                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00157-CV


LESIKAR OIL AND GAS CO.                                            APPELLANT

                                       V.

LEGEND SWABBING, LLC                                                APPELLEE


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

          FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

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

                        MEMORANDUM OPINION1

                                    ----------

      Appellant Lesikar Oil and Gas Co. (the Company) appeals from the trial

court’s judgment in favor of Appellee Legend Swabbing, LLC (Legend) on

Legend’s suit for breach of contract and against the Company on its

counterclaims. In three issues, the Company argues that the trial court erred by

holding that Legend had no liability for the services of subcontractors used to

perform work that Legend was contractually obligated to perform; by holding that
      1
      See Tex. R. App. P. 47.4.
Legend fully performed under the contract; by refusing to hold that Legend failed

to perform in a good and workmanlike manner; by failing to find that the

Company had incurred $26,475.64 in expenses as a result of Legend’s failure to

perform in a good and workmanlike manner; and alternatively, by issuing findings

of fact numbers 17 and 22. The Company also challenges the sufficiency of the

evidence to support those findings. Because we hold that the trial court did not

err, we affirm the trial court’s judgment.

I. Background Facts and Procedural History

      The Company, which is owned by Lynwood Lesikar, operates the Dalworth

No. 1 well in Parker County (the well). In May 2007, the Company hired Legend

to repair a casing leak in the well after an independent contractor, Dale Lee,

informed Lesikar that he suspected that the well had a leak. Lee introduced

Lesikar to Gary Gardner, owner of Legend. The parties entered into a master

service contract, which sets out insurance and indemnity requirements for the

parties but does not specify the work Legend agreed to perform. Lesikar agreed

to pay Legend $265 an hour for its work.

      Prior to the repair work, Lesikar met with Gardner and gave him various

notes about the condition of the well and possible location of the leak. Lesikar

testified that as part of this conversation, he had informed Gardner that the well

had previously had two or three squeeze jobs done, some of which had failed.

Gardner testified that it was obvious that the casing had been squeezed several

times. A squeeze job is a process by which cement is pumped into the pipe and


                                             2
pushed through holes in the casing. This process, in addition to repairing casing

holes, creates a cement barrier between the casing and the area outside the

casing. Before injecting the cement into the casing, a removable bridge plug is

placed in the pipe below the area to be repaired. Sand is placed on top of the

bridge plug to protect it from the cement. After the cement is injected, water is

pumped into the well to push down the cement. The well is then ―squeezed‖ to

push on the cement, pushing the water out of the cement and dehydrating it.

Once the cement has set, the cement in the casing is drilled out. The mud

created by this process is circulated out of the casing so that the plug can be

retrieved. A cement retainer may be used in the process; a cement retainer is ―a

device that . . . you pump through to get cement through it‖ to create an area

between the plug and the retainer into which the cement is pumped.

      Legend repaired the leak by performing three squeeze jobs on the well.

The first two squeeze jobs that Legend completed did not fix the casing leak. At

trial, the parties disagreed about who was at fault for the failure of the first two

attempts. Legend argued that for the first attempt, the cement company, Basic

Energy Services (Basic), did not keep pressure on the well. Lesikar argued that

the problem was the location of the retainer. A Basic employee testified that

keeping pressure on the squeeze job would have defeated the squeeze because

of the location of the retainer. As for the second attempt, Gardner testified that

the squeeze failed because Basic made incorrect cement calculations, resulting




                                         3
in too little cement being used. A Basic employee testified that Gardner told him

how much cement to use on the job.

         Basic employee Billy Raines testified that squeeze jobs could take multiple

attempts to achieve success without anyone doing anything wrong. Lee testified

that Gardner did not do anything wrong on the squeeze jobs. Jack Bradshaw, an

expert called by the Company, agreed that everyone can do everything right on

the first squeeze but it can still fail, and Bradshaw could not name anything that

Gardner had done wrong.

         The third squeeze job repaired the casing leak. Within a week, however,

the pump became clogged and stopped working. At trial, the parties disputed

whether the clog occurred because Legend did not circulate the well with water

after completing the third squeeze job.         The parties presented conflicting

testimony about whether circulation with water is necessary.

         Legend billed the Company for its services, and Lesikar refused to pay.

Lesikar disputed the charges on the grounds that Legend had charged the

Company for work that did not need to be done (such as swabbing and acidizing)

and that some of the charges were for repairing holes caused by Legend rather

than the casing leak that it had been hired to repair.

