                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 2-07-289-CV


INIMITABLE GROUP, L.P.                                           APPELLANTS
AND SOITIS, L.L.C.
                                       V.

WESTWOOD GROUP
DEVELOPMENT II, LTD.                                                APPELLEE

                                   ------------

        FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                                  OPINION

                                   ------------

                                 Introduction

      This case involves a dispute over whether a contract for the construction

and sale of an office and warehouse building was validly terminated by the

purchaser before closing. In five issues, appellants Inimitable Group, L.P. and

Soitis, L.L.C. challenge (1) the trial court’s determination that they did not

validly terminate the contract and, consequently, (2) the trial court’s final
judgment awarding damages to appellee Westwood Group Development II, Ltd.

for breach of contract. We affirm.

                                 Background

      In February 2005, Soitis and Westwood entered into an Agreement of

Purchase and Sale (Agreement) “to provide for the construction by”

Westwood—and the subsequent sale to Soitis—of an office and warehouse

building in Grapevine, Texas. The Agreement provided for the building to be

constructed according to certain plans and specifications, which were attached

as exhibits. The initial closing date was to be October 30, 2005. The date the

building was to be substantially completed as defined in the Agreement was

October 15, 2005, “as adjusted from time to time as expressly provided” in the

Agreement. The Agreement further (1) provided that “[t]ime is of the essence,”

(2) required Westwood to construct the building with due diligence on or before

the substantial completion date, “as extended by Excusable Delays and/or

Purchaser Delays,” both defined in the Agreement,1 and (3) allowed Soitis to

terminate the agreement by written notice to Westwood if substantial


      1
       … “Excusable Delay” is defined as delay in substantial completion for
reasons “beyond the reasonable control of Seller,” such as delay because of
strikes, governmental regulatory orders, weather, or changes to the project
made by the purchaser. “Purchaser Delay” is defined as delay in substantial
completion “due to any act or omission” of the purchaser, including delay
because of any changes to the project made by the purchaser.

                                      2
completion had not occurred by December 31, 2005 “as extended by Purchaser

Delays only and Excusable Delays.”

      The construction plans attached to the Agreement provided only for the

construction of the exterior of the building; Soitis was responsible for its own

interior finish-out. Construction on the building began in late March 2005. In

April 2005, Soitis and Westwood agreed that Westwood would assist Soitis in

designing the interior finish-out of the building. Westwood hired an architect

to assist with the interior finish-out plans.

      From April through November 2005, Tony Robertson, Soitis’s president,

and Nicole Meadors, a Westwood employee, corresponded by phone and email

regarding various aspects of the interior and exterior design and construction

of the building. Al Burtin, Westwood’s chief operating officer, also participated

in the process.   Soitis requested several alterations to the original exterior

design, including the relocation of a truck ramp, the addition of a window, and

the addition of a hard coat texture to the exterior. After reviewing and making

several changes to the architect’s proposed drawings, Robertson approved the

initial interior finish-out plans on June 21, 2005.      He approved the final

construction documents for the interior on September 14, 2005, which

Westwood then sent out for bids on the construction costs.




                                         3
      On November 7, 2005, the day Westwood received at least one of the

bids for the interior construction, Robertson and Meadors had a phone

conversation about the project, after which Meadors sent Robertson an email

stating, “I was curious to hear if you had found anything else out? We have

put your building on hold, but need to know ASAP exactly what direction we

are going to be heading in.” Two days later, on November 9, 2005, Robertson,

Burtin, and Meadors met regarding the project, and Robertson informed

Meadors and Burtin that Soitis did not intend to occupy the building. They

discussed options for the project, including having Soitis continue with the

purchase and lease or sell the building. In addition, Robertson asked Meadors

to investigate whether a different buyer could be found for the project.

Robertson told Meadors and Burtin that he wanted to get a new appraisal on

the building.   Robertson’s notes from that meeting indicate, “Anticipate a

closing on December 1st,” and contain a notation that appears to state that the

architect’s costs were approximately $25,000. The meeting notes also appear

to contain calculations of the costs to either lease or sell the building in both

improved and unimproved condition.

