Affirmed and Opinion filed May 21, 2013.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-11-00843-CV

                    JESCO OPERATING, L.P., Appellant
                                        V.

                       HESS CORPORATION, Appellee

                   On Appeal from the 165th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2009-45089

                                OPINION


      Jesco Operating, L.P. appeals from a take-nothing judgment favoring Hess
Corporation. Jesco sued Hess for breach of a pipeline construction contract and
fraudulent inducement, and Hess counter-claimed, seeking an offset for Jesco‟s
own breach of the same contract. A jury declined to find either party liable on any
theory submitted. The trial court entered judgment in accordance with the verdict.
On appeal, Jesco contends that the jury‟s verdict is not supported by legally and
factually sufficient evidence. We affirm.

                                  I. Background

      Hess accepted Jesco‟s $1.4 million bid to build a gas pipeline as part of a gas
field expansion project near Seminole, Texas. As the March 31, 2009 completion
deadline neared, it became clear that Jesco would not be able to finish the project
on time. Jesco pointed to problems with a company employed by Hess to lay liner
for the pipeline as the cause for the delays. Jesco therefore asked that Hess issue a
new work order for sums above the agreed contract price to pay for work Jesco
claimed was beyond the scope of the project as bid. Hess denied that request,
apparently blaming cost overruns on Jesco‟s having damaged other pipelines in the
project area during construction. Jesco then filed suit against Hess.

      On April 16, 2009, representatives of the two companies, primarily Jesco‟s
owner Allan Williamson and Hess‟s project manager Brock Hajdik, met to discuss
the dispute. Based on agreements reached at this meeting, the parties signed a
supplemental letter agreement on April 24, 2009 that expressly amended the
original contract. Under the supplemental agreement, Jesco agreed to dismiss its
lawsuit and to finish the pipeline “at a „cost basis‟ without uplift or increase” as
was to be reflected in a “revised rate sheet.” The agreement left open the process
for creating the new rate sheet, but the agreement reaffirms Hess‟s right of audit, as
contained in the original agreement, and requires that Jesco “provide to Hess on
demand all relevant documents in support of the cost basis.” Hess also agreed to
pay Jesco an additional $289,000 for work Jesco already had completed. It was
undisputed that the purpose of the letter agreement was to “wipe the slate clean”
between the two companies going forward.

      Thereafter, Jesco continued working on construction of the pipeline, and
new disputes arose as to the “at cost” rates Hess was to pay for Jesco‟s labor and
                                            2
equipment. Hess did not dispute that Jesco was entitled to recoup as costs some of
its overhead on the project, but expressed frustration at the lack of documentation
Jesco provided regarding the rates used on its invoices. The parties never agreed to
a rate sheet as contemplated in their supplemental agreement. At one point, project
manager Hajdik sent Hess employee Edward DelaO to Jesco‟s local office to
collect data on Jesco‟s labor costs.       According to Hajdik, the key disputes
regarding labor costs included a lack of substantiation of rates and hours worked as
well as how to account for Jesco‟s overhead costs.

      Hess paid on only four invoices after April 17, 2009, the point at which the
“slate” had been “wiped clean.” All four invoices were for equipment costs. Hess
did not pay any invoice earmarked for labor costs.

      Three of the equipment invoices were ostensibly “pass through” invoices
wherein Jesco was to simply pass along the cost identified in a third-party,
equipment rental invoice it had received. Hess also paid part of a fourth invoice
that was disputed. This payment came after a series of emails and telephone
conversations principally between Williamson and Hajdik on the question of rates.
Williamson recorded a June 17, 2009 telephone conversation in which Sam Hakes,
a local supervisor for Hess on the project, joined the call with Hajdik and indicated
that certain equipment charges on the invoice were in error. At the conclusion of
the phone call, Williamson agreed to amend the invoice as requested, and Hajdik
agreed to pay it. Hajdik testified at trial, however, that in an earlier telephone call
that same day, he had reserved the right to further review the equipment charges,
and upon further review, Hakes discovered additional problems with the charges.
According to Hajdik, he subsequently agreed to pay only what Jesco could
substantiate at the time, and Williamson agreed to accept that payment. Hajdik
further explained that he agreed to make the payment without adequate

                                          3
substantiation because he knew Jesco needed the funds to pay employees and
continue in operation.

