                                  NO. 12-18-00148-CV

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 CLAUDE E. WELCH,                                 §       APPEAL FROM THE 217TH
 APPELLANT

 V.                                               §       JUDICIAL DISTRICT COURT

 JEREMY CREW,
 APPELLEE                                         §       ANGELINA COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Claude E. Welch appeals from the trial court’s judgment against him and in favor of Jeremy
Crew. In eleven issues, Welch contends the evidence is legally and factually insufficient to support
the trial court’s judgment. We affirm.


                                          BACKGROUND
       On June 24, 2009, Welch and Crew executed an “Office Lease and Case Referral
Agreement,” which went into effect on July 1, 2009. Per the agreement, Crew rented office space
and amenities from Welch for $1,000 per month. The monthly rent was required to be paid half
in cash and half via five hours of contract services. Welch was not required to request Crew
perform contract services. Under the contract, if Crew performed less than five hours of contract
work in a month, the deficient amount rolled over to the following month and accumulated
monthly.
       The lease terminated on January 1, 2012, when Crew purchased the building from Welch.
After purchasing the building, Crew allowed Welch to store personal belongings in an unused
portion of the building rent-free. At that time, 127.70 hours of service had accrued that Welch
never requested Crew perform. When Welch owner-financed the building purchase, he did not
seek to collect the hours of service or any amount of back rent from Crew.
        The relationship between the men deteriorated in 2013, and Crew obtained a loan to pay
the balance of the promissory note. Welch did not attempt to collect back rent when calculating
the payoff amount for the loan. Their relationship deteriorated further when Crew wished to open
a business in the building and asked Welch to vacate the premises. Welch refused, and Crew filed
an eviction action. Welch was evicted in May 2014. In October 2014, Welch demanded Crew
pay him for the contract services owed as a result of the 2009 lease and subsequently filed suit for
breach of contract based on the unpaid rent. In an amended answer, Crew asserted numerous
affirmative defenses.
        The matter proceeded to a bench trial. At trial, Welch and Crew offered different
interpretations of the rental agreement. Welch claimed the agreement entitled him to (1) the full
amount of the rent, regardless of whether he ever requested contract services from Crew, and (2)
the value of the services that were not performed. Crew disagreed and testified that he was only
obligated to provide contract services and not money. The trial court issued a letter judgment in
favor of Crew, and in accordance with the trial court’s order, Crew filed a take-nothing judgment.
The trial court made no findings of fact or conclusions of law. This appeal followed.


                                      SUFFICIENCY OF THE EVIDENCE
        In his first three issues, Welch challenges the legal and factual sufficiency of the evidence
to support the trial court’s determination that Crew did not breach the contract. In his fifth through
eleventh issues, he challenges the legal and factual sufficiency of Crew’s affirmative defenses.1
Standard of Review
        In an appeal of a judgment rendered after a bench trial, the trial court’s findings of fact
have the same weight as a jury’s verdict, and we review the legal sufficiency of the evidence used
to support them just as we would review a jury’s findings. See In re Doe, 19 S.W.3d 249, 253



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           In his fourth issue, Welch contends the trial court erred in allowing Crew to file an untimely amended
answer. Crew’s second amended answer was filed five days prior to trial. Welch objected, alleging that the answer
was prejudicial because it raised two new defenses. The trial court overruled his objection. However, when asked if
he wanted a continuance, Welch’s counsel responded, “No, we are ready.” As a result, Welch waived this issue. See
Nordheim Ind. School Dist. v. Johnson, 597 S.W.2d 48, 50 (Tex. Civ. App.—Corpus Christi 1980, no writ) (school
district waived any error regarding trial amendment by failing to file a motion for continuance, claim surprise, and
seek a postponement in order to prepare its case for trial based on the new pleading); see also Beneficial Personnel
Servs. of Tex., Inc. v. Rey, 927 S.W.2d 157, 165 (Tex. App.—El Paso 1996), vacated pursuant to settlement, 938
S.W.2d 717 (Tex. 1997) (even if appellants were prejudiced or surprised by trial amendment, they were offered
accommodation by the trial court in form of one-day continuance, which they refused, waiving any claimed error).