      Despite Robertson’s November 7, 2005 instruction to stop work on the

building, Westwood’s contractor continued construction according to its

contract with Westwood. As of December 13, 2005, the only item remaining

                                       4
to be completed was the addition of an exterior wall light, needed to replace a

planned but not installed light pole that the architect had inadvertently located

over a gas line.

      On December 14, 2005, Meadors sent Robertson an email stating,

      We are still trying to sell your building[;] our prospect cannot meet
      until after the first of the year . . . so I will keep you informed. As
      far as closing on your building, we want to close after Christmas
      but before the New Year. Can you have all of your financing in
      place by this time?

Robertson responded, “Having the financing in place is not a problem.

Organizing our side for a closing in the middle of the holiday week is going to

be a problem. The way things stand now, we are all out on vacation. We can

try to figure something out this afternoon.” Meadors sent Robertson an email

on January 9, 2006 inquiring whether Soitis “had gotten anything scheduled

for [the] building” and asking him to email her “an update so we can get a

closing date set.” Robertson responded,

      I forwarded the information to Chase last Thursday. My contact
      assured me they would evaluate the appraiser to determine if they
      could use him in our situation. I think you are correct, that this
      would be the most effective way to get us the appraisal we want
      in the shortest time. . . . I will be talking with Chase tomorrow at
      the latest.

      Burtin finally sent Robertson an email on January 27, 2006, stating that

Westwood wanted to schedule closing for February 6, 2006. Burtin went on


                                        5
to state that the building had been substantially completed on November 30,

2005 and that the construction had run over schedule because of the changes

to the exterior plans requested by Soitis, “none of which [according to Burtin]

pertained to the seller’s actions.” Soitis did not challenge Burtin’s contention

that it was the cause of the construction delay.

      On January 31, 2006, Meadors sent Robertson an email noting that he

had told her Soitis was “changing the name on the [Agreement] from Soitis to

another entity” and asking the name so that an assignment could be drafted.

Soitis formed Inimitable in February 2006 and assigned its rights under the

Agreement to Inimitable. According to Steve Staneff, Soitis’s former president

and an equity holder, Inimitable was formed for the sole purpose of purchasing

the building as an investment with the intent to lease it back to Soitis.2

      Robertson and Meadors continued to correspond regarding closing, with

Meadors attempting to schedule a February 15, 2006 closing. Robertson told

her that he would “make every effort for 2:00 on the 15th, [but] the 16th

would be easier.” He also stated that he “would like to wrap this up as well.”

Meadors met with the new appraiser on February 6, 2006.               However,

unbeknownst to Westwood, Robertson, had already begun looking at the


      2
        … Robertson testified at trial, however, that after November 9, 2005,
Soitis never intended to occupy the building.

                                       6
Agreement to determine if Inimitable could terminate the transaction.

Accordingly, sometime during the time he was discussing closing with Meadors,

Robertson was discussing termination options with counsel. After confirming

that the City had not issued a certificate of occupancy for the building exterior

because the wall light had not been installed, appellants’ counsel sent a letter

to Westwood terminating the Agreement under section 6.3, which allowed the

buyer to terminate if the building had not been substantially completed by

December 31, 2005. In the letter, counsel also demanded that Westwood

return the $50,000 earnest money Soitis had paid into escrow when it first

entered into the Agreement.

      After Westwood refused to return the earnest money, appellants sued

Westwood in March 2006, claiming that Inimitable had validly terminated the

Agreement and seeking return of the earnest money as damages for breach of

contract.   They also sought a declaratory judgment that the Agreem ent is

“terminated, invalid, void, and/or unenforceable.”         Westwood asserted

counterclaims for breach of contract, negligence, and quantum meruit. In its

Third Amended Original Answer, Westwood also included specific denials,

claiming, among other things, that all conditions precedent to appellants’ right

to relief had not occurred: specifically, that appellants prevented Westwood

from performing the Agreement by instructing it to stop construction on the

                                       7
building. Westwood also pled the affirmative defenses of appellants’ breach

and failure to perform, anticipatory repudiation, waiver, promissory and

equitable estoppel, laches and unclean hands, and impossibility or impracticality

of performance.