       When Hess refused to pay later invoices, Jesco quit working on the pipeline
and filed the present lawsuit.          Hess then paid another pipeline construction
company, Ferguson Construction, to finish the project. Hess‟s position at trial was
that when it finally audited Jesco‟s books (during the litigation), it determined that
Hess had overpaid by so much on the equipment invoices, above Jesco‟s actual
costs, that it had “covered” the amounts due for Jesco‟s labor costs, without ever
having paid a penny specifically earmarked for labor.1 Hess additionally argued at
trial that it was entitled to offset the amounts paid to Ferguson against any amounts
it might be found to owe Jesco. As discussed in detail below, Jesco makes
numerous arguments as to why Hess‟s numbers are incorrect.                        Jesco places
particular emphasis on statements by Hajdik that it claims were admissions that
Hess still owes Jesco under the agreement.

       Although the jury was given a rather lengthy charge, it answered only two
questions. In response to Question 1, the jury answered “No” when asked if Hess
failed to comply with the agreement by failing to pay the “full amount” it agreed to
pay for the services provided by Jesco. In response to Question 18, the jury again
answered “No” when asked whether Jesco failed to comply with the agreement by
failing to complete its work on the pipeline.

       On appeal, Jesco contends that the evidence conclusively demonstrated that
Hess failed to pay Jesco all it owed and thus Hess failed to comply with the
agreement. Jesco additionally argues that its damages and attorney‟s fees were
conclusively proven, and in the alternative, the jury‟s verdict is against the great

       1
        In something of a non sequitur to the question at hand, Hajdik testified at one point that
he thought Hess still owed Jesco about $40,000 for fuel costs.

                                                4
weight and preponderance of the evidence, necessitating a remand for a new trial.
Hess does not contest any jury finding or any part of the trial court‟s judgment.

                              II. Standards of Review

      In its three issues, Jesco challenges the sufficiency of the evidence to support
the jury‟s negative response to Question 1 regarding whether Hess failed to comply
with the supplemental agreement by failing to pay the full amount due to Jesco
under the agreement. In challenging the legal sufficiency of the evidence, Jesco
must establish that the evidence conclusively demonstrated that Hess failed to pay
the full amount it was required to pay under the agreement. See Dow Chem. Co. v.
Francis, 46 S.W.3d 237, 241-42 (Tex. 2001). In considering a legal-sufficiency
challenge, we view the evidence in the light most favorable to the fact finding,
crediting favorable evidence if reasonable persons could, and disregarding contrary
evidence unless reasonable persons could not.        City of Keller v. Wilson, 168
S.W.3d 802, 822, 827 (Tex. 2005); Port of Houston Auth. of Harris County v.
Zachry Constr. Corp., 377 S.W.3d 841, 859 (Tex. App.—Houston [14th Dist.]
2012, pet. filed).

      To successfully challenge the factual sufficiency of the evidence to support
the jury‟s finding, Jesco must demonstrate that the evidence is so weak or the
finding is so against the great weight and preponderance of the evidence as to be
clearly wrong and unjust. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996);
Horowitz v. Berger, 377 S.W.3d 115, 122 (Tex. App.—Houston [14th Dist.] 2012,
no pet.).

                               III. Legal Sufficiency

      We begin by addressing Jesco‟s legal sufficiency contentions. Question 1 in
the jury charge read in full as follows:


                                           5
Did Hess fail to comply with The Supplemental Agreement by
failing to pay Jesco the full amount for the services provided by
Jesco in accordance with the terms of The Supplemental
Agreement?
You are instructed that The Supplemental Agreement provides that
“the Jesco Hourly Rate shall be at a „cost basis‟ without uplift or
increase as reflected in the revised rate sheet submitted with
contemplated Change Order Number 2 (Hourly Time and Materials).”

