                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00023-CV



     EDUARDO CAVENDISH D/B/A VANGUARD
      PORTABLE SOLUTIONS, INC., Appellant

                            V.

        ATASHI TOWN HOMES, LLC, Appellee



        On Appeal from the County Court at Law
               Rockwall County, Texas
              Trial Court No. 1-13-464




       Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Moseley
                                      MEMORANDUM OPINION
         Eduardo Cavendish d/b/a Vanguard Portable Solutions, Inc. (Cavendish), sued Atashi

Town Homes, LLC (Atashi), for breach of contract, quantum meruit, and unjust enrichment

arising from the alleged failure to pay for services rendered in connection with Cavendish’s

purported engagement to construct a home for Atashi. 1 In a verified answer, Atashi stated

(1) that it paid Cavendish $300.00 for a topographic map, (2) that Cavendish sent a proposed

contract to Atashi for review, (3) that Cavendish was paid $10,000.00 “toward the anticipated

[construction] with the understanding that [Cavendish’s] proposal was under review,” (4) that

Atashi rejected Cavendish’s proposal for the build, (5) that there was no contract between Atashi

and Cavendish, and (6) that Atashi had overpaid Cavendish. Due to the overpayment, Atashi

filed a counterclaim for money had and received.

         After a bench trial, the court ruled that Cavendish take nothing on his claims and awarded

Atashi $1,300.00 on its claim for money had and received. On appeal, Cavendish challenges the

legal and factual sufficiency of the evidence supporting the judgment. 2 Because we find that the

evidence is legally and factually sufficient to support the trial court’s findings, we affirm the trial

court’s judgment.
1
 The original style of this case was “Eduardo Cavendish d/b/a Vanguard Portable Solutions, Inc. and Vanguard
Portable Solutions, Inc. v. Gus Atashi Rang and Atashi Town Homes, LLC.” During trial, Cavendish told the court,
“Plaintiffs will drop Vanguard Portable Solutions, Inc., as a plaintiff and will nonsuit -- the remaining plaintiff
Eduardo Cavendish, will nonsuit claims in the petition against Dr. Rang personally and just continue against Atashi
Town Homes, LLC.” Despite inclusion of the original style of the case, which included four parties, the substance
of the trial court’s final judgment involved only “Cavendish d/b/a Vanguard Portable Solutions, Inc.” and Atashi.
Although the notice of appeal used the original style of the case, we have amended the style of the case to reflect the
true remaining parties to the appeal.
2
 Originally appealed to the Fifth Court of Appeals in Dallas, this case was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We
follow the precedent of the Fifth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.

                                                          2
I.          The Evidence

            Homebuilder Cavendish had completed construction of approximately twenty homes in

the Chandler’s Landing subdivision of Rockwall, Texas, when his work caught the attention of

Dr. Ghassem Atashi Rang. Rang wanted to build a residential rental property for his company,

Atashi. Rang called Cavendish to ask if his company could build a home on a lot owned by

Atashi.

            Cavendish testified that he and Rang met on the lot and began discussing plans for the

home in October 2012. Rang paid Cavendish $300.00 for a topographical survey that was

completed by Rhodes Surveying on October 23, 2012. According to Cavendish, he quoted Rang

a build price of eighty-five dollars per square foot. According to Rang, Cavendish quoted a price

of eighty dollars per square foot and said that the home could be built for around $200,000.00.

Cavendish testified that Rang had originally contemplated a 2,700 square-foot home, but later

decided to build a 3,050 square-foot home. Rang asked Cavendish to provide Atashi with a

contract memorializing the offer so that it could be reviewed by Atashi’s counsel.

            Cavendish’s initial proposed contract, which he provided to Rang “about a month or two

months after [they] started . . . talking about the . . . house,” listed the company, Vanguard

Portable Solutions, Inc., as the contractor. 3 According to Rang, the price of this initial contract

was higher than the eighty dollar per square foot price he had been quoted because it included

separate fees for building the foundation and a retaining wall. Rang turned the contract over to

Atashi’s counsel for review.