      After a bench trial on January 16, 2007, the trial court ruled in favor of

Westwood, awarding it damages of $157,946 plus prejudgment interest of

$13,209.05—a total of $171,155.05—for breach of contract. It also awarded

Westwood $65,000 in trial attorney’s fees and conditional attorney’s fees on

appeal for $20,000 each to an appeal to the court of appeals and a fully briefed

appeal in the supreme court. It also split costs between Inimitable and Soitis.

The trial court signed findings of fact and conclusions of law on October 18,

2007.

                                 Issues on Appeal

      Appellants bring five issues on appeal, in which they challenge the

following findings and conclusions of the trial court:         (1) that Soitis and

Westwood entered into a second, oral agreement for Westwood to coordinate

the interior design of the building, (2) that Soitis either anticipatorily repudiated

or breached the second, oral agreement, or both, by failing to execute change

orders incorporating the interior design work into the Agreement, (3) that

Westwood was excused from performance under the Agreement after Soitis’s

                                         8
anticipatory repudiation, breach, or both of the second, oral agreement, (4) that

Soitis should be estopped from claiming Westwood breached the Agreement,

and (5) that Soitis waived any failure by Westwood to comply with the

Agreement.

                              Standard of Review

      Findings of fact entered in a case tried to the court have the same force

and dignity as a jury’s answers to jury questions. Anderson v. City of Seven

Points, 806 S.W.2d 791, 794 (Tex. 1991). The trial court’s findings of fact are

reviewable for legal and factual sufficiency of the evidence to support them by

the same standards that are applied in reviewing evidence supporting a jury’s

answer. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel,

881 S.W.2d 295, 297 (Tex. 1994). A court of appeals cannot make original

findings of fact; it can only “unfind” facts. Tex. Nat’l Bank v. Karnes, 717

S.W.2d 901, 903 (Tex. 1986); Zeptner v. Zeptner, 111 S.W.3d 727, 734 (Tex.

App.—Fort Worth 2003, no pet.) (op. on reh’g).

      Conclusions of law may not be challenged for factual sufficiency, but

they may be reviewed to determine their correctness based upon the facts.

Citizens Nat’l Bank v. City of Rhome, 201 S.W.3d 254, 256 (Tex. App.—Fort

Worth 2006, no pet.); Dominey v. Unknown Heirs and Legal Representatives

of Lokomski, 172 S.W.3d 67, 71 (Tex. App.—Fort Worth 2005, no pet.).

                                       9
                 Existence of Oral Agreement for Interior Finish-out

      In their first issue, appellants contend that the trial court incorrectly

concluded that Soitis and Westwood entered into a valid, binding second

agreement for the interior finish-out of the building because there is no evidence

that the terms of such an agreement were sufficiently definite so as to be

enforceable. In their second issue, appellants contend that because there is no

evidence of an enforceable second agreement, they cannot have anticipatorily

repudiated it.

      Whether an agreement is legally enforceable or binding is a question of

law. Searcy v. DDA, Inc., 201 S.W.3d 319, 322 (Tex. App.—Dallas 2006, no

pet.); Oakrock Exploration Co. v. Killam, 87 S.W.3d 685, 690 (Tex. App.—San

Antonio 2002, pet. denied). To be enforceable, a contract must be sufficiently

definite in its material terms so as to enable the court to ascertain the parties’

intentions. Fort Worth ISD v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex.

2000); T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.

1992). What terms are “material” to a contract should be determined on an

agreement-by-agreement basis. T.O. Stanley Boot Co., 847 S.W.2d at 221

(“Each contract should be considered separately to determine its material

terms.”). When an essential term is left open for future negotiation, there is no

binding contract. Id.

                                         10
      The terms of an oral agreement may be established by direct or

circumstantial evidence. Harris v. Balderas, 27 S.W.3d 71, 77 (Tex. App.—San

Antonio 2000, pet. denied). In determining whether an oral contract exists, we

“look to the communications between the parties and to the acts and

circumstances surrounding those communications.” Id.

      Appellants contend that they cannot have entered into an enforceable

agreement for the interior finish-out because there was no agreed upon fee for

Westwood’s services—and thus no way to determine the final cost of the

agreement—a0nd no agreed upon due date for the finished product.

