                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                '
 THE STANLEY WORKS D/B/A                                        No. 08-11-00015-CV
 STANLEY MECHANICS TOOLS,                       '
                                                                    Appeal from
                        Appellant,              '
                                                                 30th District Court
 v.                                             '
                                                             of Wichita County, Texas
                                                '
 WICHITA FALLS INDEPENDENT
 SCHOOL DISTRICT,                               '                (TC # 165,364-A)

                        Appellee.

                                         OPINION

       The Stanley Works d/b/a Stanley Mechanics Tools appeals from a judgment entered in

favor of Wichita Falls Independent School District. We affirm in part, reverse in part and

remand to the trial court for entry of judgment in accordance with this opinion.

                                     FACTUAL SUMMARY

       In May 1990, the Wichita County Commissioners Court adopted an order establishing

guidelines and criteria for the designation of reinvestment zones and entry into tax abatement

agreements pursuant to the Property Redevelopment and Tax Abatement Act contained in

Chapter 312 of the Texas Tax Code. See TEX.TAX CODE ANN. §§ 312.001-312.403 (West

2008 and Supp. 2011). In June 1994, Stanley entered into a written Tax Abatement Agreement

with Wichita County, Texas. WFISD became a party to the agreement in July 1994. Under the

Agreement, Stanley agreed to make certain personal property additions and improvements to its

tool manufacturing facility in Wichita Falls, Texas. The Agreement provided that Stanley would

relocate to Wichita Falls certain equipment and processes from an existing Ohio facility. Stanley

would also purchase additional equipment for the Wichita Falls facility.               The parties
contemplated that the expansion would create an additional 100 jobs by the end of the expansion

period.

          Attached to the tax abatement agreement is Exhibit B which describes the three-phase

project as follows:

          Phase I - Projected Timing - June through December 1994

          Scope of this phase will be the manufacture of ‘Mac’ Tool branded product,
          produced and distributed via jobbers. Ultimate distribution is to the independent
          professional mechanics. Manufacturing processes will include CNC turning
          (rough and final), grinding, polishing, marking, swaging, broaching and drilling.
          Products to be manufactured will include extensions, sockets, hex bits, wrenches
          and cold chisels.

          Phase II - Projected Timing - March 1995

          Final steps of closing down this Ohio manufacturing facility and absorbing all
          remaining production operation in Texas. Products and processes will expand
          what is part of first phase. Now it will include the manufacture of adapters,
          magnetic sockets, speeders, ratchets, impact universals and sockets.

          With the completion of Phases I and II, we anticipate equipment having a value of
          approximately $3,700,000 will have been moved to our Wichita Falls facility. In
          addition, we expect the creation of approximately 170 new jobs; however, this
          will be offset by jobs being relocated to other Texas locations, netting the Wichita
          Falls facility approximately 100 jobs.

          Phase III - Project Timing - 1994

       Major investment in process equipment to produce 4” through 12” adjustable
       wrenches. Investment of this magnitude will allow us to increase capacity three
       times existing volume. This state of the art technology will allow us to become
       price competitive in the worldwide market. By becoming more competitive in the
       worldwide market, this will assure our continued growth in the volume of
       adjustable wrenches and expand our labor force.
Wichita County agreed to give Stanley declining ad valorem tax abatements on the additions and

improvements for two ten-year periods.1 The tax abatement for the Phase I and Phase III

improvements began on January 1, 1995 and continued for a period of ten years. The tax


1
    The abatement began at 100 percent the first year of the abatement period and declined by 10 percent each year.


                                                         -2-
abatement for the Phase II improvements began on January 1, 1996 and likewise continued for a

period of ten years. The Wichita Appraisal District (WAD) administered the tax abatement.

Under the Agreement, Stanley was required to provide a certificate each year containing a

general description and cost of the personal property and improvements added to the facility, and

the number of jobs created since the commencement of the improvements or the previous

certificate. Stanley had the right to protest any appraisal or assessment of the facility and any

improvements or tangible personal property, and the tax abatement would be applied to the

amount of taxes finally determined to be due following resolution of a protest.

