      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-08-00593-CV



      Appellant, Danny Davis // Cross-Appellant, Sysco Food Services of Austin, L.P.

                                                 v.

        Appellee, Sysco Food Services of Austin, L.P. // Cross-Appellee, Danny Davis


              FROM COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
        NO. C-1-CV-03-271634, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Sysco Food Services of Austin, L.P. provided certain equipment under a lease

agreement to a restaurant that subsequently ceased operations with money due and owing under the

equipment lease. El Dorado Bar & Grill, Inc. began operating a restaurant at the same location,

where it took possession of and used the equipment that was previously under lease by the prior

owner, based on an oral agreement for use of the equipment with Sysco. After El Dorado also

ceased operations, Sysco sued Danny Davis, vice president of El Dorado, for the remaining debt on

the equipment. Following a bench trial, the county court awarded Sysco the amount owed, along

with attorneys’ fees. We hold that Davis’s oral agreement to pay the debt on the equipment is

enforceable under the partial-performance exception to the statute of frauds. We also hold that Davis

was acting on behalf of El Dorado in making such agreement and, therefore, that the contractual rate

of 18-percent interest based on Davis’s written personal guaranty of El Dorado’s debts applies to the
judgment. We modify the judgment to provide for 18-percent pre- and post-judgment interest, and

affirm the judgment as modified.


Factual and Procedural Background

               Danny Davis was vice president of El Dorado Bar & Grill, which began operating a

restaurant in Austin during February 2002. El Dorado operated in the space formerly occupied by

Dam View Restaurant, which had ceased operations for financial reasons in January 2002.

               Sysco sold produce, groceries, and equipment to El Dorado during the course of its

restaurant operations. In addition, Sysco had furnished certain restaurant equipment under a lease

agreement—including ovens, coolers, and bar supplies—to Dam View, and that equipment remained

on the premises and was then used by El Dorado in its restaurant operation. Dam View owed Sysco

$51,326.79 for the equipment at the time Dam View ceased operations.

               In June 2002, Jeff Maurer, a Sysco marketing associate, spoke with Davis at the

restaurant regarding the Dam View equipment. Davis entered into an oral agreement under which

payments of $1,000 per month would be made against the unpaid amount of Dam View’s equipment

debt.1 In September 2002, El Dorado made a payment of $1,000 to Sysco that was allocated to the

Dam View equipment account. In October 2002, Sysco allocated another $1,000 from El Dorado’s

payments toward that account. Also in October, however, El Dorado declared bankruptcy, and in

May 2003 El Dorado ceased operations altogether.


       1
         Davis testified that such payments would be made only if the restaurant made sufficient
profit. However, Maurer testified to the contrary, and the trial court’s finding that Davis agreed to
pay the amount owed for the Dam View equipment did not refer to any condition concerning
El Dorado’s making profits. Davis does not challenge the trial court’s finding on this issue.

                                                 2
               Sysco sued Davis in county court on June 27, 2003, to collect the unpaid debt on the

Dam View equipment of $49,326.79.2 On May 9, 2002, Davis had signed a personal written

guaranty of amounts owed by El Dorado to Sysco. Following a bench trial, the county court entered

judgment against Davis on June 26, 2008, awarding Sysco $49,326.79 for the Dam View equipment,

along with pre- and post-judgment interest and attorneys’ fees.


Partial Performance

               Davis contends that the trial court erred in finding that he agreed to be liable for the

Dam View equipment debt. At trial, Sysco sought to attach liability to Davis under the alternative

theories of (1) an oral agreement to answer for the equipment debt, and (2) quantum meruit. On

appeal, Sysco has abandoned its quantum meruit theory. Therefore, we address only whether the

judgment should be affirmed based on Davis’s oral agreement to be responsible for the Dam View

equipment debt.

               Sysco concedes that the relevant agreement is subject to the statute of frauds

and, therefore, that an exception to the statute of frauds must apply for the oral agreement to be

enforceable. See Tex. Bus. & Com. Code Ann. § 26.01(a), (b)(2) (West 2009); Carter v. Allstate

Ins. Co., 962 S.W.2d 268, 270 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). Sysco contends

that the oral agreement in this case is enforceable based on the partial-performance exception to

the statute of frauds. See Avila v. González, 974 S.W.2d 237, 246 (Tex. App.—San Antonio 1998,




       2
            Sysco also sued to recover the amount owed by El Dorado for groceries, produce,
and equipment purchased by El Dorado after it commenced operations. Davis does not appeal the
trial court’s award of damages as to those purchases.

                                                  3
pet. denied). In its findings of fact, the trial court found that “Davis agreed to pay Sysco $1,000.00

per month against the unpaid amount of $51,326.79 for the Dam View Equipment.” However, the

trial court did not include a finding that the partial-performance exception applies.