Hess‟s failure to comply must be material. The circumstances to
consider in determining whether a failure to comply is material
include:

      (a)    the extent to which Jesco will be deprived of the benefit
             which it reasonably expected;
      (b)    the extent to which Jesco can be adequately compensated
             for the part of that benefit of which it will be deprived;
      (c)    the extent to which Hess will suffer forfeiture;
      (d)    the likelihood that Hess will cure its failure, taking into
             account the circumstances including any reasonable
             assurances;
      (e)    the extent to which the behavior of Hess comports with
             standards of good faith and fair dealing.
A party‟s conduct includes the conduct of another who acts with the
party‟s authority or apparent authority. Authority for another to act
for a party must arise from the party‟s agreement that the other act on
behalf and for the benefit of the party, if a party so authorizes another
to perform an act, that other party is also authorized to do whatever
else is proper, usual and necessary to perform the act expressly
authorized. Apparent authority exists if a party: (1) knowingly permits
another to hold himself out as having authority or, (2) through lack of
ordinary care, bestows on another such indications of authority that
lead a reasonably prudent person to rely on the apparent existence of
authority to his detriment. Only the acts of the party sought to be
charged with responsibility for the conduct of another may be
considered in determining whether apparent authority exists.


                                   6
The jury answered this question in the negative, and Jesco now contends that the
evidence is legally insufficient to support that finding.

       A. Hajdik’s Alleged Admissions

       Jesco makes numerous assertions regarding why it contends the evidence
conclusively demonstrates that Hess failed to pay the full amount due. Among
those assertions are several arguments based on alleged admissions by Hess‟s
project manager Brock Hajdik. It appears undisputed that Hajdik was the primary
Hess representative dealing with Jesco on matters relating to payment.2                The
alleged admissions by Hajdik include that Hess: (1) failed to pay any amount for
Jesco‟s labor costs, (2) backed out of an agreement to pay certain equipment
invoices, and (3) still owed Jesco about $40,000.

1. Labor Costs

       Regarding the first alleged admission, while Hajdik acknowledged that Hess
did not pay any specific invoice earmarked for labor, he insisted that Hess had
overpaid so much on equipment costs—due, he says, to Jesco‟s persistent
overbilling practices—that all of the labor costs were actually “covered.” Thus,
Hajdik‟s “admission” regarding labor costs does not amount to an admission that
Hess failed to pay what it was required to pay under the agreement or that it failed
to comply with that agreement.

2. Equipment Invoices

       Similarly, while Hajdik also acknowledged that Hess failed to pay the
entirety of the equipment costs discussed in the June 17 telephone call between

       2
         Jesco points to testimony by Hess employee Edward DelaO wherein he stated that he
advised Hajdik to pay Jesco. Jesco does not, however, argue that DelaO‟s testimony alone
demonstrates that Hess did not pay all it was required to pay to Jesco. Indeed, there was
evidence a substantial payment was made after DelaO allegedly made this statement to Hajdik.

                                             7
Hajdik, Hakes (Hess‟s local supervisor), and Williamson (Jesco‟s owner), Hajdik
also testified that, in a separate telephone call, he reserved the right for Hess to
reexamine the equipment invoices before payment would be made.3 The next day,
Hajdik emailed Williamson to say that Hakes was in the process of reviewing the
invoices and payment would be forthcoming “provided there are no gross errors.”
There is no indication Williamson objected to this procedure at the time.
Moreover, according to Hakes, he discovered significant problems with Jesco‟s
equipment invoices, including that Jesco was billing Hess for rented equipment
(which should have been submitted as a pass-through, third-party invoice) as
though the equipment were owned by Jesco.4 Consequently, Hajdik‟s “admission”
that invoices discussed in the June 17 phone call were not paid in full does not
equate to an admission either that Hess failed to pay all that it owed to Jesco or that
Hess failed to comply with the supplemental agreement.5