       The Tax Abatement Agreement provided that if Stanley “fails to make the personal

property additions and improvements to the Premises which are described in this Agreement as

Phase I, II, or III, respectively, [Stanley] shall repay all property tax revenue lost by the County

as a result of this Agreement insofar as such lost tax revenue relates to the additions and

improvements described in the particular Phase, subject to any and all lawful offsets, settlements,

deductions or credits to which [Stanley] may otherwise be entitled; provided, however, the

failure to make the additions and improvements in any particular Phase shall not adversely affect

the tax abatement provided for herein with respect to any other Phase.”

       In 1994, Stanley created $1,969,108 in personal property additions to its Wichita Falls

facility attributable to Phases I and III. In 1995, it made $1,352,608 of personal property

additions to its Wichita Falls facility attributable to Phase II. From 1995 through 2001, Wichita

County and WFISD abated $220,087.54 of ad valorem tax on Stanley’s personal property that

would have been owed by Stanley in the absence of the Tax Abatement Agreement. After 2001,

Stanley stopped seeking tax exemptions and made no further personal property additions under




                                               -3-
the Agreement.         In 2002, Stanley moved its tool manufacturing operations out of Wichita

County.2

         On August 28, 2003, WFISD notified Stanley by letter that it had failed to make all of the

personal property additions to its Wichita Falls facility as required by the Agreement, and

consequently, it was obligated to pay all ad valorem tax revenue lost as a result of the Tax

Abatement Agreement.3 Stanley disagreed in a letter from its assistant general counsel. WFISD

sent a letter to Stanley on May 24, 2006 demanding payment of the ad valorem tax lost under the

Tax Abatement Agreement. Stanley did not make payment and WFISD filed suit alleging

breach of the Tax Abatement Agreement and seeking recovery of the lost ad valorem tax revenue

as damages. Stanley filed a general denial and additionally asserted that WFISD’s claims were

barred by Section 33.05 of the Texas Tax Code, laches, and estoppel.

         Following a bench trial, the court awarded judgment in favor of WFISD in the sum of

$220,087.54, pre-judgment interest in the sum of $74,251.11, and attorney’s fees in the sum of

$44,017.50. The trial court entered written findings of fact and conclusions of law.

                                     TAX CODE SECTION 33.05(A)(1)

         In its first issue, Stanley contends the suit is barred by the applicable four year statute of

limitations provided by Section 33.05(a)(1) of the Texas Tax Code. The trial court concluded

that WFISD’s suit is for breach of contract and it is not barred by limitations or laches. We

review de novo the trial court’s legal conclusions based on the findings of fact to determine their

correctness. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). If we

2
   Stanley states in its brief there is no evidence to support the trial court’s finding that Stanley left Wichita County
in 2002, but the record reflects that counsel submitted a portion of Lisa Stephens-Musick’s deposition to support an
objection to her testimony. Stephens-Musick testified that “They closed down their facility during the term of the
abatement agreement.”
3
  On June 20, 2005, WFISD and Wichita County entered into an interlocal collection agreement whereby Wichita
County appointed WFISD as its agent to pursue collection against Stanley and to file suit to enforce the Tax
Abatement Agreement.

                                                         -4-
determine a conclusion of law is erroneous but the trial court nevertheless rendered a proper

judgment, the erroneous conclusion does not require reversal. Id.

          Section 33.05(a)(1) provides that: “Personal property may not be seized and a suit may

not be filed: (1) to collect a tax on personal property that has been delinquent more than four

years.”     TEX.TAX CODE ANN. § 33.05(a)(1)(West 2008).               Stanley asserts that the Tax

Abatement Agreement required that it make the improvements under Phases I and III by 1994

and the improvements under Phase II by 1995, and therefore, any breach of the Agreement

occurred in 1994 and/or 1995. Stanley reasons that “[i]f it were true that Stanley failed to

comply with the Abatement Agreement in 1994 and/or 1995, then any unpaid personal property

taxes necessarily would have become delinquent ‘more than four years’ before this suit was filed

in November 2006.” [Emphasis in original.] WFISD responds that Section 33.05 is inapplicable

because the statute only applies to suits to collect delinquent taxes and it did not sue Stanley to

collect delinquent taxes, but rather it sought damages for Stanley’s breach of the Tax Abatement

Agreement. Whether Section 33.05 applies to a suit alleging breach of a Tax Abatement

Agreement is an issue of first impression. Further, the parties’ arguments raise an issue of

statutory construction.