               When the trial court’s findings of fact address a ground of recovery but omit an

essential element, we may infer the omitted element because the judgment is presumed valid. See

Tex. R. Civ. P. 299; Hailey v. Hailey, 176 S.W.3d 374, 383-84 (Tex. App.—Houston [1st Dist.]

2004, no pet.). An omitted finding will be deemed to support the judgment if evidence exists

to support the finding. See Tex. R. Civ. P. 299; Lindner v. Hill, 691 S.W.2d 590, 592 (Tex. 1985);

Castano v. Wells Fargo Bank, 82 S.W.3d 40, 43 (Tex. App.—San Antonio 2002, no pet.).3 In

reviewing the record to determine whether any evidence supports an implied finding, we consider

only the evidence favorable to the finding and disregard any evidence or inferences to the contrary.

See Goodyear Tire & Rubber Co. v. Jefferson Constr. Co., 565 S.W.2d 916, 918 (Tex. 1978); Alford

v. Johnston, 224 S.W.3d 291, 296 (Tex. App.—El Paso 2005, pet. denied).

               Under the partial-performance exception to the statute of frauds, an oral contract

may be enforced in equity if there is strong evidence establishing the existence of an agreement

and its terms, the party seeking enforcement acted in reliance on the oral contract and suffered a

substantial detriment for which he has no adequate remedy, and the other party would reap an

unearned benefit if permitted to plead the statute. See Exxon Corp. v. Breezevale Ltd., 82 S.W.3d

429, 439 (Tex. App.—Dallas 2002, pet. denied). Moreover, the partial performance must be


       3
          An appellant may challenge the factual sufficiency of an implied finding. See Castano
v. Wells Fargo Bank, 82 S.W.3d 40, 42 (Tex. App.—San Antonio 2002, no pet.). However, Davis
has not challenged the factual sufficiency of a finding of partial performance.

                                                  4
unequivocally referable to the alleged oral agreement such that the performance itself constitutes

persuasive evidence of the agreement’s existence. See id. at 439-40.

               There is evidence supporting a finding of the existence of an agreement and its terms.

Both Maurer (representing Sysco) and Davis (representing El Dorado)4 testified that they had a

conversation regarding the Dam View equipment on the restaurant site, that they entered into an

agreement for El Dorado to pay the debt, and that under the terms of the agreement Sysco would not

repossess the equipment and El Dorado’s monthly payments would be in the amount of $1,000.

There was no evidence to contradict Davis’s and Maurer’s testimony on these points.5

       4
          Regarding the capacity in which he was acting upon entering the agreement with Sysco to
take on responsibility for Dam View’s equipment debt, Davis testified as follows:

       Q.      Now when you were having that discussion with Mr. Maurer, were you acting
               and talking as vice-president of El Dorado? Or, were you acting and talking
               as Danny Davis the individual?

       A.      El Dorado, Craig was there with me.

       Q.      So you were acting as vice-president of El Dorado?

       A.      Yes . . . .

In addition, Davis testified that during his conversation with Maurer he refused to personally
guarantee the amount, and that after the conversation Sysco sent Davis a written personal guaranty
covering the Dam View equipment debt but he refused to sign it. Davis concedes that El Dorado,
not Davis, made the two $1,000 payments that were allocated to the Dam View equipment account.
Both checks containing those payments were drawn on El Dorado’s account. There is simply no
evidence in the record that Davis was acting in his individual capacity when he entered into the
oral agreement, or that he was without authority to act on behalf of El Dorado. The evidence
conclusively establishes that, in making the agreement to take on responsibility for Dam View’s
equipment debt, Davis was acting on behalf of El Dorado.
       5
          Davis contends that the evidence is insufficient that he agreed, on behalf of El Dorado, to
accept full responsibility for the equipment debt in its entirety. However, Maurer testified that Davis
agreed for El Dorado to assume the debt, Davis testified that his intention when making the
agreement was to pay off the debt, and there was no testimony to the contrary.

                                                  5
               There is also evidence that Sysco acted in reliance on the agreement by partially

performing its obligations under the agreement. The testimony of both Maurer and Davis indicates

that Sysco would have repossessed the equipment in the absence of Davis’s agreement to make

payments on the amount due. Maurer testified as follows:


       Well, I . . . told Danny that there was equipment that was unpaid from Craig’s
       previous concept there. And that if we—you know it’s here in the restaurant. And
       I need to get—we need to see how I can get paid for that. If we are not going to get
       paid, then it has to be returned. And he said—and I don’t recall when or where
       exactly in the restaurant—that . . . he would be responsible for that equipment to not
       have it taken away.


Likewise, Davis testified as follows:


       Q.      . . . . Jeff came in and wanted to know whether y’all wanted the equipment
               or whether Sysco should take it away; is that fair?