      When a contract does not set forth a definite price but all other elements

of a contract have been met, the trial court may imply a reasonable price. KW

Constr. v. Stephens & Sons Concrete Contractors, Inc., 165 S.W.3d 874,

883–84 (Tex. App.—Texarkana 2005, pet. denied); Buxani v. Nussbaum, 940

S.W.2d 350, 353 (Tex. App.—San Antonio 1997, no writ). Thus, when the

parties have done everything else necessary to make a binding agreement for

services, their failure to specify a price does not leave the contract so

incomplete that it cannot be enforced.     KW Constr., 165 S.W.3d at 884;

Burnside Air Conditioning & Heating, Inc. v. T.S. Young Corp., 113 S.W.3d

889, 894–95 (Tex. App.—Dallas 2003, no pet.); Pennington v. Jerry F.




                                      11
Gurkoff, D.O., P.A., 899 S.W.2d 767, 770 (Tex. App.—Fort Worth 1995, writ

denied).

      Additionally, the absence of a duration term for a contract “does not

necessarily suggest that the parties did not enter into an enforceable

agreement.”    Cytogenix, Inc. v. Waldroff, 213 S.W.3d 479, 486 (Tex.

App.—Houston [1st Dist.] 2006, pet. denied); Avila v. Gonzalez, 974 S.W.2d

237, 244 (Tex. App.—San Antonio 1998, pet. denied) (noting that, “[w]hen the

duration of a contract is not expressly dictated by the agreement, courts will

frequently presume that the parties intended the agreement to last for a

reasonable time”). If no time for performance is stated in the contract, the law

may imply a reasonable one if the contract is “sufficiently definite for a court

to be able to fix the time when it can be enforced.” Moore v. Dilworth, 142

Tex. 538, 179 S.W.2d 940, 942 (1944); Cytogenix, 213 S.W.3d at 486; Avila,

974 S.W.2d at 245 (noting that reasonable duration may be implied “in cases

where the agreement contemplates that one party will make substantial

expenditures or other investments in accordance with performance”).

      Here, Robertson testified that Soitis and Westwood had an oral

agreement for Westwood to engage the architect to provide interior design

services for the project. Robertson signed off on initial drawings and on final

construction documents prepared by the architect for that purpose. He was

                                      12
actively engaged in the design process, making comments to the drawings and

suggesting revisions based on Soitis’s specific needs.          When Westwood’s

counsel asked him at trial whether he had agreed to pay Westwood for its

expenses in engaging the architect, Robertson said, “Yes.”

      Burtin testified about the process by which Westwood and Soitis entered

into their oral agreement regarding the interior finish-out of the building. He

explained as follows:

            Here’s how the process works: We . . . talked about okay,
      yes, our willingness to fill that role. And then what we typically do
      with every person, with every client, is we go through the process
      of design.

            Then after design is signed off on, then we go through the
      process of obtaining construction documents. And then after the
      construction documents are acquired, then they have to be bid out.
      And then we go through the selection of the bidding process to get
      the best contractor. And then that is awarded to that best
      contractor, and then we know a price at that point in time.

He explained that it is impossible to determine a final price for the interior finish-

out until the entire process is complete. However, he did testify regarding

expenses that

      we would go through this process and get to a point where we
      have a number. And then at that point in time, we will add a
      margin on top of the best bid number. And then that is the number
      that we will use to add to the different expanded scope of work
      which was requested of us.




                                         13
Thus, Burtin’s testimony corroborates Robertson’s that Soitis agreed to at least

reimburse Westwood for its expenses related to providing the interior design

services. Accordingly, we do not believe that the agreement was indefinite for

failure to provide a final, agreed upon price for those services. See Buxani, 940

S.W.2d at 353.

      Moreover, we do not believe that the agreement is unenforceable for lack

of a specific term for completion of the services.          Burtin testified that

Westwood representatives explained the interior design and construction

process to Soitis, and the parties were actively engaged in the design process

throughout the summer while the exterior shell construction was ongoing. The

trial court found that Soitis initially intended to occupy the building and that it

could save time and money by working on the interior finish-out during

construction of the exterior as opposed to waiting until the exterior was

completed before beginning the interior finish-out; appellants do not challenge

that finding. Thus, the trial court impliedly found that Soitis intended for the

interior finish-out to be completed within a reasonable time after construction

of, and closing on, the exterior part of the building, so as to provide Soitis with

the maximum savings of time and money.