          Statutory construction is a legal question that we review de novo in order to ascertain and

give effect to the Legislature’s intent. F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d

680, 683 (Tex. 2007). When construing a statute, we begin with its language. State v. Shumake,

199 S.W.3d 279, 284 (Tex. 2006). We must interpret the statute according to the plain meaning

of the language used, and must read the statute as a whole without giving effect to certain

provisions at the expense of others. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25

(Tex. 2003). Words shall be given their ordinary meaning unless a word is connected with and



                                                 -5-
used with reference to a particular trade, subject matter, or is used as a word of art, and in such a

case, the word shall have the meaning given by experts in the particular trade, subject matter, or

art. TEX.GOV’T CODE ANN. § 312.002 (West 2005). Each word, phrase, or expression must

be read as if it were deliberately chosen, and we will presume that words excluded from a

provision were excluded for a purpose.             Gables Realty Ltd. Partnership v. Travis Central

Appraisal District, 81 S.W.3d 869, 873 (Tex.App.--Austin 2002, pet. denied). We may consider

other matters in ascertaining legislative intent, including the objective of the law, its history, and

the consequences of a particular construction. See TEX.GOV’T CODE ANN. § 311.023(1), (3),

(5); Shumake, 199 S.W.3d at 284.

        The application of Section 33.05 is restricted by its terms to a suit to collect a delinquent

tax on personal property. The Tax Code does not define the term “delinquent.’ Its ordinary

meaning is a past due or unperformed obligation. BLACK’S LAW DICTIONARY 493 (9th Ed.

2009). Section 31.02 of the Tax Code, which is entitled “Delinquency Date,” provides that

“taxes are due on receipt of the tax bill and are delinquent if not paid before February 1 of the

year following the year in which imposed.” TEX.TAX CODE ANN. § 31.02(a)(1).4 Citing

Section 31.01(g), Stanley argues that the failure to send a tax bill does not affect the validity of

the tax, and therefore, the taxes sought to be recovered in this case would have been due on

February 1 of each year following the applicable tax year. See TEX.TAX CODE ANN. §

31.01(g)(West 2008 and Supp. 2011)(“Except as provided by Subsection (f), failure to send or




4
  There are exceptions to this provision which do not affect our analysis and are inapplicable here. See TEX.TAX
CODE ANN. § 31.02(b)(providing the delinquency date for an eligible person serving on active duty in any branch
of the United States armed forces); TEX.TAX CODE ANN. § 31.03 (providing the delinquency date for a person
who makes a split payment of taxes); TEX.TAX CODE ANN. § 31.04 (providing for the postponement of the
delinquency date).

                                                     -6-
receive the tax bill required by this section, . . . does not affect the validity of the tax, penalty, or

interest, the due date, the existence of a tax lien, or any procedure instituted to collect a tax.”).5

         The terms of the Agreement required Stanley to repay all lost property tax revenue if it

failed to make the personal property additions and improvements under Phases I, II, and III. By

its suit, WFISD sought to recover the amount of taxes which had been abated by virtue of the

Tax Abatement Agreement from 1995 through 2001 because it contended, and the trial court

found, that Stanley breached the Agreement by failing to make all of the required improvements

and additions. It is undisputed that Wichita County and WFISD did not impose the abated taxes

during either ten-year abatement period.              Consequently, the abated taxes were not due on

February 1 of each tax applicable tax year and the taxes did not become delinquent. We

conclude that WFISD’s suit is not a suit to collect delinquent taxes, and therefore, Section

33.05’s limitations period is inapplicable. We overrule Issue One.

                                                    LACHES

         In its second issue, Stanley argues that WFISD’s claims are barred by laches as a matter

of law.6

                                                      Waiver

         WFISD maintains that Stanley waived this issue because it failed to request findings on

the essential elements of this affirmative defense.                     Laches is an affirmative defense.

