
                              NO. 07-12-0006-CV

                           IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL B

                             SEPTEMBER 24, 2012
                        _____________________________


                     GARY FITZGERALD AND GAIL CHRISTIE,


                                   Appellants
                                     v.


                      BIGHAM AUTOMOTIVE & ELECTRIC CO.,


                                    Appellee
                        _____________________________

            FROM THE COUNTY COURT AT LAW NO. 3 OF LUBBOCK COUNTY;

             NO. 2010-565,526; HONORABLE JUDY PARKER, PRESIDING
                        _____________________________

                             Memorandum Opinion
                        _____________________________



Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
      We have before us an appeal by Gary  Fitzgerald  and  his  wife,  Gail
Christie, (collectively  referred  to  as  the  Fitzgeralds)  from  a  final
judgment denying them recovery against  Bigham  Automotive  &  Electric  Co.
(Bigham).  They sued Bigham for breach of contract.  Bigham had  purportedly
agreed to provide Gail's son (Gary Christie,  who  was  a  Bigham  employee)
twenty hours of training per week in  the  area  of  automatic  transmission
repair in return for the Fitzgeralds paying Bigham $200 per  week.   Because
Bigham did not do so before firing Gary, the Fitzgeralds sued.  The  dispute
was tried by the bench, and the judge concluded that "[n]o oral  or  written
contract existed between" the parties.  The Fitzgeralds now argue  that  the
"finding goes against not just the great weight of  the  evidence,  but  the
entirety of the evidence in the trial record."  We affirm.
       Though  no  one  mentions  the  applicable  standard  of  review,  we
nevertheless  interpret  the  Fitzgeralds'  complaints  as   attacking   the
sufficiency of the evidence underlying the trial court's  conclusion.   They
seem to be arguing that 1) no evidence supports it or  that  it  is  against
the great weight and preponderance of the evidence, and 2) they  proved  the
existence of the aforementioned contract as a matter of  law.   Given  this,
the standard of review  is  that  described  by  this  court  in  Krabbe  v.
Anadarko Petroleum Corp., 46 S.w.3d 308, 314-15  (Tex.  App.-Amarillo  2011,
pet. denied).   Simply put, if there is some evidence supporting  the  trial
court's finding, then the Fitzgeralds did not prove their claim as a  matter
of law.  Id. at 315.   So, it would be incumbent upon them  to  explain  why
no evidence of record allowed the trial court to rule as it  did  before  we
could award them any recovery.
      Nor would the Fitzgeralds be entitled to a new trial unless  they  can
successfully explain why all the other  evidence  purportedly  contradicting
the court's finding is so weighty  as  to  render  that  finding  manifestly
unjust.  Fulgham v. Fischer, 349 S.W.3d 153, 157 (Tex. App.-Dallas 2011,  no
pet.).   And,  in  assessing  these  matters,  we  must  remember  that  the
factfinder is free to believe  whomever  it  chooses.   Id.   It  makes  the
requisite credibility choices, we do not.  Id.  Nor are we  free  to  simply
re-weigh the evidence as  if  we  were  the  trier  of  fact.   Rather,  our
obligation is quite deferential.  So  long  as  the  factfinder  could  have
reasonably arrived at the  conclusion  it  did  (even  though  we  may  have
reached a different result had we been in its place), our hands  are  bound.
 With that said, we turn to the record before us.
      One can easily characterize the tenor of the dispute as  "he  said/she
said."  While Gary Fitzgerald testified that Bigham had  agreed  to  provide
the  twenty  hours  of  training  in  exchange  for  the  payment,  Bigham's
representative (that being Rick Bigham, the individual with whom  Fitzgerald
communicated), testified otherwise.  The latter  informed  the  trial  court
that the Fitzgeralds agreed to make the $200 weekly  payment  to  supplement
or subsidize the  salary  being  paid  to  Gail's  son.   That  is,  he  was
guaranteed $400 a week when hired as a mechanic by Bigham but was not  doing
enough work to  justify  that  sum.   So,  according  to  Rick  Bigham,  the
Fitzgeralds agreed to pay $200 of that $400  sum  to  facilitate  the  son's
retention as an employee.   However,  no  one  agreed  that  the  son  would
receive twenty hours a week of training in automatic transmission repair  as
part of the transaction, according to Bigham.  This testimony, if  believed,
constituted some evidence of there being no contract of  the  ilk  suggested
by the Fitzgeralds.  And, more importantly, the  trial  court  was  free  to
believe it.
      The Fitzgeralds attempted to strip Bigham's testimony of any value  by
calling it "self-serving" in their appellate brief.  One could say that  any
testimony imparted by an interested witness favoring that witness is  "self-
serving."   Yet,  the  Fitzgeralds  fail  to  tell  us  why   "self-serving"
testimony should be assigned no evidentiary value.  Nor did  they  cite  any
authority supporting their suggestion.  More  importantly,  if  we  were  to
accept the notion that "self-serving" testimony is  not  evidence,  then  we
would have to ignore Gary Fitzgerald's own testimony too since it  tends  to
foster his own position and, thus, is "self-serving."  But, that is not  the
rule.  The factfinder gets to  choose  who  and  what  evidence  to  believe
whether "self-serving" or not, and we defer  to  that  decision.   Moreover,
deferring in this situation is quite reasonable given evidence  coming  from
Gary  Fitzgerald  himself.   For  instance,  several  of  his  own   e-mails
described the payment as a subsidy, though others  alluded  to  training  as
well.   And, to the extent that e-mails broached the  topic  of  "training,"
few tied the "training" to transmission repair specifically.   And,  of  the
few that  may  have  linked  training  to  transmission  repair,  none  said
anything about twenty  hours  of  training  a  week.   Instead,  one  merely
proffered a "conceptual learning plan" wherein the son "gets, say,  2  hours
of transmission work per day . . .  [o]r,  say,  10  hours  per  week  as  a
goal."   Fitzgerald merely proposing that the son "get, say"  ten  hours  of
training per week as a goal tends to  contradict  the  proposition  that  he
sought from and Bigham agreed to twenty hours of weekly training.
      We further note Fitzgerald's testimony  that  he  "realized  that  Mr.
Bigham might not have 20 hours every week" and that he  "expected  at  least
ten hours minimum" in transmission repair training be given to  Gail's  son.
Why Fitzgerald would find ten hours per week of training  acceptable  if  he
actually contracted and paid for twenty hours per  week  was  something  the
trial court could have pondered on when deciding if  the  parties  ever  had
the meeting of the minds needed to  form  a  contract.   So  too  could  the
factfinder have assigned weight to the son's testimony about not knowing  of
any agreement to receive twenty hours of transmission  repair  training  per
week.
      In short, the trial court was asked to consider  conflicting  evidence
regarding a purported agreement to provide Gary Christie with  twenty  hours
of transmission repair  training  per  week.   It  concluded  that  no  such
agreement  existed.   Having  found  evidence  of  record  to  support  that
decision and that the decision is not manifestly unjust when tested  against
the entirety of the record, we overrule the Fitzgeralds' complaints.
      The judgment is affirmed.

                                        Brian Quinn
                                        Chief Justice
