Opinion issued December 8, 2016




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-15-01079-CV
                           ———————————
           HORIZON POOLS & LANDSCAPES, INC., Appellant
                                       V.
                       NELSON SUCARICHI, Appellee


                   On Appeal from the 412th District Court
                           Brazoria County, Texas
                       Trial Court Case No. 81251-CV


                         MEMORANDUM OPINION

      This dispute arose from a contract to build a swimming pool. The trial court

found that the contract required two pool lights and one spa light. Because the

contractor installed only one pool light, the court awarded damages and attorney’s
fees to the homeowner. Horizon Pools & Landscapes, Inc. appeals from the trial

court’s judgment for breach of contract. Finding no error, we affirm.

                                 BACKGROUND

      Nelson Sucarichi sued Horizon for breach of contract and violation of the

Deceptive Trade Practices Act, alleging that he had contracted for the construction

of a pool with two pool lights, but Horizon installed just one. Because of this error,

Sucarichi withheld the final payment owed on the contract. Sucarichi also sought to

remove Horizon’s construction lien against the property, which clouded the title to

his home. The lien related to the remaining amount owed under the contract for the

construction of the pool.

      Horizon answered and counterclaimed for the amount of the contract price

that Sucarichi had not paid.

      The trial court granted a partial summary judgment in Sucarichi’s favor,

declaring that Horizon’s lien was invalid and void. By agreement, the parties then

tried the remaining claims to the bench. Sucarichi testified on his behalf and called

Curt Olmstead, Horizon’s President, as a witness. The defense called one additional

witness, a Horizon employee, Lauren Olmstead.

      Sucarichi identified the parties’ contract, which the trial court admitted into

evidence. Sucarichi testified that the contract called for the installation of three

lights, two in the pool and one in the spa, but that Horizon installed only one of the



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required pool lights. The contract distinguished between the pool and the spa, and

Sucarichi testified that the lighting terms applicable to each were separate and

distinct from one another. Sucarichi further testified that the handwritten terms of

the contract were completed by Horizon’s salesman, who had persuaded Sucarichi

to have two lights installed in the pool due to its length. According to Sucarichi, the

salesman told him that one light would not be sufficient to light the pool. Sucarichi

testified that the bottom of the pool is not visible at night without the second light

and that the lighting deficiency is exacerbated because Horizon placed the lone pool

light in the shallow end rather than the deep end of the pool, which is six feet deep.

      Based on three bids that he obtained, Sucarichi said it would cost either

$7,823.30 or $7,923.60 for another company to install the missing pool light. An

estimate for the latter amount was admitted into evidence without objection.

Sucarichi testified that he had withheld $3,700 of the contract price because Horizon

refused to install the second light.

      Curt Olmsted testified that the handwriting in the contract belonged to a

salesman who was no longer with the company. He agreed that the contract provided

for two pool lights. He also agreed that the contract provided for one light in the

spa. But he disagreed that the contract therefore called for the installation of three

separate lights. He contended that the contract only required two lights total, one in

the pool and one in the spa. He explained that the provision relating to the spa light



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merely stated a wattage, which he contended did not denote a separate light fixture.

Olmstead further explained that a pool light in a pool that is only six feet deep is

inconsequential and that the bottom would be visible without one. Olmstead

conceded, however, that he did not personally communicate with Sucarichi

regarding the terms of the contract. He acknowledged that he was not present for

the conversation between Sucarichi and the salesman. Olmstead also testified that

his daughter, Lauren Olmstead, who runs the company’s office, was not present

when the company’s salesman discussed the contract with Sucarichi. He stated that

Sucarichi owed Horizon $3,960.40 for the completed pool.

      Lauren Olmstead confirmed that the contract is printed by the company and

that the handwritten portions are then completed by a company representative. Like

her father, Lauren Olmstead testified that the contract required two lights total.

However, she agreed that she was not present when Sucarichi signed the contract.

      During closing arguments, Sucarichi’s counsel emphasized a construction

diagram of the combined pool and spa. He urged that the diagram showed separate

and distinct structures that should be regarded independently of one another,

including with respect to their lighting. This diagram was part of Horizon’s file,

which had been admitted into evidence by the defense at the beginning of trial.

However, no witness testified about this diagram, and counsel for both Sucarichi and

Horizon agreed that it was not part of the contract. Sucarichi’s counsel also



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represented that, if recalled to the stand, his client would testify that he had never

seen it before trial. No evidence admitted at trial suggested otherwise.