         Legend sued the Company for breach of contract due to Lesikar’s failure to

pay the invoices. The Company filed a countersuit for breach of contract and

fraud.     The Company alleged that Legend’s representations in the service

agreement that it had adequate equipment and fully trained personnel capable of


                                          4
performing services were false and a deceptive trade practice. The Company

also alleged that Legend’s work was substandard.

      The case was tried to the bench. At trial, Gardner testified that he had

followed Lesikar’s orders in repairing the leak and that Legend did not have

responsibility for the work performed by the service providers (such as Basic)

who had provided work or equipment on the job. Gardner also testified that his

understanding was that Lee was his supervisor on the job.

      The Company disputed that Lee had any supervisory capacity on the job.

The Company argued that Legend was responsible for the work done on the

repair job and could not delegate its responsibility to other providers.

      At the conclusion of the bench trial, the trial court rendered judgment for

Legend and ordered that it recover damages of $58,565 and stipulated attorney’s

fees. The judgment ordered that the Company take nothing on its counterclaims.

      The Company requested the trial court to enter findings of fact and

conclusions of law. The trial court subsequently notified the parties to submit

proposed findings and conclusions by April 12, 2010. Legend complied with this

instruction, but Lesikar did not. On April 16, 2010, the trial court entered findings

of fact and conclusions of law:

                                    Findings of Fact

      ....

      2.     [The Company] is the operator of the . . . Well.

      3.     [Legend] was contracted by [the Company] to repair a casing
             leak(s) in the . . . Well.

                                          5
....

5.     [Legend] performed three squeeze jobs and one acid job on
       the . . . well to fix the casing leak(s).

6.     [Basic] was contracted to perform the cement work on the
       squeeze jobs as well as the acid job on the . . . well.

7.     [Legend] maintained the failure of the first squeeze job was
       the fault of [Basic] for not keeping pressure on the squeeze
       job.

8.     . . . Dale Lee[] also maintained the failure of the first squeeze
       job was the fault of [Basic] for not keeping pressure on the
       squeeze job.

9.     [Legend] maintained the failure of the second squeeze job
       was the fault of [Basic] for the substandard quality of its
       cement.

10.    . . . Dale Lee[] also maintained the failure of the second
       squeeze job was the fault of [Basic] for the substandard
       quality of its cement.

11.    [Basic] billed [the Company] the following invoices:

       a.    $5,285.41 — 1st squeeze job on 6/1/07

       b.    $3,414.12 — 2nd squeeze job on 6/5/07

       c.    $1,654.86 — Acid job on 6/11/07

       d.    $4,165.66 — 3rd squeeze job on 6/12/07

12.    [The Company] did not pay [Basic] for the acid job . . . or the
       3rd squeeze job. . . .

13.    [Basic’s] ledger sheet for [the Company] shows a credit for the
       acid job . . . and the 3rd squeeze job. . . .

14.    [Legend] completed work on June 21, 2007.

15.    [Legend] billed [the Company] for its work through two
       invoices, No. 903 in the amount of $28,355.00 and No. 904 in
       the amount of $30,210.00 for a job total of $58,565.00.



                                   6
16.   [Legend’s] hourly rate was $265.00 and L.W. Lesikar agreed
      that was a reasonable rate.

17.   [The Company] through its owner L.W. Lesikar and a pumper,
      Dale Lee, employed by [the Company,] were overseeing work
      performed by [Legend].

18.   [Legend], through its manager Gary Gardner, was in constant
      contact with L.W. Lesikar and/or Dale Lee through completion
      of said work either in person or by telephone.

19.   [Legend], through its manager Gary Gardner, provided
      evidence of 77 telephone calls to or from L.W. Lesikar and 96
      telephone calls to or from Dale Lee through completion of the
      work on the . . . well.

20.   All witnesses, including two employees from [Basic], who were
      called to tes[tify] on behalf of [the Company] as well [as] its
      expert Jack Bradshaw stated that it can take numerous
      squeeze jobs to fix a casing leak.

21.   All witnesses, including two employees from [Basic], who were
      called to tes[tify] on behalf of [the Company] as well [as] its
      expert Jack Bradshaw stated that everyone can do everything
      right on a squeeze job and it still not be successful even after
      several attempts.

22.   L.W. Lesikar or his pumper, Dale Lee, were at the job site and
      had the ultimate responsibility to order [Legend] or any other
      subcontractor to alter the plan of operation that was proposed
      for repair of the casing leak.