       3
        Hajdik agreed that he “backed out of the deal . . . made on the phone call”; however, he
explained that he did so only when the further review of equipment invoices revealed substantial
problems. The jury was not asked whether Hess failed to comply with any subsequent oral
agreement on equipment invoices made after the supplemental agreement was executed.
       4
          Williamson explained that Jesco was required to bill in this manner in order to recoup
its actual costs for this equipment. However, the jury was free to disregard this testimony and
conclude that the contract called for third-party invoices to be submitted purely on a pass-
through basis.
       5
         Jesco additionally asserts that Hakes‟s review was faulty in that he incorrectly struck
through charges for certain items that were on-site and in use, as verified by CTS, an
independent, on-site inspection company hired by Hess. The proper conclusion to be drawn
from the evidence regarding these alleged discrepancies is not entirely clear. Hakes testified that
he acknowledged and remedied a problem with one piece of equipment, “JD 270 Excavator.”
He also testified that his problem with Jesco‟s invoices had more to do with the equipment rates
charged rather than whether certain pieces of equipment were actually being used.
       Hajdik, meanwhile, testified that he largely deferred to Hakes to sort out the equipment
invoices and suggested CTS may have made a mistake. He also suggested that although a
mistake apparently was made in not paying for JD 270, the mistake was cancelled out because
Hess paid for the use of a different excavator that was not used; the result being a “flip,”
according to Hajdik.
       Furthermore, Jesco fails to demonstrate that, even if Hakes mistakenly struck through a
                                                8
3. $40,000 for Fuel

         Perhaps the most concerning of Hajdik‟s alleged admissions is a statement
he made during cross-examination by Jesco‟s attorney, in which Hajdik suggested
Hess might still owe about $40,000 to Jesco. The precise question and answer
occurred as follows:

         Q      And you still have paid zero for labor; true?
         A     Well, what the—what we found is that in looking at those
         books, that we‟ve overpaid equipment substantially. And this is
         company-owned equipment, such that if you just say, what is the total
         bill owed JESCO from Hess, it would turn out that we‟ve overpaid
         labor to the extent—sorry—we‟ve overpaid equipment, non-leased
         equipment, to the extent that we‟ve actually covered the labor. So
         we‟ve actually paid for labor and equipment.
                What I do realize, though, is that we left out fuel. Okay? So
         we still owe a small amount for fuel. About $40,000.6

         Jesco contends that under the Texas Supreme Court‟s opinion in City of
Keller, 168 S.W.3d 802, Hajdik‟s statement should be viewed as an admission of
fact that conclusively proves Hess failed to pay at least $40,000 that it owed to
Jesco.       Hess, on the other hand, urges that Hajdik‟s statement was merely a
charitable throw-away line.           While this testimony certainly constitutes some

few of what appears to be voluminous charges, Hess failed to pay what it was obligated to pay
Jesco under the contract, particularly in light of Hess‟s evidence of overbilling on the project and
testimony from Hajdik that Hess overpaid on equipment to such an extent as to also “cover” the
labor. As stated above, Jesco has the burden on appeal to demonstrate either that the evidence
conclusively demonstrated that Hess failed to comply with the agreement or that the finding was
so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.
See Dow Chem., 46 S.W.3d at 241-2 (legal sufficiency standards); Ortiz, 917 S.W.2d at 772
(factual sufficiency standards).
         6
          Hajdik further suggested that amounts Hess paid to Ferguson Construction to finish the
pipeline project would offset the $40,000. In an alternative theory of the case, Hess contends
that it did not owe Jesco anything because it was entitled to offset amounts paid to Ferguson
against any amounts still due to Jesco. Because of our resolution of the issues in this appeal, we
need not consider the merits of Hajdik‟s statements or Hess‟s alternate theory.

                                                 9
evidence supporting Jesco‟s position on whether Hess failed to comply with the
agreement, we do not agree with Jesco that it is conclusive on the issue.