TEX.R.CIV.P. 94. Therefore, it was Stanley’s burden to plead, prove, and secure findings on its

defense. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988). A party asserting


5
  Under subsection (f), a collector may provide that a tax bill not be sent until the total amount of unpaid taxes the
collector collects on the property for all taxing units the collector serves is $15 or more. TEX.TAX CODE ANN. §
31.01(f).
6
    Stanley asserts in Issue Six that it conclusively established that WFISD’s suit is barred by the statute of
limitations, laches, and estoppel. Our discussion of Issue Two includes the portion of Issue Six addressing the
affirmative defense of laches.

                                                        -7-
an affirmative defense in a trial before the court must request findings in support of the defense

to avoid waiver. Cooper v. Cochran, 288 S.W.3d 522, 531 (Tex.App.--Dallas 2009, no pet.);

Cotten v. Weatherford Bancshares, Inc., 187 S.W.3d 687, 708 (Tex.App.--Fort Worth 2006, pet.

denied). If the trial court’s findings do not include any of the elements of the defense asserted,

the party must specifically request additional findings relevant to the defense. Cooper, 288

S.W.3d at 531. The trial court’s findings of fact did not include any elements of laches, but

Stanley made a request for amended or additional findings that WFISD had the legal or equitable

right to assert the claims made in this suit, it unreasonably delayed asserting its claims for almost

twelve years after the alleged breach, and the delay impaired Stanley’s ability to defend against

the claim or to ascertain the true facts. We find that Stanley preserved the issue.

                                        Elements of Laches

        Generally, laches is an affirmative defense comprised of two elements: (1) a party’s

unreasonable delay in asserting a legal or equitable right; and (2) a good faith and detrimental

change of position due to the delay. Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 80 (Tex.

1989); In the Matter of the Estate of Romancik, 281 S.W.3d 592, 597 (Tex.App.--El Paso 2008,

no pet.).

                                        Standard of Review

        Findings of fact in a bench trial have the same force and dignity as a jury’s verdict upon

questions and are reviewed for legal and factual sufficiency of the evidence by the same

standards. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Anderson v. City of Seven Points,

806 S.W.2d 791, 794 (Tex. 1991). The findings are not conclusive when, as in this case, a

complete reporter’s record appears in the record. Tierra Sol Joint Venture v. City of El Paso, 311

S.W.3d 492, 498 (Tex.App.--El Paso 2009, no pet.).             We review the trial court’s legal



                                                -8-
conclusions de novo. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.

2002).

          When a party attacks the legal sufficiency of an adverse finding on an issue on which it

has the burden of proof, it must demonstrate on appeal that the evidence establishes, as a matter

of law, all vital facts in support of the issue. Dow Chemical Company v. Francis, 46 S.W.3d

237, 241 (Tex. 2001); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). The

reviewing court first examines the record for evidence that supports the finding, while ignoring

all evidence to the contrary. Dow Chemical, 46 S.W.3d at 241. If there is no evidence to support

the finding, the reviewing court will then examine the entire record to determine if the contrary

proposition is established as a matter of law. Id. To prevail on appeal, Stanley must demonstrate

that the evidence conclusively established all vital facts in support of the affirmative defense of

laches.

                                           Review of the Evidence

          It is unnecessary to review the first element because Stanley failed to conclusively

establish the second element of its laches defense. Stanley’s sole argument is that evidence was

lost and “witnesses had scattered” due to the passage of time. Stanley does not argue that it

made a good faith and detrimental change of position due to the delay. It instead contends that

when the delay is such that the defendant’s ability to defend against the claim is impaired, then

the plaintiff’s claim should be barred. In support of its position, Stanley cites De Benavides v.

