
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-00-00720-CV



Vanco Insulation Abatement, Inc., Appellant

v.


City of San Angelo, Appellee





FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT

NO. A-00-0442-C, HONORABLE BARBARA L. WALTHER, JUDGE PRESIDING 





	Vanco Insulation Abatement, Inc. agreed to provide the City of San Angelo a variety
of decontamination services at the Fort Concho Historical Site.  Vanco performed the work and
charged the City $185,592.  Rather than pay this amount, the City paid Vanco $125,048.  When the
City refused to pay the difference, Vanco sued the City in Midland County seeking to collect the
difference, attorney's fees and interest.  The Midland County court transferred the case to Tom Green
County after sustaining the City's venue challenge.  Following a nonjury trial, the district court ruled
that Vanco take nothing on its claims.  On appeal, Vanco contends that the Midland County court
erred in transferring the case to Tom Green County.  Vanco also contends that the district court
misconstrued provisions in the parties' agreement.  Finally, Vanco contends that the district court
erred in failing to file additional findings of fact and conclusions of law.  We will affirm the district
court's judgment.



Background

	The agreement between the City and Vanco listed the following seven items of work
to be performed by Vanco:  (1) location and removal of utilities; (2) removal and decontamination
of structures; (3) soil excavating and stockpiling; (4) backfilling of excavation; (5)  disposal of sump
water; (6) disposal of soil; and (7) disposal of decontamination water.  The City agreed it would pay
Vanco for each item separately.  The agreement also provided that, 

The quantities shown are to be considered approximate only.  The [City] reserves the
right to increase or decrease the amount of any Item or portion of work, to award
Alternate Bid Items in place of, or in addition to Bid Items, or to eliminate any Item
or portion thereof.  

At issue in this case is item three which provided:

3.  Soil Excavation and Stockpiling

Excavate soil within the excavation limits to the grades and lines shown on the Plans. 
Stockpile soil on lined surface as directed by the Engineer with protection from storm
water runon and runoff.

Complete and in Place at the Unit Price of,
twenty two     Dollars and     No     Cents.
($22.00               ) per Cubic Yard.

	4900 C.Y.                   $107,800.00

	After Vanco began working, tests revealed that an additional area of soil was
contaminated.  In accordance with the contract, the City increased the area of excavation in item
three by 784 cubic yards for a total of 5684 cubic yards.  Vanco completed the work in item three
and billed the City for 8436 cubic yards.  Vanco determined this quantity by measuring the amount
of soil that was taken out of the ground, delivered to the landfill, and listed on the landfill's disposal
manifests.  The City paid Vanco for the adjusted amount of 5684 cubic yards.  The City determined
this quantity by measuring the area of the excavation site before the soil was removed from the
ground. 
	Vanco filed suit in Midland County and alleged that while it excavated and stockpiled
soil in accordance with item three of the agreement, the City refused to pay according to the
agreement.  Vanco contended that at issue was the method for calculating the quantity of soil under
item three.  The City answered the lawsuit and moved to transfer venue to Tom Green County. 
Following a hearing on the motion to transfer venue, the Midland County court sustained the City's
motion and transferred the case to Tom Green County.  
	After a trial to the court, the district court rendered judgment that Vanco take nothing
on its claims.  The court filed findings of fact and conclusions of law.  The court found that
 
the contract provided for payment of the excavation and stockpiling based upon
'Complete and in place at the Unit Price of'; and that based upon the contract the per
cubic yard measurement for the soil to be excavated and stockpiled should be
measured based on the volume of the excavation as is measured by measuring the
excavated site and not on the volume of the soil after removal from the ground.  
 

Although Vanco timely requested that the court make four additional findings of fact and one
additional conclusion of law, the court declined to do so.

Discussion

	On appeal, Vanco complains about the transfer of the case to Tom Green County, the
court's failure to file additional findings of fact and the court's interpretation of the portion of the
parties' agreement relating to item three which addressed excavating and stockpiling soil.  
Venue
	Vanco contends that the Midland County court erroneously transferred the case to
Tom Green County.  After Vanco filed suit in Midland County, the City filed a motion to transfer
venue to Tom Green County.  The City contended that venue was proper in Tom Green County
pursuant to the general venue provision because a substantial part of the events or omissions giving
rise to Vanco's claim occurred in Tom Green County and the City maintained its principal office in
the state in Tom Green County.  See Tex. Civ. Prac. & Rem. Code Ann. §§ 15.001(b)(2), .002(a)(1)-(3) (West 1986 & Supp. 2001); Tex. R. Civ. P. 87(2).  The City contended that there was no basis
that would mandate or permit venue in Midland County.  Following a hearing, the Midland County
court sustained the City's motion and transferred the case to Tom Green County.
	In determining whether a court properly transferred a case to another county, the
appellate court reviews the entire record, including the trial on the merits, and determines whether
probative evidence exists to show that venue was proper in the county where the judgment was
rendered.  Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757-58 (Tex. 1993); Schlobohm v. Schapiro, 784
S.W.2d 355, 359 (Tex. 1990); Tex. Civ. Prac. & Rem. Code Ann. § 15.064(b) (West 1986).  
	Vanco contended that venue was proper in Midland County because the City breached
its duty to pay Vanco in Midland County.  In reviewing the entire record there is no evidence that
the City was required to pay Vanco in Midland County.  The City's principal place of business was
located in Tom Green County; therefore, under the general provision venue was proper in Tom
Green County.  Tex. Civ. Prac. & Rem. Code Ann. § 15.002(a)(3) (West Supp. 2001).  Because
judgment was rendered in a county where venue was proper, we conclude that there was no error in
the transfer of the case from Midland County to Tom Green County.  Vanco's third issue is
overruled.