       Contrary to Jesco‟s suggestion, Hajdik‟s statement does not reach the level
of a conclusive admission on an undisputed fact as contemplated in City of Keller.
In that case, the court explained that undisputed evidence may become conclusive
when a party admits it is true. City of Keller, 168 S.W.3d at 815. The court further
allowed, however, that “[i]t is impossible to define precisely when undisputed
evidence becomes conclusive. . . . Evidence is conclusive only if reasonable
people could not differ in their conclusions, a matter that depends on the facts of
each case.” Id. at 815-16. Hajdik was neither a party to the lawsuit nor Hess‟s
designated representative at trial.7 He was, however, the Hess employee primarily
responsible for the pipeline construction project. Regardless, it cannot be said
either that it was undisputed Hess still owed money to Jesco—indeed, this was the
central contested issue of a lengthy jury trial8—or that Hajdik‟s testimony as a
whole supported the conclusion that Hess still owed Jesco.

       In other parts of his testimony, Hajdik stated that Hess “overpaid” Jesco
overall, Hess overpaid so much on equipment that it had ”covered” labor costs as
well, and Hess paid Jesco what was owed. Moreover, Jesco has not, at trial or on
appeal, attempted to argue or prove that Hajdik‟s statement regarding Hess still
owing for fuel was correct. Jesco, in fact, makes no specific argument that a fuel
charge went unpaid. Instead, Jesco has focused on attempting to prove that Hess
still owed Jesco for labor and equipment, charges that Hajdik insisted Hess had
       7
         Jesco originally named Hajdik as a party, but all claims against him were dismissed
with prejudice by the trial court in granting a motion for partial summary judgment prior to trial.
Jesco does not challenge this ruling on appeal.
       8
        As discussed in more depth below, the record contains significant evidence suggesting
Jesco overcharged Hess and that the parties never were able to reach an agreement regarding
how to determine Jesco‟s actual costs.

                                                10
paid in full.9 Accordingly, Jesco‟s assertion that, under City of Keller, Hajdik‟s
isolated comment regarding fuel constituted an admission conclusively
establishing Hess failed to pay $40,000 is without merit.10


       9
          Jesco suggests that Hajdik‟s statements that Hess had paid in full were based on his
belief that Hess was entitled to offset the amount it paid to Ferguson Construction to complete
the pipeline project from any amounts it might have owed to Jesco. While this is a possible
interpretation for some of Hajdik‟s testimony, it is far from conclusive that all of his statements
were premised on such offsets. For example, at one point in his testimony not expressly related
to Ferguson, Hajdik states: “Now that we‟ve gone and reviewed the financials of JESCO, what
we have found is that we overpaid equipment to the extent that, if you take into account all that
we‟ve paid to date . . . we‟ve essentially paid for equipment and labor for the period from April
17 through the end of June.” Jesco stopped working on the project around June 26.
       10
           In its reply brief, Jesco argues that Hajdik‟s statement that Hess still owed Jesco for
fuel was a “binding admission,” citing Scharer v. John’s Cars, Inc., 776 S.W.2d 228, 232 (Tex.
App.—El Paso 1989, pet. denied). Scharer, however, is readily distinguishable from the present
case. In Scharer, the party defendant acknowledged in his trial testimony that he owed the
plaintiff a specific amount for the very reason claimed by the plaintiff (restoration work
performed on a vehicle). Id. No testimony by the defendant inconsistent with that admission is
referenced in the opinion. Here, Hajdik was not a party to the lawsuit, and Jesco cites no
authority that an employer can be held to have made such a binding admission through the
testimony of an employee. Moreover, as discussed in the text above, Hajdik made several other
statements contradictory to the statement regarding owing for fuel, and Jesco has not attempted
to establish that there was an outstanding balance related to fuel.
        Generally speaking, a party‟s testimonial declarations that are contrary to his or her
position in a case are “quasi-admissions.” Mendoza v. Fid. & Guar. Ins. Underwriters, Inc., 606
S.W.2d 692, 694 (Tex. 1980). Such statements are merely some evidence—the weight of which
must be determined by the factfinder—and are not conclusive upon the party. Id. They are
generally distinguishable from true judicial admissions, which are formal waivers of proof
usually found in pleadings or stipulations. Id. However, a party‟s testimonial quasi-admission
can be considered a judicial admission if: (1) the declaration was made during the course of a
judicial proceeding; (2) it is contrary to an essential fact embraced in the theory of recovery or
defense asserted by the person giving the testimony; (3) it is deliberate, clear, and unequivocal;
(4) the giving of conclusive effect to the declaration will be consistent with the public policy
upon which the rule is based; and (5) the statement is not also destructive of the opposing party‟s
theory of recovery. Id. Again, Hajdik is not a party to this case, and even if his statement could
be considered a declaration on behalf of Hess, given the other statements he made insisting Hess
had paid Jesco all it was due, the statement regarding fuel was not sufficiently deliberate, clear,
and unequivocal to constitute a judicial admission. See, e.g., Hickman v. Dudensing, No. 01-06-
00458-CV, 2007 WL 1500334, at *3-4 (Tex. App.—Houston [1st Dist.] May 24, 2007, pet.
denied) (mem. op.) (holding isolated statements from trial testimony were not deliberate, clear,
and unequivocal in light of entirety of testimony); Drake v. Spriggs, No. 13-03-429-CV, 2006
WL 3627716, at *3 (Tex. App.—Corpus Christi Dec. 14, 2006, no pet.) (mem. op.) (holding
                                                11
       B. The Numbers