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(Tex. 2000). The trial court acts as fact finder in a bench trial and is the sole judge of the credibility
of witnesses. See Murff v. Murff, 615 S.W.2d 696, 700 (Tex. 1981).
        In conducting a legal sufficiency review of the evidence, we must consider all the evidence
in the light most favorable to the verdict and indulge every reasonable inference that would support
it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). In determining whether legally
sufficient evidence supports the finding under review, we must consider evidence favorable to the
finding, if a reasonable fact finder could consider it, and disregard evidence contrary to the finding,
unless a reasonable fact finder could not disregard it. Id. at 827; Brown v. Brown, 236 S.W.3d
343, 348 (Tex. App.–Houston [1st Dist.] 2007, no pet.). If the evidence at trial would enable
reasonable and fair-minded people to differ in their conclusions, the fact finder must be allowed
to do so. City of Keller, 168 S.W.3d at 822; see also King Ranch, Inc. v. Chapman, 118 S.W.3d
742, 751 (Tex. 2003). We will sustain a legal sufficiency or “no evidence” challenge if the record
shows one of the following: (1) a complete absence of evidence of a vital fact, (2) rules of law or
evidence bar the court 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 evidence establishes
conclusively the opposite of the vital fact. City of Keller, 168 S.W.3d at 810.
        More than a scintilla of evidence exists when the evidence rises to a level that would enable
reasonable and fair-minded jurors to differ in their conclusions. Wal–Mart Stores, Inc. v. Spates,
186 S.W.3d 566, 568 (Tex. 2006) (per curiam); Forbes Inc. v. Granada Biosciences, Inc., 124
S.W.3d 167, 172 (Tex. 2003). Any ultimate fact may be proved by circumstantial evidence.
Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993). A fact is established by circumstantial
evidence when the fact may be fairly and reasonably inferred from other facts proved in the case.
Id. Evidence that is so slight as to make any inference a guess is in legal effect no evidence. Ford
Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). Moreover, under the equal inference
rule, a factfinder may not reasonably infer an ultimate fact from meager circumstantial evidence
which could give rise to any number of inferences, none more probable than another. See Hancock
v. Variyam, 400 S.W.3d 59, 70–71 (Tex. 2013).
        When a party attacks the factual sufficiency of an adverse finding on an issue on which it
has the burden of proof, it must demonstrate on appeal that the adverse finding is against the great
weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.
2001) (citing Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983)). In a factual sufficiency



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review, we consider and weigh all of the evidence, and will set aside a verdict only if the evidence
is so weak or if the finding is so against the great weight and preponderance of the evidence that
it is clearly wrong and unjust. Id. (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.
1986)).
Breach of Contract
          In his first, second, and third issues, Welch argues that the evidence is legally and factually
insufficient to support the trial court’s rejection of his interpretation of the contract and the trial
court’s implied finding that Crew did not breach the contract
          The elements of a breach of contract claim are (1) the existence of a valid contract, (2)
performance or tendered performance, (3) breach of the contract, and (4) damage as a result of the
breach. See Critchfield v. Smith, 151 S.W.3d 225, 233 (Tex. App.–Tyler 2004, pet. denied). A
breach of contract occurs when a party to the contract fails or refuses to do something that it has
promised to do. B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 16 (Tex. App.–Houston [1st
Dist.] 2009, pet. denied).
          The Office Lease and Case Referral Agreement contained the following provision:

          2. Rent. Mr. Crew shall pay to Mr. Welch a monthly rental of One Thousand Dollars ($1000.00),
          which shall consist of two components: Cash and contract services. The cash component shall be
          Five Hundred Dollars ($500.00). The contract services component shall consist of five (5) hours of
          legal services to be rendered to Mr. Welch, with each hour of legal services valued at One Hundred
          Dollars ($100.00) per hour. The parties understand that there is no guarantee to the amount of
          contract work, if any, Mr. Welch will provide. In the event contract services do not equal five (5)
          hours during the month then the hours will be carried over onto the next month and thereafter
          accumulate monthly until the obligation is satisfied. Further, Mr. Crew shall have the option to
          substitute full or partial cash payment in lieu of contract services to satisfy the total rental obligation.
          In the event the contract services exceed five (5) hours during the month then Mr. Welch shall pay
          to Mr. Crew an hourly rate to be mutually agreed upon at that time for each additional hour above
          five (5) hours. When possible, the maximum time to be spent on each contract project will be
          predetermined. Mr. Crew shall retain the right to reasonably refuse any such contract project unless
          his monthly rental payments include an offset for services rendered to Mr. Welch.