3
    This initial proposed offer is not included in our appellate record.
                                                               3
       Cavendish admitted that he did not wait for payment or written contract before beginning

work on the project. However, Cavendish believed that all was fine because he spoke with Rang

around three times per week, met with him several times, and was assured that Rang was aware

that work on the project had begun. Cavendish met and spoke with city inspectors, drainage

engineers, foundation engineers, a concrete subcontractor, and an architect. Cavendish testified,

“I’d been asking [Atashi] to sign the contract since December [2013]. In December [Rang]

decided to give me another excuse. Then I told him, look, I don’t do job anymore . . . and I’ve

been paying the subs with my money.” Cavendish further testified that Rang wrote him a

$10,000.00 check on the “date [Cavendish] decided to quit the job” while the proposed contract

was pending counsel’s review.

       Atashi’s counsel discovered that the company charter for Vanguard Portable Solutions,

Inc., had been forfeited. Accordingly, Rang did not sign Cavendish’s initial proposed contract.

Instead, Rang proposed a counteroffer in which he agreed to pay $240,000.00 for the build. The

counteroffer was rejected by Cavendish.

       Nevertheless, Cavendish continued to work on the project. In March 2013, Cavendish

filed a building permit application with the City of Rockwall listing himself, individually, as the

contractor. Cavendish stated on the building permit that the home would be 3,738 square feet—

not 3,050 square feet—with an estimated value of $210,000.00. Cavendish did not pay for the

building permit and failed to list the name of the building owner on the application because there

was no agreement on the build price.




                                                4
         Also in March 2013, Cavendish sent another offer and proposed contract listing (1) “VPS

Investments” as the contractor (even though Cavendish testified that he, individually, was the

contractor), (2) “Gus Atashi Rang” as the owner (instead of Atashi), and (3) $259,675.00 as the

final price for the build. The proposed contract required Rang to “pay a sum of ten thousand

Dollars, ($10,000.00), upon signing of this contract and before construction begins as a deposit

and part of the purchase price of the project.” The contract also contained a set payment

schedule with the last installment due on the ninth week of the build. Atashi did not accept the

offer.

         According to Cavendish, negotiations broke down because Cavendish wanted to be paid

up front, and Atashi wanted to structure the payments. Rang testified that after he sent the

counteroffer to Cavendish, Cavendish agreed that he would complete construction before

demanding payment, but only if Atashi agreed to a new price of ninety dollars per square foot.

On April 4, 2013, Rang, as president of Atashi, sent a letter to Cavendish stating that he had

decided not to build on the lot because they could not come to an agreement on the contract. At

trial, Cavendish candidly admitted that he received the letter and that “the contract never

happened.” Rang testified that Atashi did not hire Cavendish to build the house.

         It is undisputed that no ground was broken on the lot. However, Atashi offered to pay

Cavendish $638.00 for his “time and effort.” Arguing that this sum was not enough, Cavendish

filed suit. At trial, Cavendish argued that he should receive $25,000.00. Cavendish explained

that he expected a $100,000.00 profit on the build job, that a build job is comprised of four




                                                5
phases, that he had completed the first planning phase, and that he should receive one-fourth of

the expected profit.

            Cavendish testified that he met with approximately twenty to twenty-five subcontractors,

spent more than 200 hours on the build job, and received and paid the following invoices: (1) a

$5,950.00 invoice from engineer Allen Gustavson 4; (2) a $1,100.00 invoice from Geotechnical

Solutions; (3) a $1,127.00 invoice from foundation engineer Eric David, and; (4) a $500.00

invoice from drainage engineer Tom Witherspoon. Cavendish claimed that the total paid to

others was around $8,700.00 and that Atashi had paid $10,000.00 toward expenses, leaving

$1,300.00. 5

            As a result of Cavendish’s testimony, Atashi amended its counterclaim to state that

Cavendish had received $1,300.00, which should be reimbursed. The trial court agreed with

Atashi, entered a take-nothing judgment against Cavendish and awarded the $1,300.00 to Atashi

on its counterclaim.