       Jesco additionally alleges that the amounts Hess agrees it was required to
pay exceed the amounts it actually paid; thus, according to Jesco, the evidence is
legally and factually insufficient to support the jury‟s negative answer to Question
1.   To compute the amounts owed for labor and equipment, Jesco points
respectively to the testimony of Robert Hancock, a business-evaluation expert
hired by Hess, and Sam Hakes, the local supervisor for Hess on the project who
examined the equipment invoices. Hancock testified that based on his review, the
proper number for Jesco‟s post-April 17 payroll on the project would be “about”
$157,000.      He further stated that multiplying this figure by 1.25 would
approximate the total labor costs to Jesco, inclusive of overhead costs such as
payroll taxes and Worker‟s Compensation insurance. This calculation results in a
total of $196,250.11 Hakes testified that, based on his review, the total cost to
Jesco of equipment used on the project, exclusive of third-party rental equipment,
was “about” $115,000. Both men, however, testified about the difficulties they
encountered in deriving accurate figures for Jesco‟s costs, due at least in part to
Jesco‟s alleged overbilling practices and refusal to substantiate its costs.12 Jesco
asserts that Hess owed it $52,467.63 for third-party invoices; however, Jesco does
not point to any place in the record where anyone from Hess agreed that this was

party‟s statement during deposition that he had received funds to which he was not entitled was
not clear and unequivocal in light of entirety of deposition testimony, since appellee made other
statements defending his entitlement to funds).
       11
          Hajdik testified that Hess determined that a 1.21 multiplier would accurately capture
Jesco‟s labor overhead costs. Such a multiplier would have made Jesco‟s total labor costs
$189,970 based on Hancock‟s estimate of total payroll. Hajdik further acknowledged that if the
proper modifier were significantly higher, Hess might still owe Jesco for its labor costs.
       12
          There was testimony that Jesco billed for certain employees‟ time when they were not
actually working on the pipeline project, billed exaggerated amounts for equipment, padded
third-party equipment invoices, increased their labor rates substantially before “discounting”
them to account for profit margin, and failed to substantiate its charges.

                                               12
an accurate figure for expenses for third-party equipment.13

       For the amount paid, Jesco points to Plaintiff‟s Exhibit 243, which shows
three payments to Jesco for third-party invoices (totaling $74,395.21) and one
additional payment of $249,186.50. These payments total $323,581.71. When
shown Exhibit 243 during his testimony, Hajdik stated that, to his knowledge, the
four payments listed thereon were the only payments made by Hess to Jesco for
work done after April 17.