23.   The ―contract‖ for services gives no particular guidance for the
      services rendered other than representations that [Legend]
      ―has adequate equipment in good working order and fully
      trained personnel capable of efficiently operating such
      equipment and performing services for Contractor[.‖]

24.   During the entire period of time [Legend] made repairs to
      the . . . well, it had adequate equipment which was in good
      working order.

25.   During the entire period of time[, Legend] had fully trained
      personnel capable of efficiently operating such equipment and



                                  7
      performing the services for which it contracted with [the
      Company].

26.   The job assignment was to repair the casing leak and
      [Legend] completed the assignment.

27.   [The Company]’s complaint was that [Legend] took too long
      and did not use the methods [L.W. Lesikar] would have used.

28.   The contract did not have specifications for time and method.

29.   [Legend] incurred reasonable and necessary attorney’s fees of
      $21,000.00.

             Findings of Fact as Conclusions of Law

1.    Any finding of fact that is a conclusion of law shall be deemed
      a conclusion of law.

                        Conclusions of Law

1.    [Legend] and [the Company] entered into a master service
      contract.   The contract for services gives no particular
      guidance for the services rendered other than representations
      that [Legend] has adequate equipment in good working order
      and fully trained personnel capable of efficiently operating
      such equipment and performing services for contractor. The
      job assignment was to repair the casing leak and [Legend]
      completed the assignment.

2.    [Legend] fully performed its contractual obligations to [the
      Company] under the contract.

3.    [The Company] breached its obligations under the contract by
      its failure to pay for [Legend]’s services upon completion of the
      job.

4.    A breach of contract entitles the non-breaching party [Legend]
      to recover from the breaching party [the Company] an
      additional amount of monies as compensation for the expense
      of retaining an attorney in the litigation. The reasonable and
      necessary attorney’s fees by [Legend] were $21,000.00.




                                  8
The Company requested amended and additional findings of fact, which the trial

court denied, stating as its reason that Lesikar had failed to comply with the April

12 deadline.


II. Standards of Review

      Findings of fact are the exclusive province of the factfinder.2 In a bench

trial, they have the same force and dignity as a jury=s answers to jury questions.3

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.4

      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.5

      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred

      2
         Bellefonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 744–45 (Tex.
1986).
      3
         Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991).
      4
       McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); Rischon Dev.
Corp. v. City of Keller, 242 S.W.3d 161, 166 (Tex. App.—Fort Worth 2007, pet.
denied), cert. denied, 129 S. Ct. 501 (2008).
      5
      Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel, 881
S.W.2d 295, 297 (Tex. 1994).


                                         9
by rules of law or of 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

mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital

fact.6 In determining whether there is legally sufficient evidence to support the

finding under review, we must consider evidence favorable to the finding if a

reasonable factfinder could and disregard evidence contrary to the finding unless

a reasonable factfinder could not.7 If a party is attacking the legal sufficiency of

an adverse finding on an issue on which the party had the burden of proof, and

there is no evidence to support the finding, we review all the evidence to

determine whether the contrary proposition is established as a matter of law.8

      When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and weighing

all of the evidence in the record pertinent to that finding, we determine that the

credible evidence supporting the finding is so weak, or so contrary to the

overwhelming weight of all the evidence, that the answer should be set aside and




      6
        Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),
cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence" and
"Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960).
      7
        Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007);
City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).
      8
      Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); Sterner v.
Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).


                                        10
a new trial ordered.9 When the party with the burden of proof appeals from a

failure to find, the party must show that the failure to find is against the great

weight and preponderance of the credible evidence.10

      When conducting a factual sufficiency review, a court of appeals must not

merely substitute its judgment for that of the trier of fact. 11 The trier of fact is the

sole judge of the credibility of witnesses and the weight to be given to their

testimony.12

      A court of appeals cannot make original findings of fact; it can only ―unfind‖

facts.13 Conclusions of law may not be challenged for factual sufficiency, but

they may be reviewed to determine their correctness based upon the facts.14




      9
      Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh’g);
Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
      10
       Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex. 1988); see
Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680, 681–82 (Tex. 2006).
      11
          Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.
2003).
      12
          Id.
      13
       Tex. Nat=l Bank v. Karnes, 717 S.W.2d 901, 903 (Tex. 1986); Inimitable
Group, L.P. v. Westwood Group Dev. II, Ltd., 264 S.W.3d 892, 898 (Tex. App.—
Fort Worth 2008, no pet.).
      14
       AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506, 519 (Tex.
App.—Fort Worth 2009, no pet.) (op. on reh=g); Dominey v. Unknown Heirs &
Legal Reps. of Lokomski, 172 S.W.3d 67, 71 (Tex. App.—Fort Worth 2005, no
pet.).