      The trial court rendered judgment in Sucarichi’s favor from the bench. It

subsequently entered a final judgment memorializing its rulings, including a take-

nothing judgment in Sucarichi’s favor on Horizon’s counterclaim, and judgment for

Sucarichi for $3,963.20 plus attorney’s fees.

      Horizon requested findings of fact and conclusions of law. Among other

things, the trial court found that:

      ●    other than Sucarichi’s signature, the handwritten portions of the contract

           were filled in by Horizon’s salesman;

      ●    Horizon’s salesman told Sucarichi that two lights were necessary due to

           the length of the pool;

      ●    one light was installed in the pool and another one was installed in the spa;

      ●    the diagram of the pool in Horizon’s file showed that the pool and spa

           were “separate components” of the construction.

The trial court concluded that Horizon breached the contract by failing to install two

lights in the pool. In sum, the trial court implicitly concluded that the contract was

ambiguous and looked to extraneous proof of the parties’ intent—the salesman’s

discussion with Sucarichi and the construction diagram—and found that the parties

intended to install two lights in the pool and a third in the spa. It calculated



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Sucarichi’s damages by subtracting the amount he withheld from Horizon from the

amount it would cost him to install a second light in the pool.1

                                   DISCUSSION

      Horizon contends that the contract unambiguously required it to install one

light in the pool and a second one in the spa; thus, it further contends, it did not

breach the contract as a matter of law. Even if the contract is ambiguous, Horizon

contends that the proof is legally insufficient to support the trial court’s implicit

finding that the parties agreed that the combined pool and spa would have three

lights. Horizon does not challenge the judgment on any other grounds.

I. The contract is ambiguous as to whether it required Horizon to install a
   total of two or three underwater lights in the combined pool and spa.

A.    Standard of review and applicable law

      Whether a contract is ambiguous is a question of law, which we review de

novo. Charles R. Tips Family Tr. v. PB Commercial, 459 S.W.3d 147, 153 (Tex.

App.—Houston [1st Dist.] 2015, no pet.). When we review an issue de novo, we

accord no deference to the trial court’s decision. Cooke v. Morrison, 404 S.W.3d

100, 111 (Tex. App.—Houston [1st Dist.] 2013, no pet.).



1
      The trial court’s findings of fact and conclusions of law erroneously state that
      the court subtracted $3,700 from $7,823.30 to arrive at Sucarichi’s damages
      of $3,963.20. Instead, the court subtracted $3,960.40—the amount that the
      Olmsteads testified Sucarichi still owed—from $7,923.60—the amount stated
      on the face of Sucarichi’s estimate for installation of a second light.

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      The fact that the parties disagree about the meaning of a contract does not

make it ambiguous. Guggenheim Corp. Funding v. Valerus Compression Serv., 465

S.W.3d 673, 681 (Tex. App.—Houston [1st Dist.] 2015, pet. denied). Nor is their

testimony admissible on the issue of ambiguity. Pitts & Collard, L.L.P. v. Schechter,

369 S.W.3d 301, 313 (Tex. App.—Houston [1st Dist.] 2011, no pet.). Instead, a

court generally must decide whether a contract is ambiguous by determining the

parties’ intent as expressed within the four corners of the agreement.             See

Guggenheim, 465 S.W.3d at 681–82. Mere lack of clarity or poor draftsmanship

does not make a contract ambiguous, unless its provisions are susceptible to more

than one reasonable interpretation. Id. at 681.

      We accord contract terms their plain, ordinary, and generally accepted

meaning unless the contract defines them to the contrary or otherwise indicates a

different meaning. Hodges v. SAFECO Lloyds Ins., 438 S.W.3d 698, 700 (Tex.

App.—Houston [1st Dist.] 2014, no pet.); Concierge Nursing Ctrs. v. Antex Roofing,

433 S.W.3d 37, 47 (Tex. App.—Houston [1st. Dist.] 2013, no pet.). We consider

the contract in its entirety rather than reading its provisions in isolation. Concierge

Nursing, 438 S.W.3d at 47. We may neither add to nor subtract from its language.

N. & W. Ins. v. Sentinel Inv. Grp., 419 S.W.3d 534, 538–39 (Tex. App.—Houston

[1st Dist.] 2013, no pet.).