Warren, 674 S.W.2d 353, 362 (Tex.App.--San Antonio 1984, writ ref’d n.r.e.), which in turn

cited Pearson v. American Fidelity & Casualty Company, 321 S.W.2d 620 (Tex.Civ.App.--

Amarillo 1959, writ ref’d n.r.e.)7 and Brady v. Garrett, 66 S.W.2d 502 (Tex.Civ.App. --El Paso


7
   In Pearson, 321 S.W.2d at 622, the Amarillo Court of Civil Appeals stated that: “Laches is not mere delay in
bringing an action, but each delay working disadvantage to another, and operates as estoppel against assertion of a

                                                       -9-
1933, writ dism’d).8 Assuming for the sake of argument that evidence of an impaired ability to

defend can satisfy the second element, we conclude that Stanley failed to prove this element as a

matter of law.

         Lisa Stephens-Musick has been the deputy chief appraiser for the Wichita Appraisal

District since 1999 and she is the custodian of the appraisal district’s records. The evidence

showed that WAD, in accordance with its records retention plan, destroyed the original

renditions of personal property submitted by Stanley five years after each applicable tax year.

Stanley did not offer any evidence to explain why it did not have copies of the renditions it had

filed. Under the Agreement, Stanley had the right to protest any appraisal of the personal

property, but there is no evidence that Stanley ever protested any of the valuations for the tax

years in question. One inference to be drawn from this evidence is that Stanley accepted the

valuations at the time they were made. Stanley does not direct our attention to where in the

record it established that witnesses could not be located due to the delay nor is there any

evidence indicating the substance of the witnesses’ expected testimony. Stanley’s bare claims

that the renditions had been destroyed and witnesses had scattered do not conclusively prove that

Stanley’s ability to defend was impaired or that it made a good faith and detrimental change of

position as a result of the delay. Issue Two is overruled.




right only when a party, knowing his rights, takes no steps to enforce them until condition of other party has, in good
faith, become so changed that he cannot be restored to former state.”
8
   In Brady, the Eighth Court of Civil Appeals stated that “laches in legal significance is not mere delay, but delay
that works a disadvantage to another.” Brady, 66 S.W.2d at 505.


                                                        - 10 -
                                           QUASI-ESTOPPEL

        In its third issue, Stanley contends that WFISD’s claims are barred by quasi-estoppel as a

matter of law.9 Quasi-estoppel precludes a party from asserting, to another’s disadvantage, a

right inconsistent with a position previously taken. Lopez v. Munoz, Hockema & Reed, L.L.P.,

22 S.W.3d 857, 864 (Tex. 2000). The doctrine applies when it would be unconscionable to

allow a person to maintain a position inconsistent with one to which he acquiesced, or from

which he accepted a benefit. Id.

                                                    Waiver

        WFISD maintains that Stanley waived this issue because it failed to request findings on

the essential elements of this affirmative defense. Quasi-estoppel is an affirmative defense.

Clark v. Cotten Schmidt, L.L.P., 327 S.W.3d 765, 770 (Tex.App.--Fort Worth 2010, no pet.);

TEX.R.CIV.P. 94. Therefore, it was Stanley’s burden to plead, prove, and secure findings on its

defense. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988). The trial court’s

findings of fact did not address any elements of quasi-estoppel, and Stanley’s request for

amended or additional findings did not include the elements of this defense. Consequently,

Stanley waived this issue. Issue Three is overruled.

                     DIVISIBLE CONTRACT AND LEGAL SUFFICIENCY

        In its fourth and fifth issues, Stanley contends that the Tax Abatement Agreement is a

divisible contract and WFISD failed to prove that Stanley did not comply with its obligations in

Phases I, II, or III and it failed to prove the amount of lost tax revenue related to the additions

and improvements in each Phase.



9
    Stanley asserts in Issue Six that it conclusively established that WFISD’s suit is barred by the statute of
limitations, laches, and estoppel. Our discussion of Issue Three includes the portion of Issue Six addressing the
affirmative defense of quasi-estoppel.