                                           11
III. Legend’s Alleged Liability for the Services of Subcontractors

      In its first issue, the Company argues that the trial court erred by holding

that Legend had no liability for the services of subcontractors used to perform

work that Legend was contractually obligated to provide to the Company

because, as a matter of law, Legend could not delegate responsibility for the

repair of the casing leak when the Company did not consent. Alternatively, the

Company contends that the trial court’s finding that Legend was not liable for

Basic’s services is against the great weight and preponderance of the evidence.

We first note that the trial court made no such explicit conclusions of law or

findings of fact. Secondly, even if Legend bore responsibility for the conduct of

the other subcontractors, a determination we do not need to make, for Legend to

have liability for Basic’s performance (or the services of any other subcontractor),

the trial court first must have determined that a subcontractor’s performance

amounted to a material breach of the contract. As the Company concedes in a

footnote, the trial court made no such determination, finding only that Legend and

Lee both blamed Basic for the failure of the two cement jobs, not that Basic was

at fault for the failure. The trial court also found that the Company’s witnesses

―stated that it can take numerous squeeze jobs to fix a casing leak‖ and that

―everyone can do everything right on a squeeze job and it still not be successful

even after several attempts.‖ As set forth above, the trial court further found,

      23.    The ―contract‖ for services gives no particular guidance for the
             services rendered other than representations that [Legend]
             ―has adequate equipment in good working order and fully


                                         12
             trained personnel capable of efficiently operating such
             equipment and performing services for Contractor[.‖]

       24.   During the entire period of time [Legend] made repairs to
             the . . . well, it had adequate equipment which was in good
             working order.

       25.   During the entire period of time[, Legend] had fully trained
             personnel capable of efficiently operating such equipment and
             performing the services for which it contracted with [the
             Company].

       27.   [The Company]’s complaint was that [Legend] took too long
             and did not use the methods [L.W. Lesikar] would have used.

       28.   The contract did not have specifications for time and method.

       The Company has not challenged any of these findings, and there is

evidence to support them.15 The contract provides no specifications regarding

the type of work Legend was to perform.           It does provide the following,

―Subcontractor [Legend] represents that it has adequate equipment in good

working order and fully trained personnel capable of efficiently operating such

equipment and performing services for Contractor [the Company].‖          Gardner

warned Lesikar before beginning the job that because of the well’s history and

age, ―this was a high risk squeeze . . . that . . . very possibly could take two to

three times to squeeze it off.‖ Lee testified that Gardner did not do anything

wrong on the squeeze jobs.         Bradshaw agreed with a Basic employee’s

testimony that everyone can do everything right on the first squeeze but it can


       15
        See McGalliard, 722 S.W.2d at 696; Rischon Dev. Corp., 242 S.W.3d at
166.


                                        13
still fail and could not name anything that Gardner had done wrong.                 Basic

employee Billy Raines testified,

       Q.    And down in that hole, there’s no—a person wouldn’t want to
             bet, would he, that the first time you do a squeeze job, it’s
             going to work?

       A.    No. A person wouldn’t want to bet.

       Q.    Based on your experience, have you been on other jobs
             where sometimes it’s taken two, three, maybe as many as half
             a dozen times to prepare—or to repair a hole in the casing?

       A.    Yes.

       Q.    All right. So it’s not unusual, is it, for it to take three times to
             repair a hole in a casing?

       A.    Correct.

       Q.    And that doesn’t necessarily mean that anybody did anything
             wrong, correct?

       A.    Correct.

       Q.    It could just be the dynamics of the hole and the geology that’s
             down there; is that right?

       A.    Yes, sir.

       Because the Company does not challenge the findings and the evidence

supports them, they are binding on us.16 We therefore hold that (1) the Company

did not establish that Basic’s performance amounted to a breach for which

Legend was liable as a matter of law and (2) the trial court’s refusal to hold

Legend liable for a breach by Basic that the trial court did not find occurred is not

       16
        See McGalliard, 722 S.W.2d at 696; Rischon Dev. Corp., 242 S.W.3d at
166.

                                          14
against the great weight and preponderance of the evidence. We overrule the

Company’s first issue.