      Based on the foregoing, we conclude and hold that the trial court did not

err by determining that Soitis and Westwood entered into an enforceable oral

                                        14
agreement for the interior finish-out of the building. We overrule appellants’

first issue. Because appellants’ second issue—whether the trial court erred by

determining that appellants anticipatorily repudiated the interior finish-out

agreement—is contingent upon their argument that the oral agreement was

unenforceable, we overrule their second issue as well.

            Whether Westwood Excused from Performing Under
                    Agreement of Purchase and Sale

      In their third issue, appellants contend that the trial court erred by

concluding that Westwood was excused from performing under the Agreement

after appellants either anticipatorily repudiated or breached the second

agreement for interior design services, or both.

      If, after a party breaches a contract, the other party continues to insist

on performance by the defaulting party, the nondefaulting party is not excused

from performing its part of the contract as a result of the defaulting party’s

breach; the contract continues in force for the benefit of both parties. Kennedy

Ship & Repair L.P. v. Pham, 210 S.W.3d 11, 25 (Tex. App.—Houston [14th

Dist.] 2006, no pet.); Houston Belt & Terminal Ry. v. J. Weingarten, Inc., 421

S.W.2d 431, 435 (Tex. Civ. App.—Houston [1st Dist.] 1967, writ ref’d n.r.e.).

Thus, when one party materially breaches a contract, the nondefaulting party

is forced to elect between two courses of action, i.e., continuing performance


                                      15
or ceasing performance. Pham, 210 S.W.3d at 25; Chilton Ins. Co. v. Pate &

Pate Enters., Inc., 930 S.W.2d 877, 887–88 (Tex. App.—San Antonio 1996,

writ denied). Treating the contract as continuing after a breach deprives the

nondefaulting party of any excuse for terminating its own performance. Pham,

210 S.W.3d at 25; Chilton Ins., 930 S.W.2d at 888.

      According to appellants, Westwood failed to elect which remedy it

wished to pursue against appellants:     either (1) insist on performance and

remain bound by all terms of the Agreement or (2) treat appellants’ actions as

a breach and eschew any performance by appellants; in other words, appellants

contend that by continuing to seek closing on the exterior, Westwood

consciously decided to forego the benefit of being able to claim a prior breach

of the Agreement by appellants. Appellants’ did not raise this argument at trial

or in their pleadings, nor did they try it by consent.3 Mastin v. Mastin, 70

S.W.3d 148, 154 (Tex. App.—San Antonio 2001, no pet.) (“Trial by consent

is intended to cover the exceptional case where it clearly appears from the

record as a whole that the parties tried the unplead issue.”).         Because




      3
       … Although appellants’ counsel did ask several questions related to
Westwood’s continuing construction of the shell after Robertson instructed
them to put the building on hold, those questions were clearly related to an
attempt to prove that Westwood, rather than appellants, was responsible for
the delays in substantial completion of the exterior.

                                      16
appellants’ argument is in the nature of an avoidance to Westwood’s

affirmative defense of excuse, it too is an affirmative defense that appellants

were required to plead. T EX. R. C IV. P. 94; Compass Bank v. MFP Fin. Servs,

Inc., 152 S.W.3d 844, 852 (Tex. App.—Dallas 2005, pet. denied). Because

they did not do so, they are not entitled to rely on Westwood’s alleged failure

to elect its remedies to support reversal of the judgment on appeal. Compass

Bank, 152 S.W.3d at 852, 857.

      Moreover, appellants did not challenge paragraph 34 of the trial court’s

findings of fact and conclusions of law, which states, “Substantial completion

of the building was timely, and all conditions precedent were met by

Westwood.” Thus, appellants failed to challenge an alternative finding of the

trial court that supports its judgment: that Westwood did not fail to perform

its obligations under the Agreement. 4 We overrule appellants’ third issue.