II.         Legally and Factually Sufficient Evidence Supported the Trial Court’s Take-
            Nothing Judgment

            A.       Standard of Review

            We review the sufficiency “of the evidence to support a trial court’s judgment after a

bench trial under the same standards applicable to a jury’s verdict.” See Hampden Corp. v.

Remark, Inc., No. 05–13–00529–CV, 2014 WL 2921655, at *6 (Tex. App.—Dallas Jun. 25,

2014, pet. denied) (mem. op.) (citing Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per
4
    Gustavson’s invoice was based on a rate of “$1.50 per square feet Under Roof” and a size of 3,968 square feet.
5
 While Cavendish testified that Atashi had the blueprints to the house, Rang testified that Atashi did not have the
plans.
                                                            6
curiam)). “In a bench trial where no findings of fact or conclusions of law are requested by the

parties or filed by the trial court, the judgment implies all findings of fact necessary to support

it.” Johnson v. Oliver, 250 S.W.3d 182, 186 (Tex. App.—Dallas 2008, no pet); see Moncrief Oil

Int’l, Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013); Worford v. Stamper, 801 S.W.2d

108, 109 (Tex. 1990) (per curiam). “If a reporter’s record is filed, an appellant may challenge

the legal and factual sufficiency of the trial court’s implied findings.” Hampden Corp., 2014 WL

2921655, at *6.

         “In evaluating the legal sufficiency of the evidence to support a finding, we must

determine whether the evidence as a whole rises to a level that would enable reasonable and fair-

minded people to differ in their conclusions.” Celmer v. McGarry, 412 S.W.3d 691, 700 (Tex.

App.—Dallas 2013, pet. denied). “When a party challenges the legal sufficiency of the evidence

supporting an adverse finding on an issue on which the party had the burden of proof, it must

show that the evidence establishes as a matter of law all vital facts in support of the issue.”

Hampden Corp., 2014 WL 2921655, at *6 (citing Dow Chem. Co. v. Francis, 46 S.W.3d 237,

241 (Tex. 2001) (per curiam); PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 710

(Tex. App.—Dallas 2011, pet. denied)). “The appellant must show that there is no evidence to

support the trial judge’s finding and that the evidence conclusively establishes the finding urged

by the appellant.” Id. (citing R.J. Suarez Enters., Inc. v. PNYX L.P., 380 S.W.3d 238, 245 (Tex.

App.—Dallas 2012, no pet.)). 6


6
 “‘Evidence is conclusive only if reasonable people could not differ in their conclusions, a matter that depends on
the facts of each case.’” Hampden Corp., 2014 WL 2921655, at *6 (quoting City of Keller v. Wilson, 168 S.W.3d
802, 816 (Tex. 2005)).
                                                        7
        “When we review a finding for factual sufficiency, we consider all of the evidence and

will set aside a finding only if it is so contrary to the overwhelming weight of the evidence as to

be clearly wrong and unjust.” Edwards v. Mid-Continent Office Distribs., L.P., 252 S.W.3d 833,

836 (Tex. App.—Dallas 2008, pet. denied) (citing Francis, 46 S.W.3d at 242; Cain v. Bain, 709

S.W.2d 175, 176 (Tex. 1986) (per curiam)).

        In our review, we must credit evidence favorable to the finding if a reasonable fact-finder

could and disregard contrary evidence unless a reasonable fact-finder could not. Hampden

Corp., 2014 WL 2921655, at *6 (citing Wilson, 168 S.W.3d at 827).

        B.     There Was No Express or Implied Contract

        Cavendish argues that the trial court erred in entering a take-nothing judgment on its

breach of contract claim. “The elements of a breach of contract claim are (1) the existence of a

valid contract, (2) the plaintiff’s performance or tendered performance, (3) the defendant’s

breach of the contract, and (4) damages as a result of the breach.” Jespersen v. Sweetwater

Ranch Apts., 390 S.W.3d 644, 658 (Tex. App.—Dallas 2012, no pet.). “Whether an alleged

agreement constitutes an enforceable contract is generally a question of law.” Effel v. McGarry,

339 S.W.3d 789, 792 (Tex. App.—Dallas 2011, pet. denied) (citing Searcy v. DDA, Inc., 201

S.W.3d 319, 322 (Tex. App.—Dallas 2006, no pet.)). There is no binding contract without

“(1) an offer; (2) an acceptance in strict compliance with the terms of the offer; (3) a meeting of

the minds; [and] (4) each party’s consent to the terms . . . .” Id. (citing Searcy, 201 S.W.3d at

322).