       A.      It was something like that in the first part of that conversation.

       Q.      Okay. And you wanted El Dorado to be able to use the equipment?

       A.      Yes.


There is no dispute that Sysco did not repossess the equipment following the oral agreement

with respect to payment for the equipment. Davis’s testimony confirms Sysco’s reliance on the

oral agreement:


       Q.      And that is what you alleged Sysco agreed to?

       A.      Well, they didn’t pick the equipment up.




                                                  6
               There is evidence that Sysco suffered a substantial detriment for which it has

no adequate remedy. It is uncontroverted that of the $51,326.79 owed on the Dam View equipment,

Sysco only received $2,000 from El Dorado. There is also evidence that El Dorado would reap an

unearned benefit if permitted to plead the statute of frauds. It is uncontroverted that although Sysco

only received two monthly payments from El Dorado for the Dam View equipment, the equipment

was in the possession of El Dorado for its restaurant use during the course of its operations—from

February 2002 to May 2003.

               Finally, there is evidence that Sysco’s partial performance was unequivocally

referable to the oral agreement. Sysco did not repossess the equipment. Sysco established a separate

account in its financial records described as the “Dam View equipment” account, and the two $1,000

payments made in September and October of 2002 were allocated to this account. Moreover, the

September 2002 El Dorado check, signed by Davis’s partner Craig Gatewood, contains the

description “Equip 1000.00” and includes the account number of the Dam View equipment account

established by Sysco.6

               We conclude that legally sufficient evidence exists to support the finding that the

partial-performance exception to the statute of frauds applies to the oral agreement entered into by

El Dorado and Sysco. We infer, therefore, this omitted element in the trial court’s findings in

support of its judgment. See Tex. R. Civ. P. 299. Consequently, we affirm the trial court’s




       6
          El Dorado’s bank refused to honor the check signed by Gatewood due to insufficient funds.
Davis signed a new check on El Dorado’s account that provided it was replacing the previous check
and that included the description “E - 1000.00.”

                                                  7
conclusion that Sysco is entitled to judgment against Davis for $49,326.79 attributable to the

Dam View equipment.


Attorneys’ Fees

               Davis contends that the trial court’s award of attorneys’ fees should be reversed.

Specifically, Davis argues that attorneys’ fees were unrecoverable as to the Dam View equipment

debt because the trial court based Davis’s liability on quantum meruit rather than contract, that Sysco

failed to segregate out those unrecoverable fees, and that the amount of fees awarded is excessive

without damages awarded for the Dam View equipment debt.

               Each of Davis’s arguments depends on his not being liable for the Dam View

equipment debt based on breach of contract. We have held that Davis is liable based on breach of

contract. Therefore, we affirm the trial court’s award of attorneys’ fees.


Applicable Interest Rate

               In its cross appeal, Sysco contends that the trial court erred by awarding pre-and post-

judgment interest at only five percent on its awards of the Dam View equipment debt and attorneys’

fees. Davis concedes that he personally guaranteed El Dorado’s debts. Davis’s written personal

guaranty applies to “all amounts due and owing now, and from time to time hereafter” from

El Dorado to Sysco, and it contains a provision governing the amount of interest that would apply

to any such amounts. Moreover, we have held that El Dorado entered into an enforceable

oral agreement to take on responsibility for Dam View’s equipment debt. Since Davis personally




                                                  8
guaranteed El Dorado’s debts to Sysco and the equipment debt is a debt of El Dorado, we look to

Davis’s personal guaranty of El Dorado’s obligations to determine the proper interest rate.

               The personal guaranty provides that “an interest charge of one and one-half (1.5%)

percent per month, or the highest rate permitted by law, whichever is less, shall be assessed on

any amount due and owing to Sysco by [Davis] under this Guaranty until collected.” A contractual

interest-rate provision is enforceable in a money judgment on that contract, but the rate may not

exceed 18 percent per year. See Tex. Fin. Code Ann. § 304.002 (West 2006) (post-judgment

interest); Meridien Hotels, Inc. v. LHO Fin. P’ship I, L.P., 255 S.W.3d 807, 823 (Tex. App.—Dallas

2008, no pet.) (pre-judgment interest). Therefore, the trial court judgment should be modified such

that the rates of pre-judgment and post-judgment interest awarded are set at 18 percent.


Conclusion

               We modify the judgment of the county court such that the term “5%,” each place it

appears, is replaced with the term “18%.” We affirm the judgment as modified.




                                             __________________________________________

                                             G. Alan Waldrop, Justice

Before Chief Justice Jones, Justices Waldrop and Henson;
   Dissenting Opinion by Justice Henson

Modified and, as Modified, Affirmed

Filed: December 4, 2009



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