      4
       … When findings of fact are filed and are unchallenged, they occupy the
same position and are entitled to the same weight as the verdict of a jury; they
are binding on an appellate court unless the contrary is established as a matter
of law or there is no evidence to support the finding. McGalliard v. Kuhlmann,
722 S.W.2d 694, 696 (Tex. 1986); Raman Chandler Props., L.C. v. Caldwell’s
Creek Homeowners Ass’n, Inc., 178 S.W.3d 384, 390 (Tex. App.—Fort Worth
2005, pet. denied).

                                      17
Whether Appellants Estopped from Claiming Westwood Breached Agreement

      In their fourth issue, appellants contend that the trial court erred by

concluding that appellants are estopped from claiming Westwood breached the

Agreement first.   Initially, they contend that equitable principles, such as

estoppel, are not applicable in breach of contract cases. Such a contention is

incorrect, however, because estoppel is routinely applied by courts in contract

cases. See, e.g., Cal-Tex. Lumber Co. v. Owens Handle Co., 989 S.W.2d 802,

821 (Tex. App.—Tyler 1999, no pet.); Wright Way Constr. Co. v. Harlingen

Mall Co., 799 S.W.2d 415, 422 (Tex. App.—Corpus Christi 1990, writ denied).

      Next, appellants contend that there is no evidence to support an estoppel

finding because the evidence does not support a finding that appellants

intentionally misled Westwood, nor a finding that Westwood relied on any such

misrepresentation or concealment to its detriment.

      Estoppel is defined in general as conduct which causes the other party to

materially alter his position in reliance on that conduct. Roberts v. Clark, 188

S.W.3d 204, 213 (Tex. App.—Tyler 2002, pet. denied); Braugh v. Phillips, 557

S.W.2d 155, 158 (Tex. Civ. App.—Corpus Christi 1977, writ ref’d n.r.e.). To

invoke the doctrine of estoppel, all the necessary elements of estoppel must be

present. Roberts, 188 S.W.3d at 213; Douglas v. Aztec Petroleum Corp., 695

S.W.2d 312, 317 (Tex. App.—Tyler 1985, no writ). The elements of equitable

                                      18
estoppel are (1) a false representation or concealment of material facts, (2)

made with knowledge, actual or constructive, of those facts, (3) with the

intention that it should be acted on, (4) to a party without knowledge or means

of obtaining knowledge of the facts, (5) who detrimentally relies on the

representations. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962

S.W.2d 507, 515–16 (Tex. 1998); Argyle ISD ex rel. Bd. of Trustees v. Wolf,

234 S.W.3d 229, 241 (Tex. App.—Fort Worth 2007, no pet.).

      One of the essential requisites of estoppel is a reasonable or justified

reliance on the conduct or statements of the person sought to be estopped by

the person seeking the benefit of the doctrine. Roberts, 188 S.W.3d at 213;

Douglas, 695 S.W.2d at 317. The purpose of estoppel is for the protection of

those who have been misled by that which upon its face was fair. Roberts,

188 S.W.3d at 213; Douglas, 695 S.W.2d at 317. A person may not assert

estoppel for the purpose of shielding himself from the results of his own

dereliction of duty. Roberts, 188 S.W.3d at 213; Douglas, 695 S.W.2d at 317.

                       Misrepresentation or Concealment

      Appellants challenge the trial court’s findings that Soitis changed its

business plan in the summer of 2005 and concealed this fact from Westwood

as well as its intentions with regard to the building. It also challenges the trial

court’s finding that Soitis never intended to agree on the outstanding issues and

                                        19
misled Westwood into believing that it was going to close to obtain the benefit

of additional contract defenses.      According to appellants, the evidence

conclusively shows that Robertson candidly informed Westwood that Soitis no

longer intended to occupy the building and that appellants fully intended to

close on the building up until Robertson received the email from Burtin regarding

Purchaser Delays.

      During closing arguments, the trial court stated the following:

             What concerns me about this is I’ve never been able to figure
      out based on the evidence I’ve heard, when your client [appellants]
      said they had the money, what justification they had that they kept
      stringing out the closing.

      ....

             . . . And then we have a series of reassuring e-mails and
      meetings accommodating the purchaser as the purchaser continues
      to lead on the builder that they’re going to close until, oddly
      enough, they get just past the number of days [Westwood] pointed
      out that might be arguably in the delay.