                                                 8
       On appeal, Cavendish admits that there was no final written agreement, but argues that a

contract should be implied because the parties acted as if there was an agreement. However,

“[f]or a contract to be formed, the minds of the parties must meet with respect to the subject

matter of the agreement and all its essential terms.” Argo Data Res. Corp. v. Shagrithaya, 380

S.W.3d 249, 274 (Tex. App.—Dallas 2012, pet. denied) (citing Effel, 339 S.W.3d at 792). “The

parties must assent to the same thing in the same sense at the same time.” Id. “Their assent must

comprehend the whole proposition, and the agreement must comprise all of the terms that they

intend to introduce into it.” Id. “Furthermore, the legal obligations and liability of the parties

must be sufficiently definite.” Id.

       Cavendish testified that Atashi originally wanted a 2,700-square-foot house, but settled

on a 3,050-square-foot house. However, Cavendish’s building permit stated that the home would

be 3,738 square feet, and his invoices from Gustavson were based on an estimated 3,968 square

feet. Based on these facts, the trial court was free to find that there was no meeting of the minds

on the work to be done. Although Atashi paid $300.00 for a topographical survey and another

$10,000.00 to cover Cavendish’s expenses for his continued work on the home, Cavendish

testified that he initially quoted one price, while Rang testified that he had initially quoted a

lower price. Thus, the trial court could have determined that there was never an agreement on

the price of the home. Due to Cavendish’s testimony that he and Atashi could not agree on the

payment structure, the court could find that there was no agreement as to the phases of the build,




                                                9
when payments would be due, or whether Cavendish would be entitled to any payment prior to

completion of the build. 7 In sum, there was no agreement on the material terms of the contract.

            “A contract must be definite because a party cannot accept an offer to form a contract

unless the terms of that contract are reasonably certain[,] and the court must be able to determine

the legal obligations and liabilities of the parties.” Id. “Although Texas courts favor validating

contracts, we may not create one where none exists.” Id. Based on the facts of this case, which

demonstrate an absence of a meeting of the minds, we find that a contract cannot be implied.

Even Cavendish admitted that the negotiations with Atashi broke down and that “the contract

never happened.”

            Accordingly, Cavendish cannot show that he conclusively established his breach of

contract claim or that the trial court’s judgment was so contrary to the overwhelming weight of

the evidence as to be clearly wrong and unjust. We find the evidence both legally and factually

sufficient to support the trial court’s implied finding that there was no meeting of the minds

regarding the build and, thus, no express or implied contract.

            C.       Sufficient Evidence Supports Trial Court’s Decision on Equitable Claims

            Next we address whether the evidence is legally and factually sufficient to support the

trial court’s denial of equitable relief to Cavendish. Cavendish sought to recover under the

theories of unjust enrichment and quantum meruit. 8


7
    Further, the record was unclear as to when the construction was to be completed.
8
 A plaintiff who seeks to recover the reasonable value of services rendered or materials supplied will be permitted to
recover in quantum meruit or unjust enrichment only when there is no express contract covering those services or
materials. Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 683–84 (Tex. 2000); Truly v. Austin, 744 S.W.2d
934, 936 (Tex. 1988) (citing Black Lake Pipeline Co. v. Union Constr. Co., 538 S.W.2d 80, 86 (Tex. 1976), rev’d on
                                                           10
        “A party may recover under the unjust enrichment theory when one person has obtained a

benefit from another by fraud, duress, or the taking of an undue advantage.” Heldenfels Bros.,

Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992). Here, Cavendish testified that he

spent over 200 hours on the project in making telephone calls and working with subcontractors

and city inspectors. Rang testified (1) that Cavendish was building other homes in Chandler’s

Landing, (2) that the subcontractors were already working for Cavendish on other projects,

(3) that the plan and blueprints for his proposed home were being used on a nearby lot that

Cavendish owned, and (4) that he never received the plans or blueprints for his home even

though he had paid for them. Thus, Rang questioned whether the 200 hours of work “was for my

project or for the others.”        As the fact-finder, the trial court could have determined that

Cavendish’s work reflected time spent mostly on other projects.