                                          7
      If the contract is unambiguous, the court construes its meaning as a matter of

law without reference to extrinsic evidence, excepting external references like

dictionaries, which may be consulted regarding ordinary meaning. Gen. Metal

Fabricating Corp. v. Stergiou, 438 S.W.3d 737, 754 (Tex. App.—Houston [1st

Dist.] 2014, no pet.); Mescalero Energy v. Underwriters Indem. Gen. Agency, 56

S.W.3d 313, 320 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). In contrast, if

the contract is ambiguous, its interpretation is a fact issue to be resolved by a

factfinder, who may consider extraneous evidence of the parties’ intent. Mescalero,

56 S.W.3d at 319; Plotkin v. Joekel, 304 S.W.3d 455, 470 (Tex. App.—Houston [1st

Dist.] 2009, pet. denied). The ostensible rule of construction that ambiguities in a

contract should be construed against its drafter plays no role “in making a fact

finding about what the parties intended.” GTE Mobilnet of S. Tex. v. Telecell

Cellular, 955 S.W.2d 286, 291 (Tex. App.—Houston [1st Dist.] 1997, no writ).

B.    Analysis

      Relying on Entzminger v. Provident Life & Accident Insurance Co., 652

S.W.2d 533 (Tex. App.—Houston [1st Dist.] 1983, no writ), Horizon first asserts

that Sucarichi waived the issue of ambiguity by failing to plead it. But Entzminger

is no longer good law on this point. Based on intervening authority, we have held

that a trial court charged with interpreting a contract may determine that it is

ambiguous. See Plotkin, 304 S.W. at 475 n.10 (citing White v. Moore, 760 S.W.2d



                                         8
242, 243 (Tex. 1988), and Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983)); N.

Cen. Oil v. La. Land & Expl., 22 S.W.3d 572, 575–76 (Tex. App.—Houston [1st

Dist.] 2000, pet. denied) (same); see also J.M. Davidson, Inc. v. Webster, 128

S.W.3d 223, 231 (Tex. 2003). Regardless, both Sucarichi and Horizon introduced

extrinsic evidence of the meaning of the contract at trial and both parties discussed

extrinsic evidence in their closing arguments, thereby trying the issue by consent.

Sage Street Assocs. v. Northdale Constr. Co., 863 S.W.2d 438, 445 (Tex. 1993).

Thus, we reject Horizon’s contention that Sucarichi’s failure to plead ambiguity

precluded the trial court from concluding that the contract was ambiguous.

      The parties’ contract consisted of two pages, the second of which was a series

of terms and conditions typewritten in capital letters. All of the specific terms

pertaining to Sucarichi’s spa and pool appear on the first page, which was a

preprinted form with blanks. The relevant portion of the parties’ contract was

subdivided into four sections. The first two sections, which are set off from one

another by line that spans half the length of the contract’s text, concern the pool.

These sections contain two different provisions relating to lights. The first states

“Lights(s)” and is accompanied by the handwritten notation “(2) L.E.D.” The

second provision states “Pool Light” and is accompanied by an illegible handwritten




                                         9
notation.2 The third section concerns the spa and the fourth section concerns

decking, maintenance equipment, and landscaping. The third and fourth sections are

separated from one another and the two sections relating to the pool by lines that

span the full length of the contract’s text. The third provision relating to lights occurs

in the spa section, in which there is a blank for “Light” accompanied by the

typewritten notation “100 watt.”

      We hold that these provisions are ambiguous with respect to the total number

of lights Horizon was to install, inasmuch as one could reasonably construe the

contract to provide for two lights in the pool and one in the spa or two lights total in

the combined pool and spa.          The contract supplies no reason to favor one

interpretation over the other. Its terms do not explicitly state the total number of

lights in a combined structure. In addition, the two sections pertaining to the pool

confuse the matter by providing two separate blanks relating to lighting: “Lights(s)”

and “Pool Light.” The handwritten notation accompanying the latter of these is

illegible, which ultimately renders it impossible to say what the contract specifies

with respect to lighting. Cf. Guzman v. Acuna, 653 S.W.2d 315, 319 (Tex. App.—

San Antonio 1983, writ dism’d) (affirming ruling that illegibility of essential

handwritten terms in form contract made it uncertain and ambiguous and thus


2
      The trial court found that the handwritten notation “(2) L.E.D.” appeared next
      to the blank for “Lights(s).” But its findings of fact do not reference the
      illegible handwritten reference next to the blank for “Pool Light.”

