partners in Building’s] $12,000 offer continues to be ‘on the table’ for the time being, but, as I am sure you can understand, it is withdrawn once we commit to the additional expense of mediation in this matter.”[1] In its communication in December 2003, Partners in Building attached this same 2003 Letter in its response to Eure. Partners in Building’s last offer to settle, as evidenced by the terms of the 2003 Letter, remained open until Partners in Building incurred mediation expenses.[2] When, as in this case, the terms of an offer prescribe the time for accepting the offer, then those terms ordinarily must be satisfied to create a contract. See Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995); Town of Lindsay v. Cook County Elec. Co-op. Ass’n, 502 S.W.2d 117, 118 (Tex. 1973). Until an offer is accepted, a party retains the power to revoke the offer. See Embree, Inc. v. Sw. Bell Media, Inc., 772 S.W.2d 209, 210 (Tex. App.—Dallas 1989, no pet.). It is undisputed that Partners in Building did not revoke its offer at any time. It is also undisputed that the parties did not schedule mediation, retain a mediator, attend mediation, or participate in any form of alternative dispute resolution. Therefore, neither party committed “to the additional expense of mediation,” as prescribed in the Settlement Offer. Although Partners in Building points to testimony that it incurred mediation costs by “calling around, finding mediators, asking other lawyers for suggestions for mediators,” the trial court was the sole judge of the credibility of the witnesses and the weight to be given to their testimony. See Pascouet, 61 S.W.3d at 615–16. By its judgment, the trial court implicitly rejected this testimony, finding it to be discredited or finding it to be insufficient to qualify as committing “to the additional expense of mediation,” as set forth in the 2003 Letter. Eure accepted the Settlement Offer in the 2004 Letter.[3] According to Partners in Building, the Settlement Offer lapsed before August 10, 2004, because Eure did not accept any of Partners in Building’s cash settlement offers within a reasonable time.[4] Although Partners in Building claims the trial court did not enter a finding as to the reasonable time for acceptance, the trial court need not have determined a reasonable time period for acceptance because the terms of the offer defined the duration available for acceptance. See Padilla, 907 S.W.2d at 460; Town of Lindsay, 502 S.W.2d at 118. In this case, the very terms of the Settlement Offer prescribed that the offer would remain open until Partners in Building committed “to the additional expense of mediation.” The trial court found that Partners in Building did not commit to such additional expense, and legally and factually sufficient evidence supports this finding. Partners in Building also claims that Eure’s 2004 Letter of acceptance was not supported by proof of delivery. The record contains evidence that Roberts sent the 2004 Letter to Birnberg, counsel for Partners in Building, by first class mail and fax. Roberts testified that he also attempted to communicate with Birnberg by telephone before and after sending the 2004 Letter. Birnberg testified that his files did not reflect that he had received the 2004 Letter. Birnberg’s billing records reflect that he did not represent Partners in Building on this matter in 2004; Birnberg testified that he billed nothing to Partners in Building in 2004. Moreover, in a letter dated May 13, 2008, written by Birnberg to Eure’s new counsel, Larry Champion, Birnberg indicated that he had not represented Partners in Building generally in several years. Although Birnberg testified that he did not receive any phone communications regarding Eure’s acceptance; his billing records, as admitted into evidence, reflect an entry on February 23, 2005, indicating that he billed .25 hours for a telephone conference with Norris regarding a telephone message from Eure requesting settlement. Although Birnberg’s testimony creates a fact issue regarding receipt of the 2004 Letter, the evidence is legally and factually sufficient to support the trial court’s determination that Eure proved delivery. See Pascouet, 61 S.W.3d at 615–16. Partners in Building claims, in its second issue, that Eure’s breach-of-contract claim is barred because Eure’s acceptance did not mirror the terms of the Settlement Offer. According to Partners in Building, “[Eure] repeatedly accepted the mediation offer by [Partners in Building] but never proved acceptance of the $12,000 alternative.” We construe this argument to equate Eure’s agreement to proceed with mediation, as evidenced by correspondence between the parties preceding Eure’s 2004 acceptance, as a refusal and rejection of the Settlement Offer. Although, Eure had indicated a desire to proceed with mediation, the parties did not schedule mediation, retain a mediator, or incur expenses associated with mediation; therefore, the parties had not incurred or expended funds towards mediation, and the offer, as reflected in the 2003 Letter, remained open. Eure accepted the Settlement Offer in the 2004 Letter. To the extent that Partners in Building claims Eure did not prove that Partners in Building breached any agreement, the record reflects that as of trial in 2009, Partners in Building had not paid the settlement funds. Acceptance was a fact issue to be resolved by the trier of fact. Although Eure presented evidence that she accepted the Settlement Offer via the 2004 Letter, Birnberg testified that his file did not reflect receipt of that communication. The trial court resolved this issue in favor of Eure.[5] When, as in this case, there is evidence of probative force to support the trial court’s findings, a reviewing court must uphold the finding and overrule the legal-sufficiency challenge. See Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003) (per curiam). A decision based upon a factual-sufficiency challenge can be set aside “only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” See Cain, 709 S.W.2d at 176. We conclude the evidence is legally and factually sufficient to support the trial court’s judgment. Finding no merit in Partners in Building’s first and second issues, we overrule them. The trial court’s judgment is affirmed. /s/ Kem Thompson Frost Justice Panel consists of Justices Anderson, Frost, and Brown. [1] Emphasis added. [2] As reflected in the trial court’s findings, none of the documents admitted at trial expressly state that time is of the essence. For “time to be of essence” in a contract, the contract must expressly make time of the essence or there must be something in the nature or purpose of the contract and circumstances surrounding it making it apparent that the parties intended that time be of the essence. Kennedy Ship & Repair, L.P. v. Pham, 210 S.W.3d 11, 19 (Tex. App.—Houston [14th Dist.] 2006, no writ). Although Partners in Building refers to communications from Norris, expressing a desire to resolve the matter “promptly” and “expeditiously” and “as soon as possible,” these express terms were not part of the cash settlement offer contained in the 2003 Letter. Moreover, Partners in Building, by its own conduct, in extending a written cash settlement offer first in June 2002 and again in August 2003, has not shown that it intended for time to be of the essence. Unless a contract expressly makes time of the essence, the issue is generally a fact question for the trier of fact, and in this case, the trial judge found in favor of Eure. See id. The evidence supports this finding. [3] To the degree we construe Partners in Building’s argument as an assertion that there is no contract to examine without resorting to parol evidence to establish the formation of the contract, a court may determine as a matter of law that multiple documents comprise a written contract, and, in pertinent circumstances, may construe all documents as if they were part of a single, unified instrument. Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000). The record in this case reflects all necessary elements of an enforceable contract. [4] Partners in Building claims a reasonable time was three to four months and as many as six months, referring to Eure’s testimony as to what constituted a reasonable time. For support, Partners in Building also refers to Eure’s testimony that the matter was a “simple” matter to decide and that she had instructed her lawyer (Roberts) to accept the cash offer as early as June 2002. [5] To the extent Partners in Building asserts that Eure’s claim is barred by limitations, this argument was raised for the first time in Partners in Building’s reply brief. A reply brief may not be used to raise new issues, including an argument for limitations. See State v. Vavro, 259 S.W.3d 377, 380 (Tex. App.—Dallas 2008, no pet.) (declining to address limitations argument raised for first time in reply brief).