        Also, the evidence showed that Atashi paid $10,000.00 to Cavendish to cover

Cavendish’s expenses in obtaining the plan and blueprints, but that Rang did not receive any

blueprints and no ground was broken on the project. Thus, the trial court could have determined

that Atashi did not receive any benefit that it had not already paid for. Further, because there

was never an understanding that Cavendish would be entitled to payment for anything other than

his expenses during the planning phase, the court could have found that Atashi did not benefit by

fraud, duress, or the taking of unfair advantage.               Thus, Cavendish cannot show that he




other grounds by Sterner v. Marathon Oil Co., 767 S.W.2d 686 (Tex. 1989); Woodard v. Sw. States, Inc., 384
S.W.2d 674, 675 (Tex. 1964)). “That is because parties should be bound by their express agreements. When a valid
agreement already addresses the matter, recovery under an equitable theory is generally inconsistent with the
express agreement.” Fortune Prod., 52 S.W.3d at 684.
                                                      11
conclusively established his breach of contract claim or that the trial court’s judgment was so

contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

       We reach a similar conclusion with respect to Cavendish’s quantum meruit claim.

“Quantum meruit is an equitable theory of recovery . . . based on an implied agreement to pay

for benefits received.” Heldenfels Bros., 832 S.W.2d at 41 (citing Vortt Exploration Co. v.

Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990)). “[A] trial court exercises broad

discretion in balancing the equities involved in a case seeking equitable relief.” Edwards, 252

S.W.3d at 836 (citing In re Gamble, 71 S.W.3d 313, 317 (Tex. 2002) (orig. proceeding);

Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939)). “We will not disturb a

trial court’s ruling on a claim seeking equitable relief unless it is arbitrary, unreasonable, and

unsupported by guiding rules and principles.” Id. (citing Cire v. Cummings, 134 S.W.3d 835,

838 (Tex. 2004)).

       “To recover under the doctrine of quantum meruit, a plaintiff must establish that:

1) valuable services and/or materials were furnished, 2) to the party sought to be charged,

3) which were accepted by the party sought to be charged, and 4) under such circumstances as

reasonably notified the recipient that the plaintiff, in performing, expected to be paid by the

recipient.” Heldenfels Bros., 832 S.W.2d at 41 (citing Vortt Exploration, 832 S.W.2d at 944).

       Under the theory of quantum meruit, the plaintiff may be able to recover the reasonable

value of his services as determined by a fact-finder. See Celmer, 412 S.W.3d at 709. Cavendish

argues that he provided valuable services in contacting subcontractors and obtaining plans on

Atashi’s behalf. Yet, the trial court could have decided that Cavendish’s services in contacting

                                               12
third parties were conducted mostly for his own benefit for other projects. Even assuming that

valuable services were provided to Atashi, Cavendish had to show that Atashi expected to

compensate him. See Gen. Capital Grp. Beteligungsberatung GMBH v. AT & T, 407 S.W.3d

507, 512 (Tex. App.—Dallas 2013, pet. denied).

            Cavendish testified about his expected profit, that he divided the build into four separate

phases and that he was entitled to $25,000.00 in profit for each phase. However, nothing in the

record suggested that Atashi was aware of the four phases, the expected profit, or that it would

be required to compensate Cavendish after each phase. In fact, the last counteroffer sent by

Cavendish listed seven events that would trigger payment, with the first payment being

“$10,000.00 . . . [triggered] by the signature of the contract.” 9 Because no contract was signed,

the evidence indicates that Atashi did not expect to compensate Cavendish until there was a

signed contract to build. Moreover, Cavendish did not expressly testify that he expected to be

paid for the telephone calls and meetings during the planning phase in the absence of any

contract. Instead, he testified that Ghessem never told him that Atashi would not compensate

him for these efforts.