                                                     - 11 -
                               Standard of Review and Relevant Law

       In construing a contract, a court must ascertain the true intentions of the parties as

expressed in the writing itself. Italian Cowboy Partners, Ltd. v. Prudential Insurance Company

of America, 341 S.W.3d 323, 333 (Tex. 2011); J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223,

229 (Tex. 2003). In identifying the parties’ intent, “we must examine and consider the entire

writing in an effort to harmonize and give effect to all the provisions of the contract so that none

will be rendered meaningless.” Italian Cowboy, 341 S.W.3d at 333, quoting J.M. Davidson, 128

S.W3d at 229. We begin this analysis with the contract’s express language. Italian Cowboy, 341

S.W.3d at 333. If the written instrument is so worded that it can be given a certain or definite

legal meaning or interpretation, then it is not ambiguous and the court will construe the contract

as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). If, on the other hand, the

contract is subject to two or more reasonable interpretations after applying the pertinent rules of

construction, the contract is ambiguous, creating a fact issue on the parties’ intent.            J.M.

Davidson, 128 S.W.3d at 229. In such a case, a court may consider the parties’ interpretation

and admit extraneous evidence to determine the true meaning of the instrument. Italian Cowboy,

341 S.W.3d at 333-34.

       The divisible or indivisible nature of a contract cannot be ascertained by any one test or

rule of law. Johnson v. Walker, 824 S.W.2d 184, 187 (Tex.App.--Fort Worth 1991, writ denied);

St. John v. Barker, 638 S.W.2d 239, 243 (Tex.App.--Amarillo 1982), aff’d, 645 S.W.2d 261

(Tex. 1983). Determination of the issue depends primarily on the intention of the parties, the

subject matter of the agreement, and the conduct of the parties. Johnson, 824 S.W.2d at 187; St.

John, 638 S.W.2d at 243. If there is a single assent to a whole transaction involving several

things, a contract is entire, but if there is a separate assent to each of the several things involved,



                                                - 12 -
it is divisible. Johnson, 824 S.W.2d at 187; St. John, 638 S.W.2d at 243. A contract is divisible

when the performance by one party consists of several distinct and separate items and the price

paid by the other party is apportioned to each item. Johnson, 824 S.W.2d at 187; Hamilton v.

Texas Oil & Gas Corporation, 648 S.W.2d 316, 320 (Tex.App.--El Paso 1982, writ ref’d n.r.e.),

disapproved on other grounds, Valence Operating Company v. Dorsett, 164 S.W.3d 656, (Tex.

2005).

                                    The Intention of the Parties

         We begin by examining the intent of the parties as expressed in the contract. In support

of its argument that the contract is divisible into three parts, Stanley first focuses on the language

found in Section 2.1 of the Tax Abatement Agreement that: “The improvements contemplated

by [Stanley] will consist of 3 Phases as more fully described in the attached Exhibit B.” Phase I

was projected to take place in June through December 1994 and involved the manufacture of

“Mac” Tool branded products. The description of Phase I does not make any reference to

personal property improvements or additions. During Phase II, which was projected to occur in

March 1995, Stanley would close down its Ohio facility and absorb all remaining production in

the Wichita Falls facility. Exhibit B further described Phase II as an expansion of Phase I and it

stated that with the completion of Phases I and II, Stanley anticipated that equipment with a

value of approximately $3.7 million would have been moved to its Wichita Falls facility. Phase

III was expected to take place in 1994 and would involve a “[m]ajor investment in process

equipment” to produce adjustable wrenches. Stanley anticipated that the investment in Phase III

would allow it to increase capacity three times the existing volume.             Section 4.4 of the

Agreement provides the strongest indication that the parties intended to create a divisible

contract. That section provides, in relevant part, that:



                                                - 13 -
       If [Stanley] fails to make the personal property additions and improvements to the
       Premises which are described in this Agreement as Phase I, II, or III, respectively,
       [Stanley] shall repay all property tax revenue lost by the County as a result of this
       Agreement insofar as such lost tax revenue relates to the additions and
       improvements described in the particular Phase, subject to any and all lawful
       offsets, settlements, deductions or credits to which [Stanley] may otherwise be
       entitled; provided, however, the failure to make the additions and improvements
       in any particular Phase shall not adversely affect the tax abatement provided for
       herein with respect to any other Phase.

Section 4.4 plainly contemplates that the additions and improvements would be assigned to the

relevant phase and the failure to accomplish one phase would not result in a loss of the tax

abatement due under another phase.