Failure to Make Additional Findings of Fact 
	Vanco also contends that the district court erred by failing to make additional findings
of fact and a conclusion of law which caused Vanco to have to guess as to the court's reasoning.  We
disagree.
	The four additional findings Vanco requested included the following:

	1.	The contract, the subject of this suit, was drafted by Defendant, City of San
Angelo;

	2.	The phrase "Complete and in place," as used in the contract, the subject of this
suit, means the quantity of soil before it was excavated or stockpiled;


	The quantity of soil stockpiled was substantially equivalent to the amount
measured at the disposal facility being approximately 8436 cubic yards of soil.

	4.	The Defendant did not make payments to Plaintiff based upon a stock piled
quantity of 8436 cubic yards of soil.


Vanco also requested an additional conclusion of law that "The contract, the subject of this suit, is
an unambiguous contract."  The court did not make any of the requested findings or the requested
conclusion.  
	A court is not required to make additional findings and conclusions that are not
relevant to controlling issues in the case.  Rafferty v. Finstad, 903 S.W.2d 374, 376 (Tex.
App.--Houston [1st Dist.] 1995, writ denied); Associated Tel. Directory Publishers v. Five D's
Publishing Co., 849 S.W.2d 894, 901 (Tex. App.--Austin 1993, no writ); Tex. R. Civ. P. 298.  Here,
the district court determined the controlling issue in the findings of fact--based on the agreement,
the quantity of soil at issue for item three is determined by measuring the site before excavation.  We
hold that none of the requested findings addressed controlling issues that had not already been
determined and explained in the filed findings of fact and conclusions of law.  Vanco's first issue
is overruled.  

Method of Measurement
	Vanco contends that the court erred in ruling that the proper method to determine the
quantity of soil at issue for item three of the parties' agreement was to measure the area of the
excavation site rather than measure the volume of soil removed from the ground and delivered to the
landfill.  Vanco argues that in interpreting item three the court should have applied the same method
used for determining how much soil was at issue in item six which addressed disposal of soil. The
quantity of soil at issue in item six was determined by measuring the actual volume of soil deposited
into the landfill as reflected on the landfill's manifests.  
	Because neither party contends that the agreement is ambiguous, construction of the
agreement is a question of law for the court to determine.  City of Pinehurst v. Spooner Addition
Water Co., 432 S.W.2d 515, 518 (Tex. 1968); Phillips Natural Gas Co. v. Cardiff, 823 S.W.2d 314,
317 (Tex. App.--Houston [1st Dist.] 1992, writ denied).  In construing an agreement, the court gives
effect to the objective intention of the parties as expressed or as apparent from the writing.  City of
Pinehurst, 432 S.W.2d at 518.  It is assumed that the parties intended to give effect to every clause
in the agreement and did not intend to render any clause meaningless.  Id. 
	Item three contained one price for excavating and stockpiling an estimated 4900 cubic
yards of soil.  The City's expert, Jack Albert, testified that this estimate was determined by
measuring the area of the excavation site--the area described in the agreement that was "within the
excavation limits to the grades and lines shown on the Plans."  The agreement also provided that the
area of excavation could be increased or decreased by the City.  In fact after an additional area was
determined to have contaminated soil, the City increased the area for item three by 784 cubic yards. 
Item three does not refer to any other measuring method nor are there other references in the
agreement indicating a different measurement method for item three.  Measuring the area to arrive
at the initial 4900 cubic yards and the lack of any other measurement method for item three in the
agreement indicates that payment for item three would be based on a measurement of the area to be
excavated and stockpiled.  The court's finding is supported by the evidence.  Vanco's second issue
is overruled.

Conclusion

	We affirm the district court's judgment.


  
					Lee Yeakel, Justice
Before Chief Justice Aboussie, Justices Yeakel and Patterson
Affirmed
Filed:   September 13, 2001
Do Not Publish