            As a finder of fact, the trial court could have decided that Cavendish’s services were not

provided under circumstances that reasonably notified Atashi that he expected to be paid for

anything other than his expenses during the planning phase.                 Thus, Cavendish cannot

conclusively establish that there was an implied agreement to pay for his efforts during the

planning phase. Accordingly, we cannot say that the trial court’s judgment that Cavendish take


9
    The second phase required the city permit to be obtained.
                                                           13
nothing by his quantum meruit claim is so contrary to the overwhelming weight of the evidence

as to be clearly wrong and unjust.

         We find the evidence legally and factually sufficient to support the trial court’s judgment

that Cavendish failed to prove a breach of contract or that he was entitled to recover under

theories of unjust enrichment or quantum meruit. We overrule Cavendish’s first point of error.

III.     Legally and Factually Sufficient Evidence Supported the Trial Court’s Judgment on
         Atashi’s Counterclaim

         Cavendish also attacks the legal and factual sufficiency of the trial court’s finding that

Atashi was entitled to recover on its counterclaims.                    Because, under this point of error,

Cavendish is attacking the legal sufficiency of an adverse finding for which he did not have the

burden of proof, he must demonstrate that there is no evidence to support the adverse finding.

See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). 10                         If the evidence is legally

sufficient, then we review the evidence for factual sufficiency to determine whether it “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.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).

         When Cavendish threatened to leave the job because he was paying for expenses out of

his own pocket, Rang gave Cavendish $10,000.00 to cover his expenses. Cavendish used the

money and continued to work on the build in the absence of either a signed contract or a meeting


10
  A no evidence point will be sustained when the evidence offered to prove a vital fact is no more than a mere
scintilla. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). “More than a scintilla of
evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about
a vital fact’s existence.” Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002). Evidence is
legally sufficient if it “‘would enable reasonable and fair-minded people to reach the verdict under review.’”
Lambright v. Trahan, 322 S.W.3d 424, 430 (Tex. App.—Texarkana 2010, pet. denied) (quoting Wilson, 168 S.W.3d
at 827).
                                                         14
of the minds on the essential terms. Cavendish testified that $1,300.00 remained after his

expenses had been paid.           In an attempt to characterize Rang’s payment for expenses as

something other than what it was, Cavendish argues on appeal that the $1,300.00 “down

payment is reasonably held by [Cavendish] as he was not compensated according to the terms of

the agreement between the parties.”

        “The claim for money had and received seeks equitable relief.” Edwards, 252 S.W.3d at

836 (citing Stonebridge Life Ins. Co. v. Pitts, 236 S.W.3d 201, 203 n.1 (Tex. 2007) (per curiam);

Acoustical Screens in Color, Inc. v. T.C. Lordon Co., 524 S.W.2d 346, 350 (Tex. Civ. App.—

Dallas 1975, writ ref’d n.r.e.)). “[A]n action for money had and received is not to be denied or

restricted by technicalities and formalities because such an action looks to the abstract justice of

the case.     It simply inquires whether defendant holds money belonging to the plaintiff.”

Acoustical Screens in Color, Inc. v. T.C. Lordon Co., 524 S.W.2d 346, 350 (Tex. Civ. App.—

Dallas 1975, writ ref’d n.r.e.)

        As we have previously explained, there was no express or implied agreement between

Cavendish and Atashi, and nothing otherwise suggested that Atashi would be required to

compensate Cavendish for anything other than his expenses during the planning phase.

Accordingly, we find the evidence legally and factually sufficient to support the trial court’s

judgment on Atashi’s counterclaim. We overrule Cavendish’s second point of error. 11




11
 Due to our disposition on Cavendish’s first two points of error, we need not address his argument that the trial
court erred in failing to award his attorney fees.
                                                       15
IV.   Conclusion

      We affirm the trial court’s judgment.



                                              Bailey C. Moseley
                                              Justice

Date Submitted:      November 5, 2014
Date Decided:        December 16, 2014




                                                16