       WFISD argues that there are other provisions in the Agreement which reflect that the

parties intended to create an indivisible contract. First, the Agreement does not provide for a

separate tax abatement period for each Phase. Section 3.1(a) and (b) of the Agreement provides

for only two abatement periods: there is a ten-year abatement period for the Phase I and III

improvements (January 1, 1995 through January 1, 2005) and another for the Phase II

improvements (January 1, 1996 through January 1, 2006). One reasonable interpretation of

Section 3.1 is that the parties agreed to create only two abatement periods because Phases I and

III were intended to begin in 1994 and Phase II would not commence until 1995. The creation of

only two abatement periods does not reflect an intent for the contract to be indivisible.

       WFISD also points to Section 5.1 of the Agreement as evidence that the agreement is

indivisible. Section 5.1 addresses the sale, assignment, or lease of the property in question. That

section provides that the tax abatement would “vest in [Stanley] upon substantial completion of

the personal property additions and improvements described in Section 2.1 . . .” but the tax

abatement was not “assignable to any new owner or lessee of all or any portion of the Premises

without the prior written approval of the County.” WFISD is correct that the section does not



                                               - 14 -
provide that the tax abatement would vest upon substantial completion of the additions and

improvements described in each phase. It is logical for the parties to agree that the tax abatement

would not be assignable unless Stanley had substantially completed the entire undertaking. We

do not read this provision as evidencing an intention to create an indivisible contract.

       After reading the entire Agreement, we conclude that the parties intended to create a

divisible contract. Any other conclusion would render Section 4.4 meaningless.

                               Legal Sufficiency Standard of Review

       On appeal, a legal sufficiency or “no evidence” challenge will be sustained if the party

suffering the adverse decision at trial shows: (1) the complete absence of a vital fact; (2) the

court is barred by rules of law or evidence from giving weight to the only evidence offered to

prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4)

the evidences establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168

S.W.3d 802, 810 (Tex. 2005); El Paso Independent School District v. Pabon, 214 S.W.3d 37, 41

(Tex.App.--El Paso 2006, no pet.). When conducting a legal sufficiency review, we must view

the evidence in the light favorable to the verdict, crediting favorable evidence if a reasonable

factfinder could, and disregarding contrary evidence unless a reasonable factfinder could not.

City of Keller, 168 S.W.3d at 830. The final test for legal sufficiency must always be whether

the evidence at trial would enable reasonable and fair-minded people to reach the verdict under

review. City of Keller, 168 S.W.3d at 827.

                             Failure to Perform under Phases I and II

       The trial court concluded that in Phases I and II, Stanley was to move equipment valued

at approximately $3,700,000 to its Wichita Falls facility for the manufacture of extensions,

sockets, hex bits, wrenches, cold chisels, adapters, magnetic sockets, speeders, ratchets, and



                                                - 15 -
impact universals.    WFISD introduced evidence that in 1994 Stanley made $1,969,108 of

personal property additions to its Wichita Falls facility attributable to Phases I and III. Lisa

Stephens-Musick, the custodian of the appraisal district’s records, testified that Phases I and III

were included together in a single abatement account while Phase II was in a second account.

Consequently, the personal property additions attributable strictly to Phase I are not separated

from Phase III. In 1995, Stanley made $1,352,608 of personal property additions to its Wichita

Falls facility attributable to Phase II. Given that the total value of personal property additions

attributable to all three phases was $3, 321,716, the evidence is legally sufficient to show that

Stanley failed to perform its obligations under Phases I and II.

                                Failure to Perform under Phase III

       Phase III required Stanley to make a major investment in process equipment to produce

adjustable wrenches. There is no evidence that Stanley failed to fulfill its obligation under Phase

III.

                                     Amount of the Recovery

       The evidence showed that WFISD and Wichita County abated a total of $220,087.54 of

ad valorem tax on Stanley’s personal property that would have been owed but for the Tax

Abatement Agreement. This figure included the abated taxes related to all three phases because

the Phase I personal property additions were not separated from the Phase III additions. Under

Section 4.4 of the Agreement, WFISD is only entitled to recover the lost property tax revenue

related to the personal property additions and improvements made under Phases I and II. It is not

entitled to recover the taxes abated for the improvements and additions made under Phase III.