IV. Legend’s Performance of the Contract

      In its second issue, the Company contends that the trial court erred by

holding that Legend fully performed its contractual obligations, by refusing to find

that Legend failed to perform in a good and workmanlike manner, by refusing to

find that Legend failed to perform in a good and workmanlike manner by failing to

circulate the well clean at the conclusion of the third squeeze job, and by refusing

to find that the Company incurred $26,475.64 in expenses as a result of

Legend’s failure to so circulate the well. Included in this issue are challenges to

the legal and factual sufficiency of the evidence to support the trial court’s finding

that Legend ―completed the assignment‖ and the trial court’s failure to find that

Legend did not perform in a good and workmanlike manner, as well as the

contention that the trial court’s conclusion that Legend fully performed is wrong

as a matter of law.

      The parties appear to agree that the implied warranty of good

workmanship applies here.        The Texas Supreme Court defines ―good and

workmanlike‖ as ―that quality of work performed by one who has the knowledge,

training, or experience necessary for the successful practice of a trade or

occupation and performed in a manner generally considered proficient by those




                                         15
capable of judging such work.‖17 Without holding that the implied warranty of

good workmanship applies in this case, we hold that the evidence supports any

refusal by the trial court to hold that Legend did not perform in a good and

workmanlike manner. Lesikar does not challenge these findings:

     18.    [Legend], through its manager Gary Gardner, was in constant
            contact with L.W. Lesikar and/or Dale Lee through completion
            of said work either in person or by telephone.

     19.    [Legend], through its manager Gary Gardner, provided
            evidence of 77 telephone calls to or from L.W. Lesikar and 96
            telephone calls to or from Dale Lee through completion of the
            work on the . . . well.

     ....

     23.    The ―contract‖ for services gives no particular guidance for the
            services rendered other than representations that [Legend]
            ―has adequate equipment in good working order and fully
            trained personnel capable of efficiently operating such
            equipment and performing services for Contractor[.‖]

     24.    During the entire period of time [Legend] made repairs to
            the . . . well, it had adequate equipment which was in good
            working order.

     25.    During the entire period of time[, Legend] had fully trained
            personnel capable of efficiently operating such equipment and
            performing the services for which it contracted with [the
            Company].

     ....

     27.    [The Company]’s complaint was that [Legend] took too long
            and did not use the methods [L.W. Lesikar] would have used.

     28.    The contract did not have specifications for time and method.

     17
       Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 354 (Tex. 1987).


                                       16
      The Company contends that Legend’s placement of the retainer below the

casing leak and top set of perforation holes breached the implied warranty of

performance in a good and workmanlike manner, yet the Company’s contention

appears to be based solely on Lesikar’s conclusions drawn from a crude drawing

by Gardner that the parties agreed was not drawn to scale. Further, to the extent

that the placement of the retainer was below the casing leak and the top set of

perforation holes, such placement nonetheless ultimately worked because the

leak was fixed.

      Gardner warned Lesikar before beginning the job that because of the

well’s history and age, ―this was a high risk squeeze . . . that . . . very possibly

could take two to three times to squeeze it off.‖ In addition to denying that he

had had anything to do with perforating additional holes, Gardner gave detailed

testimony explaining each step that he took on the job and why. He also testified

about his extensive experience in the industry, the experience of the workers

who helped him on the job, and the quality of his equipment. Finally, he testified

that he believed that he had performed the work in a good and workmanlike

manner.

      Lee also testified extensively about the steps taken to complete the job.

Lee testified that Gardner did not do anything wrong on the squeeze jobs. Basic

employee Billy Raines testified,

      Q.    And down in that hole, there’s no—a person wouldn’t want to
            bet, would he, that the first time you do a squeeze job, it’s
            going to work?


                                        17
      A.    No. A person wouldn’t want to bet.

      Q.    Based on your experience, have you been on other jobs
            where sometimes it’s taken two, three, maybe as many as half
            a dozen times to prepare—or to repair a hole in the casing?

      A.    Yes.

      Q.    All right. So it’s not unusual, is it, for it to take three times to
            repair a hole in a casing?

      A.    Correct.

      Q.    And that doesn’t necessarily mean that anybody did anything
            wrong, correct?

      A.    Correct.

      Q.    It could just be the dynamics of the hole and the geology that’s
            down there; is that right?

      A.    Yes, sir.

      Bradshaw agreed that everyone can do everything right on the first

squeeze but it can still fail, and he could not name anything that Gardner had

done wrong. Finally, the third squeeze job successfully repaired the casing leak.