Welch argues that this portion of the rental agreement entitled him to receive $1,000.00 per month,
whether that be in the form of cash or contract services. He further argues that he was entitled to
receive cash in exchange for the contract services that were not performed. Welch maintains that
he is due $12,770 in back rent because of the 127.70 hours that Crew failed to work. Crew, on the
other hand, argues that the rental agreement did not allow Welch to trade money for contract
services. Crew contends that Welch was only entitled to the hours he requested Crew work and




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nothing further. As a result, he claims he does not owe Welch the value of the work not performed.
We agree with Welch.
       A contract is not ambiguous merely because the parties disagree about its meaning and
may be ambiguous even though the parties agree it is not. URI, Inc. v. Kleburg Cty., 543 S.W.3d
755, 763 (Tex. 2018). If a written contract is so worded that it can be given a definite or certain
legal meaning when so considered and as applied to the matter in dispute, then it is not ambiguous.
Id. at 765. A contract is ambiguous only if it is subject to more than one reasonable interpretation.
El Paso Field Servs., L.P. v. MasTec N. Am., Inc., 389 S.W.3d 802, 806 (Tex. 2012). Both the
presence of ambiguity and interpretation of an unambiguous contract are questions of law reviewed
de novo using well-settled contract-construction principles. URI, 543 S.W.3d at 763.
       In construing a contract, we must ascertain and give effect to the parties’ intentions as
expressed in the writing itself. El Paso Field Servs., 389 S.W.3d at 805. To determine the parties’
intent, we examine and consider the entire writing to harmonize and give effect to all the provisions
of the contract so that none will be rendered meaningless. Id.; Exxon Corp. v. Emerald Oil &
Gas Co., L.C., 348 S.W.3d 194, 214 (Tex. 2011). We begin our analysis with the contract’s
express language. El Paso Field Servs., 389 S.W.3d at 805–06. We give terms their plain and
ordinary meaning unless the contract indicates that the parties intended a different meaning.
Dynegy Midstream Servs., Ltd. P’ship v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009). No
one phrase, sentence, or section of a contract should be isolated from its setting and considered
apart from the other provisions. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex. 1994).
To the extent of any conflict, specific provisions control over more general ones. NuStar Energy,
L.P. v. Diamond Offshore Co., 402 S.W.3d 461, 466 (Tex. App.—Houston [14th Dist.] 2013, no
pet.); see Forbau, 876 S.W.2d at 133–34.
       The language of the rental agreement is clear and unambiguous. The contract obligated
Crew to pay $1,000 per month. That obligation consisted of two components: $500 cash and five
hours of contract services valued at $100 per hour. The agreement expressly stated that there was
no guarantee as to the amount of contract work, if any, Welch would provide for Crew to perform.
The contract set forth additional provisions addressing a situation in which the amount of contract
services varied, including: (1) if contract services failed to equal five hours, the hours would be
carried over onto the next month and thereafter accumulate monthly until the obligation was
satisfied; and (2) Crew could substitute full or partial cash payment in lieu of contract services to



                                                 5
satisfy the total rental obligation.     Accordingly, the contract clearly contemplated Crew’s
satisfaction of the entire rental obligation.
        At trial, Welch testified that Crew was deficient by 127.70 hours of performance, or
$12,770 in unpaid rent. Crew agreed that he did not perform 127.70 hours of contract services
because they were not requested, but he admitted there was no guarantee that Welch would provide
any work. With respect to the five hours of monthly contract labor, he acknowledged that this
portion of the monthly rental obligation could be satisfied by performing the work or by buying
out the hours. However, he contends the agreement did not require that he satisfy the obligation
in monetary form. As discussed above, the contract states that Welch was entitled to $1,000 per
month in rent, be that by $500 cash each month plus (1) five hours of contract services each month,
(2) the accumulation of contract hours until satisfaction of the obligation, or (3) Crew’s cash
payment in lieu of contract services. Only when the agreement terminated did Welch know the
amount of back rent owed, and by his own admission, Crew was deficient in the amount of 127.70
hours; thus, he breached the contract by failing to fulfill the contract’s entire rental obligation
through satisfaction of accumulated hours or cash in lieu of services as contemplated by the
contract. Although Crew may not have been required to satisfy the obligation monetarily during
the life of the agreement, the contract does not preclude Welch from recovering the cash value of
services not rendered in breach of the agreement. To hold that Welch is not entitled to the full
$1,000 monthly rental obligation would be contrary to the express terms of the agreement.
        Accordingly, viewing the evidence in the light most favorable to the verdict, we conclude
that reasonable and fair-minded people could not reach the conclusion that Crew failed to breach
the contract. See City of Keller, 168 S.W.3d at 827. Thus, the evidence is legally insufficient to
support an implied finding that Crew did not breach the contract and we need not address the
factual sufficiency of the evidence. See TEX. R. APP. P. 47.1. We sustain Welch’s first, second,
and third issues.
Affirmative Defenses
        In issues five through eleven, Welch challenges the sufficiency of the evidence to support
implied findings on Crew’s affirmative defenses. Because it is dispositive, we begin by addressing
Welch’s ninth issue, in which he challenges the legal and factual sufficiency of the evidence to
support an implied finding that his breach of contract claim was defeated by waiver.