       With respect to the Phase II improvements and additions, the evidence showed that from

1995 to 2001 Stanley would have paid $69,776.78 to WFISD and $18,149.73 to Wichita County



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for a total of $87,926.51 in abated taxes. Thus, the evidence is legally sufficient to support an

award of damages in this amount.

       WFISD had the burden to prove the amount of taxes abated for the improvements and

additions made under Phase I. The evidence does not show the amount of taxes abated for the

improvements and additions attributable to Phase I because the appraisal district created a single

account for Phases I and III. The evidence shows that Stanley would have paid taxes in the

amount of $104,478.28 to WFISD and $27,682.75 to Wichita County but these amounts are a

combination of the taxes abated under Phases I and III. It is impossible to tell what personal

property additions and improvements related only to Phase I and there is no evidence that all of

the additions related to both Phases. We conclude that the evidence is legally insufficient to

support an award of damages for the full amount of taxes abated under Phases I and III. To this

extent, Issues Four and Five are sustained.

                   ADDITIONAL OR AMENDED FINDINGS OF FACT

       In the portion of its brief listing the issues presented by the appeal, Stanley includes a

seventh issue which asks whether the trial court erred in failing to make Stanley’s requested

additional or amended findings of fact and conclusions of law. The brief does not include any

argument or authorities in support of this issue. Consequently, we find that the issue has been

waived because it has been inadequately briefed. See TEX.R.APP.P. 38.1(i); Ashley Furniture

Industries Inc. ex rel. RBLS Inc. v. Law Office of David Pierce, 311 S.W.3d 595, 597 (Tex.App.-

-El Paso 2010, no pet.).

                                     ATTORNEY’S FEES

       In its eighth issue, Stanley challenges the award of attorney’s fees. First, Stanley asserts

that WFISD is not entitled to any attorney’s fees because it should take nothing on its breach of



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contract claim. This argument is without merit because we have overruled Issues One through

Three and we have concluded in Issues Four and Five that WFISD sustained its burden of

proving that Stanley breached the Tax Abatement Agreement by failing to fully perform Phases I

and II. Second, Stanley contends that the award of appellate attorney’s fees is erroneous because

the award is not conditioned on Stanley’s appeal being unsuccessful. WFISD concedes that

Stanley is correct regarding the award of appellate attorney’s fees. Accordingly, we sustain this

part of Issue Eight. See A.G. Edwards & Sons, Inc. v. Beyer, 235 S.W.3d 704, 707 n.1 (Tex.

2007); Gilbert v. City of El Paso, 327 S.W.3d 332, 337 (Tex.App.--El Paso 2010, no pet.).

                     DENIAL OF MOTION FOR SUMMARY JUDGMENT

       In its final issue, Stanley contends that the trial court erred by denying its motion for

summary judgment. Stanley acknowledges that this issue cannot be sustained under current

Texas law. See e.g., Horton v. Horton, 965 S.W.2d 78, 88 (Tex.App.--Fort Worth 1998, no

pet.)(stating rule that where a motion for summary judgment is denied by the trial judge and the

case is tried on its merits, the order denying the motion for summary judgment is not reviewable

on appeal); Gem Homes, Inc. v. Contreras, 861 S.W.2d 449, 453 (Tex.App.--El Paso 1993, writ

denied)(same). Stanley states that it is raising the issue in good faith in order to preserve its

contention that the Texas Supreme Court should overrule current law forbidding review of a trial

court’s order denying a motion for summary judgment after the case is tried on the merits. Issue

Nine is overruled.

       Having sustained Issues Four and Five in part, we reverse that portion of the judgment

awarding WFISD damages in the amount of $220,087.54 and pre-judgment interest in the sum of

$74,251.11. Having sustained Issue Eight in part, we reverse that portion of the judgment

awarding appellate attorney’s fees without making it contingent on an unsuccessful appeal by



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Stanley. Having overruled the other issues, we affirm the remaining portion of the judgment.

We remand the cause to the trial court for entry of judgment in accordance with this opinion.



April 25, 2012                       ________________________________________________
                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.




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