      ....

            . . . I pretty much have reached [the] conclusion that there’s
      some credibility issues on both sides - - and I’m worming my way
      through that.

      ....

            Pretty - - pretty limited testimony whenever a client says he
      didn’t look at it [referring to Robertson’s testimony that he did not
      know there was a possibility of terminating the Agreement until
      after Burtin sent the email alleging Purchaser Delays]. He didn’t

                                       20
      testify that he didn’t have lawyers reviewing it. I don’t think the
      Indianapolis law firm came up with an overnight opinion on the
      contract this size without consulting with its clients. It . . . does
      beg me to ignore reality.

            So in the engagement of the Indiana lawyers, it’s something
      the Court may inquire into, but I’m not . . . gonna buy into the fact
      that the Indiana lawyers were faxed the contract the night before
      they authored the termination advice and told the client to do it.

It is clear from the trial court’s comments that the judge did not necessarily

believe Robertson’s testimony regarding appellants’ intentions to close the

Agreement.

      The trial court was entitled to disbelieve Robertson’s and Staneff’s

testimony that Soitis intended to close on the building until just before the

scheduled closing date; the trial court’s comments show that it instead

construed Soitis’s failure to respond to Westwood’s closing inquiries with any

firm details as an intent not to close if at all possible. As the finder of fact, the

trial court was entitled to believe or disbelieve all or part of any witness’s

testimony. See Shear Cuts, Inc. v. Littlejohn, 141 S.W.3d 264, 270–71 (Tex.

App.—Fort Worth 2004, no pet.). Accordingly, there is sufficient evidence to

support the trial court’s finding of misrepresentation, concealment, or both on

the part of Soitis as to its intentions regarding closing.

Reliance




                                         21
      Appellants also contend that Westwood cannot have relied on any

misrepresentation or concealment because the evidence shows that Westwood

nevertheless continued construction of the building even after Robertson’s

November 7, 2005 instructions to stop work on the building. However, Burtin

testified that because of Robertson’s instruction, Westwood did not press to

obtain a certificate of occupancy for the exterior shell. According to Burtin, had

Robertson not given that instruction, Westwood would have pressed the

construction contractor to complete installation of the last item needed—the

wall mounted light—so that a certificate could be issued. And if Westwood had

been able to obtain that certificate, appellants would not have been able to

terminate for the reason they relied on at trial—that construction of the exterior

was not substantially complete as defined in the Agreement because a

certificate of occupancy had not been issued for the shell. We conclude that

this is sufficient evidence to support the trial court’s findings and conclusions

on estoppel.

      We overrule appellants’ fourth issue.

 Whether Trial Court Correctly Concluded That Appellants Waived Right to
  Terminate Because of Westwood’s Failure to Substantially Complete

      In their fifth and final issue, appellants contend that the trial court erred

by concluding that Soitis waived any failure by Westwood to comply with all


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of its obligations under the Agreement.     According to appellants, because

waiver requires a knowing and intentional relinquishment of a right—and

Robertson did not know the extent of appellants’ rights under the Agreement

until he reviewed it after receiving Burtin’s January 21 email—appellants cannot

have waived those enforcement rights.

      However, we have already pointed out the trial court’s skepticism

regarding Robertson’s knowledge of the extent of the contents of the

Agreement. Moreover, a party to a contract is presumed to have read and

understood its contents. UBS Fin. Servs., Inc. v. Branton, 241 S.W.3d 179,

189 (Tex. App.—Fort Worth 2007, no pet.); see Mikey’s Houses LLC v. Bank

of Am., N.A., 232 S.W.3d 145, 167 (Tex. App.—Fort Worth 2007, no pet.

[mand. pending]) (Livingston, J., dissenting). Accordingly, we conclude and

hold that the trial court did not err by concluding that appellants waived any

failure of Westwood to comply with the Agreement. We overrule appellants’

fifth and final issue.

                                  Conclusion

      Having overruled appellants’ five issues, we affirm the trial court’s

judgment.

                                           TERRIE LIVINGSTON
                                           JUSTICE

PANEL: CAYCE, C.J.; LIVINGSTON and HOLMAN, JJ.

DELIVERED: August 14, 2008

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