We therefore hold that the evidence is legally and factually sufficient to support

the trial court’s refusal to find that Legend breached any implied warranty of good

workmanship generally.

      Specifically, though, the Company contends that the trial court erred by

refusing to find that Legend failed to perform in a good and workmanlike manner

by failing to circulate the well clean at the conclusion of the third squeeze job.

After completing the squeeze, Legend swabbed the well to clean it out but did not



                                         18
circulate the well with water. The parties presented conflicting testimony about

whether circulation or swabbing is the better method to clean the well. Gardner

testified,

              When I removed that retrievable bridge plug, that 3,000 feet of
       fluid goes down. The producing zone is partially depleted, not much
       pressure on it. So when the weight of that fluid hits, it actually—the
       zone actually drinks some of that fluid. We then run our tubing down
       and swab it to where we pull that fluid back out—

             ....

              But this fluid’s coming down, goes into the formation. Then
       whenever you swab it, you continue to swab it until it pulls all this
       fluid back out of this formation, which actually cleans the formation
       better than circulating it would.

            And that was what—that was what we did in this case, is we
       swabbed the well clean instead of circulating it clean. Basically
       accomplishing the same thing.

       We hold that the evidence is legally and factually sufficient to support the

trial court’s refusal to find that Legend breached any implied warranty of good

workmanship by failing to circulate the well clean after the third squeeze job.

Further, because the Company does not contest the trial court’s findings that

       23.   The ―contract‖ for services gives no particular guidance for the
             services rendered other than representations that [Legend]
             ―has adequate equipment in good working order and fully
             trained personnel capable of efficiently operating such
             equipment and performing services for Contractor[;‖]

       24.   During the entire period of time [Legend] made repairs to
             the . . . well, it had adequate equipment which was in good
             working order[;]

       25.   During the entire period of time[, Legend] had fully trained
             personnel capable of efficiently operating such equipment and


                                        19
             performing the services for which it contracted with [the
             Company;]

      ....

      27.    [The Company]’s complaint was that [Legend] took too long
             and did not use the methods [L.W. Lesikar] would have used[;
             and]

      28.    The contract did not have specifications for time and method[,]

and because of our holdings regarding the trial court’s refusal to find that Legend

breached an implied warranty of good workmanship, we hold that the trial court

properly concluded that Legend fully performed its assignment and that the

evidence is legally and factually sufficient to support the trial court’s finding that

Legend completed its assignment. We therefore also hold that the trial court did

not err by failing to find that the Company incurred $26,475.64 in expenses as a

result of Legend’s failure to circulate the well clean with water at the end of the

third squeeze job. We overrule the Company’s second issue in its entirety.18

V. Findings of Fact Numbers 17 and 22

      In its third issue, the Company argues in the alternative that the trial court

erred by making findings of fact numbers 17 and 22 because they are materially

inconsistent with the findings that Legend was contractually obligated to repair

the casing leak or, alternatively, because the evidence is insufficient to support

those findings. The findings provide,



      18
        See Gonzalez, 195 S.W.3d at 681–82; Cropper, 754 S.W.2d at 651.


                                         20
      17.    [The Company] through its owner L.W. Lesikar and a pumper,
             Dale Lee, employed by [the Company] were overseeing work
             performed by [Legend; and]

      ....

      22.    L.W. Lesikar or his pumper, Dale Lee, were at the job site and
             had the ultimate responsibility to order Legend or any other
             subcontractor to alter the plan of operation that was proposed
             for repair of the casing leak.

Because these findings are immaterial, given the absence of any finding that a

breach occurred on the part of Legend or any other subcontractor and given our

holdings above, we overrule the Company’s third issue.19

VI. Conclusion

      Having overruled the Company’s three issues, we affirm the trial court’s

judgment.




                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DELIVERED: August 18, 2011




      19
         See Tex. R. App. P. 44.1(a); Probus Props. v. Kirby, 200 S.W.3d 258,
264 (Tex. App.—Dallas 2006, pet. denied) (―An appellate court may disregard a
jury finding on a question that is immaterial.‖); Loaiza v. Loaiza, 130 S.W.3d 894,
904 (Tex. App.—Fort Worth 2004, no pet.).


                                        21