       Subtracting the amount allegedly paid by Hess for post-April 17 work
($323,581.71) from the amount Jesco contends Hess acknowledged was due for
that work ($196,250 + $115,000 + $52,467.63 = $363,717.63) results in an alleged
balance of $40,135.92.             Jesco maintains that this calculation conclusively
demonstrates Hess still owes Jesco at least this amount.14 However, given the

       13
           In support of the third-party invoice figure, Jesco cites Plaintiff‟s Exhibit 214 as well as
two places in Hajdik‟s testimony. Exhibit 214 is a chart submitted by Hess in response to
Jesco‟s interrogatory requests. It lists several invoices, amounts requested, amounts paid, and
dates paid and notes various challenges to and problems with the amounts requested. The chart,
states that a third-party invoice for $22,007 “was properly paid,” and that Hess owed only
$30,460.63 on another invoice. Those two figures total the $52,467.63 that Jesco says Hess
agreed it owed on third-party invoices. There are also notations on the chart that “Hess overpaid
$32,000” on one invoice and should not have paid another invoice that the chart reflects as
having been paid. Although some of the numbers add up to the amounts Jesco states Hess
agreed were due on third-party invoices, it is difficult to read Exhibit 214 as unequivocally
confirming a certain total amount as being owed for costs post-April 17. In the testimony cited
by Jesco, Hajdik states generally that, under the supplemental agreement, third-party invoices
were to be submitted and paid on a pass-through basis. He further acknowledges payments for
certain of those invoices.
       14
           Jesco alternatively argues that the evidence conclusively demonstrated Hess owed it far
more than $40,000. We find this alternative argument without merit both because Jesco‟s own
discussion regarding the alleged $40,000 owed demonstrates the evidence does not conclusively
support more than that and because the argument is based largely on the assumption that Hajdik
agreed in a June 17, 2009 telephone call that Hess would pay a certain amount for equipment and
later backed out of that agreement. As discussed above, Hajdik explained that although the
parties reached agreement on a figure for equipment in that telephone call, the figure was subject
to further examination of the invoices by Hakes, and when Hakes reviewed those invoices, he
found substantial problems with them. We further note that the jury charge did not inquire
                                                  13
testimony by Hajdik, Hancock, and Hakes regarding the difficulties Hess
encountered in deriving solid figures due to Jesco‟s alleged overbilling practices,
the somewhat ambiguous evidence regarding the amounts due on third-party
invoices, and the acknowledgment by Hancock and Hakes that the best they could
do was to estimate the actual costs for Jesco, we cannot say that the evidence
conclusively demonstrated Hess still owes Jesco under the agreement. The jury
was entitled to take all of these factors into consideration in answering Question 1.
See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986) (discussing
authority of jury to accept or reject lay and expert opinion testimony particularly
on the issue of costs, stating “[i]t has long been the rule of this State that opinion
testimony does not establish any material fact as a matter of law. Further, the
judgments and inferences of experts or skilled witnesses, even when
uncontroverted, are not conclusive on the jury or trier of fact, unless the subject is
one for experts or skilled witnesses alone.”); see also City of Keller, 168 S.W.3d at
820 (citing McGalliard for the proposition that “[e]ven uncontroverted expert
testimony does not bind jurors unless the subject matter is one for experts alone”);
Allseas USA, Inc. v. PS Fabricators, L.L.C., No. 13-11-00186-CV, 2012 WL
7849219, at *5-6 (Tex. App.—Corpus Christi December 28, 2012, no pet.) (mem.
op.) (holding jury was free to disregard expert testimony and give party credit for
certain costs the jury could have found to be adequately documented in the record).
We find no merit in any of Jesco‟s legal sufficiency arguments.

                                IV. Factual Sufficiency

       Other than generally asserting that since the evidence conclusively
demonstrated the opposite of the jury‟s finding, the finding must also have been
against the great weight and preponderance of the evidence, Jesco does not make

regarding any alleged oral agreement subsequent to the supplemental agreement.

                                             14
any arguments specifically in support of its factual-sufficiency challenge. For the
same reasons discussed above regarding Jesco‟s legal sufficiency challenge, we
cannot say that the jury‟s negative answer to Question 1 was against the great
weight and preponderance of the evidence.

                                   V. Conclusion

      Because Jesco has failed to show that the evidence at trial was legally or
factually insufficient to support the verdict, we overrule Jesco‟s three issues.

      We affirm the trial court‟s judgment.




                                        /s/    Martha Hill Jamison
                                               Justice


Panel consists of Justices Frost, Christopher, and Jamison.




                                          15