                                           10
unenforceable by specific performance). Accordingly, we hold that the contract is

ambiguous on this point. Thus, the trial court did not err in allowing extrinsic proof

to ascertain the number of lights that the parties agreed would be installed in the

pool. See Plotkin, 304 S.W.3d at 470; Mescalero, 56 S.W.3d at 320.

II. The evidence is legally sufficient to support the trial court’s finding that the
    parties agreed that the combined pool and spa would have three lights.

A.    Standard of review and applicable law

      In an appeal from a bench trial, we accord the trial court’s findings of fact the

same weight as a jury’s verdict. Thompson v. Smith, 483 S.W.3d 87, 93 (Tex.

App.—Houston [1st Dist.] 2015, no pet.). When, as here, there is a complete

reporter’s record, challenged fact findings are not conclusive; they are binding only

if legally and factually sufficient proof supports them. Id. However, unchallenged

findings of fact do bind an appellate court unless the contrary is proven as a matter

of law or there is no evidence to support the finding. McAleer v. McAleer, 394

S.W.3d 613, 620 (Tex. App.—Houston [1st Dist.] 2012, no pet.).

      To show that the evidence is legally insufficient, a party that did not bear the

burden of proof at trial must establish that there is no evidence to support the

contested finding. Heritage Hous. Dev., Inc. v. Carr, 199 S.W.3d 560, 565 (Tex.

App.—Houston [1st Dist.] 2006, no pet.). We will sustain a legal insufficiency

challenge if there is a total lack of proof or the proof is no more than a scintilla, rules

of law or evidence bar us from giving weight to the only supporting proof, or the

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proof conclusively establishes the opposite of the finding. Id. But the evidence also

must be viewed in the light most favorable to the trial court’s findings. Id. We

disregard evidence and inferences contrary to a finding, unless the evidence only

permits one inference. Id.; Trammell v. Trammell, 485 S.W.3d 571, 575 (Tex.

App.—Houston [1st Dist.] 2016, no pet.). We defer to the trial court’s assessment

of the credibility of the witnesses. Hung v. An, 426 S.W.3d 786, 793 (Tex. App.—

Houston [1st Dist.] 2012, no pet.). The ultimate question is whether the proof,

viewed in that light, would permit a reasonable factfinder to render the challenged

findings. Heritage, 199 S.W.3d at 565.

B.     Analysis

       Horizon does not challenge any of the trial court’s individual findings of fact,

but it contends that the proof is legally insufficient to support the trial court’s implicit

finding that the parties agreed to the installation of three lights total, two in the pool

and one in the spa.

       The trial court found that Horizon’s salesman filled out the contract, and

Horizon does not challenge this finding. Sucarichi testified that the company’s

salesman did so. Sucarichi said that he understood the written contract to provide

for two lights in the pool and one in the spa. The trial court found that Horizon’s

salesman told Sucarichi that two lights were necessary due to the length of the pool,

and Horizon does not challenge this finding. Sucarichi testified that the company’s



                                            12
salesman persuaded him to install two lights in the pool. According to Sucarichi,

the salesman explained that the pool was so long that one light would not be enough.

In corroboration of this testimony, Sucarichi introduced into evidence a letter he

subsequently wrote to the company in which he tried to persuade it to perform the

contract as he understood it. In the letter, Sucarichi wrote that Horizon’s salesman

had told him at the time of contracting that he needed two lights in the pool due to

its length given that Sucarichi wanted the pool’s deep end illuminated. Without this

light, Sucarichi testified, the bottom of the pool is not visible at night because the

single pool light the company installed was in the shallow end. Furthermore, the

trial court found that the construction diagram showed the pool and spa to be

“separate components” of the construction, and Horizon does not challenge this

finding on appeal. We defer to the trial court’s resolution of the conflicting

testimony on these matters. See Hung, 426 S.W.3d at 793. Taken together, this

proof is legally sufficient to support the trial court’s implicit finding that, based on

extrinsic evidence of the parties’ intent, they agreed to the installation of three lights

total, two in the pool and one in the spa. See Thompson, 483 S.W.3d at 93.

Accordingly, we hold that legally sufficient evidence supports the trial court’s

implicit finding that the parties agreed to the installation of three lights in the

combined spa and pool.




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                                 CONCLUSION

       We hold that the trial court did not err in interpreting the contract to be

ambiguous on the disputed question. We further hold that legally sufficient evidence

supports its findings favoring the homeowner. We therefore affirm the judgment of

the trial court.




                                             Jane Bland
                                             Justice

Panel consists of Justices Bland, Massengale, and Lloyd.




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