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       Waiver is defined as “an intentional relinquishment of a known right or intentional conduct
inconsistent with claiming that right.” Sun Exploration & Prod. Co. v. Benton, 728 S.W.2d 35,
37 (Tex. 1987); U.S. Fid. & Guar. Co. v. Bimco Iron & Metal Corp., 464 S.W.2d 353, 357 (Tex.
1971). Waiver is largely a matter of intent, and for implied waiver to be found through a party’s
actions, intent must be clearly demonstrated by the surrounding facts and circumstances. Motor
Vehicle Bd. of Tex. Dep’t of Transp. v. El Paso Indep. Auto. Dealers Ass’n, Inc., 1 S.W.3d 108,
111 (Tex.1999). There can be no waiver of a right if the person sought to be charged with waiver
says or does nothing inconsistent with an intent to rely upon such right. Maryland Cas. Co. v.
Palestine Fashions, Inc., 402 S.W.2d 883, 888 (Tex. 1966). A party’s silence or inaction for a
period of time long enough to show an intention to relinquish the known right may be sufficient to
prove waiver. Johnson v. Structured Asset Servs., LLC, 148 S.W.3d 711, 722 (Tex. App.—Dallas
2004, no pet.); Horton v. DaimlerChrysler Fin. Servs. Ams., L.L.C., 262 S.W.3d 1, 6 (Tex.
App.—Texarkana 2008, no pet.).
       The rental agreement became effective in July 2009. Throughout the term of the lease,
Crew timely paid the cash portion of the rent and performed any service hours assigned.
Throughout the duration of the agreement, Welch never requested Crew pay cash to satisfy the
contract services portion of the rent. The lease terminated on January 1, 2012, when Crew
purchased the property. Yet, the record does not indicate that Welch asserted any right to payment
for incomplete services at this time. During negotiations for the purchase of the property, Welch
never mentioned Crew owed any back rent. When Welch agreed to owner-finance the property,
he did not include the $12,770 of back rent in the purchase price. In the summer of 2013, after the
relationship between the men began to sour, Crew obtained a bank loan to pay off the promissory
note owed to Welch. Welch did not include the back rent in the payoff total. Crew filed an eviction
action against Welch in October 2013 after Welch refused to remove his belongings from the
building. During the eviction action, Welch again failed to mention any back rent owed. Not until
October 2014 did Welch claim any entitlement to back rent.
       A factfinder reasonably could conclude that Welch’s actions in failing to take any steps to
enforce his rights under the contract or to seek payment, until more than a year after the contract
terminated, exhibit a lack of intent to rely on any right to payment and are inconsistent with a
creditor who is owed more than $12,000 in back rent. Thus, based on the surrounding facts and
circumstances, the trial court could reasonably conclude that Welch either intentionally



                                                7
relinquished a known right or engaged in intentional conduct inconsistent with claiming that right.
See Motor Vehicle Bd., 1 S.W.3d at 111; see also Benton, 728 S.W.2d at 37; U.S. Fid. & Guar.
Co., 464 S.W.2d at 357. Viewing the evidence in the light most favorable to the verdict, we
conclude that the evidence is legally sufficient to support the trial court’s implied finding that
Welch waived his claim to back rent. See City of Keller, 168 S.W.3d at 824. Such a finding is not
so weak or against the great weight and preponderance of the evidence that it is clearly wrong and
unjust. Dow Chem. Co., 46 S.W.3d at 242. Because the evidence is sufficient to support the
affirmative defense of waiver, the trial court’s failure to find a breach of contract does not result
in reversal. We overrule Welch’s ninth issue and need not address issues five through eight and
ten through eleven regarding Crew’s other affirmative defenses. See TEX. R. APP. P. 47.1.


                                                   DISPOSITION
         Having determined that Crew breached his contract with Welch and sustained Welch’s
first, second, and third issues, but having overruled his ninth issue on Crew’s affirmative defense
of waiver, we affirm the trial court’s judgment.

                                                                  BRIAN HOYLE
                                                                     Justice

Opinion delivered December 12, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        DECEMBER 12, 2018


                                         NO. 12-18-00148-CV


                                        CLAUDE E. WELCH,
                                            Appellant
                                               V.
                                         JEREMY CREW,
                                            Appellee


                                Appeal from the 217th District Court
                     of Angelina County, Texas (Tr.Ct.No. CV-03620-14-11)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the appellant, CLAUDE E. WELCH, for which execution may issue, and that this
decision be certified to the court below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
