Affirmed and Memorandum Opinion filed April 17, 2014.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-13-00125-CV

                     MAX PROTETCH, INC., Appellant
                                       V.
                         JOHN A. HERRIN, Appellee

                   On Appeal from the 125th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2009-29153

                 MEMORANDUM OPINION

      Max Protetch, Inc. appeals the trial court’s judgment in favor of John A.
Herrin in connection with Herrin’s breach of contract claim. We affirm.

                                 BACKGROUND

      The late Scott Burton was a sculptor known for his furniture designs. Herrin
and his wife, Carola, discovered Scott Burton’s work and became interested in
purchasing a Scott Burton arch table and chairs. At that time, Protetch, Inc. had
the exclusive right to market, fabricate, and sell Scott Burton pieces.

      The Herrins met Protetch, Inc.’s owner, Max Protetch, in New York in
December 2004 to discuss purchasing a Scott Burton table. After learning the
price of a table and chairs, the Herrins decided to purchase only a table. Max
Protetch directed the Herrins to the Cooper-Hewitt, National Design Museum in
New York to view a Scott Burton table that was on display. He also told the
Herrins that the McNay Art Museum in San Antonio was displaying Scott Burton
pieces.

      The Herrins visited the Cooper-Hewitt, National Design Museum and
inspected the Scott Burton table and chairs. The Herrins testified that the table on
display was a “honey, golden color and it had a translucency where you could just
sense that there was stainless steel beneath it.”        The Herrins later visited the
McNay Art Museum in San Antonio and testified that the Scott Burton chairs on
display had the same finish as the table on display at the Cooper-Hewitt, National
Design Museum.

      After inspecting the table at the Cooper-Hewitt, National Design Museum,
the Herrins decided to purchase a table from the same edition. Max Protetch
warned the Herrins that there might be some variation in the color and finish. Max
Protetch sent Herrin an invoice on March 4, 2005, reflecting the purchase of a
Scott Burton table for $65,000. The invoice included this information: (1) the
parties’ name; (2) a reference to the table being a part of a Scott Burton edition of
five;1 (3) the table’s length, width, and height; (4) the table’s price; (5) payment
terms; and (6) a reference to the table’s steel composition. Herrin testified that the
table’s color was not specified in the invoice because there was no question what

      1
        Max Protech testified at trial that “3/5D” in the invoice meant that the table was
“number 3 in an edition of 5.”

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the color was to be.

       The Herrins paid the balance due on the table in February 2006. Peter
Versteeg fabricated the table.2        Versteeg testified that the table was properly
fabricated in accordance with the Scott Burton’s blueprints.                The table was
delivered to the Herrins’ Houston home on May 31, 2007.

       Herrin testified that he was extremely displeased with the color of the table
because it did not match the table on display at the Cooper-Hewitt, National
Design Museum or the chairs on display at the McNay Art Museum. The next day,
Herrin called and emailed Max Protetch to complain that the color and finish of the
table were incorrect.

       Max Protetch traveled to Houston in July 2007 to inspect the table. After
inspecting the table, Max Protetch offered to refinish it. Max Protetch later learned
that the table could not be refinished; he offered to have a new table fabricated for
Herrin. Max Protetch sent Herrin pictures of the new table. Herrin testified that
the pictures revealed that the second table had the same finish and was essentially
the same color. Herrin told Max Protetch in an email that he was dissatisfied with
the appearance of the second table. Max Protetch responded to Herrin’s complaint
by stating:

       We should also remind ourselves that the one you initially saw is
       more than 10 years old. The translucent gold brown quality is
       something that develops as the steel ages, and the same effect can be
       expected with this new piece a few years down the road.

Herrin rejected the second table and demanded his money back.

       Protetch, Inc. refused to refund Herrin’s money, and Herrin sued Protetch,

       2
          Versteeg worked directly with Scott Burton before he died and was the only person to
fabricate Scott Burton tables at the time of this suit.

                                              3
Inc. for breach of contract.3 The case was tried before a jury. At trial, Herrin
introduced pictures of the first table he received, the second table he was offered,
the pair of Scott Burton chairs on display at the McNay Art Museum, and a
prototype of the Scott Burton table.4 The pictures of the first table he received and
the second table he was offered show that the tables were dark grey. The picture of
the chairs at the McNay Art Museum and the prototype show that these pieces
were a honey gold color. The jury found that Protetch, Inc. breached its contract
with Herrin. This appeal followed.

                                             ANALYSIS

       In one issue on appeal, Protetch, Inc. asserts that the evidence is legally and
factually insufficient to support the jury’s finding of breach of contract. Protetch,
Inc. argues that (1) the parties’ contract did not contain a provision for a particular
color or finish for the table; (2) the parol evidence rule prohibits Herrin from
adding additional terms to the contract; (3) color was not a term of the parties’
agreement because Herrin never informed Protetch, Inc. that he wanted the table to
be a particular color; (4) Herrin was warned that no particular color or finish was
guaranteed; and (5) expert testimony established that the table was fabricated
properly in compliance with the deceased artist’s blueprints.

I.     Legal and Factual Sufficiency Challenges

       A.        Standard of Review and Applicable Law

       When reviewing the legal sufficiency of the evidence, we review the
evidence in the light most favorable to the challenged finding and indulge every
reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d
       3
           Carola Herrin was not a party to the suit.
       4
        Max Protech testified at trial that a prototype is “a piece that’s made in preparation for
making an edition and sometimes there are changes from the prototype, working out ideas.”

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802, 822 (Tex. 2005). We credit favorable evidence if a reasonable fact finder
could do so, and disregard contrary evidence unless a reasonable fact finder could
not do so. Id. at 827. The evidence is legally sufficient if it would enable a
reasonable and fair-minded person to reach the verdict under review. Id. Evidence
is legally insufficient when (1) there is a complete absence of evidence of a vital
fact; (2) the court is barred by rules of law or evidence from giving weight to the
only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital
fact is no more than a mere scintilla; or (4) the evidence establishes conclusively
the opposite of the vital fact. Id. at 810.

      When reviewing the factual sufficiency of the evidence, we must consider
and weigh all the evidence. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d
757, 761 (Tex. 2003). We can set aside a verdict only if the evidence is so weak or
if the finding is so against the great weight and preponderance of the evidence that
it is clearly wrong and manifestly unjust. Id. We may not substitute our own
judgment for that of the trier of fact. Mar. Overseas Corp. v. Ellis, 971 S.W.2d
402, 407 (Tex. 1998). The amount of evidence necessary to affirm a judgment is
far less than that necessary to reverse a judgment. Jones v. Smith, 291 S.W.3d 549,
555 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

      B.     The Agreement

      The jury answered “yes” to a question in the jury charge asking, “Did Max
Protetch, Inc. fail to comply with the parties’ agreement?” The jury charge did not
define the term “agreement.” Protetch, Inc. does not argue on appeal that the trial
court erred by failing to define agreement in the jury charge.

      The essential elements of breach of contract are (1) the existence of a valid
contract; (2) performance or tendered performance by the plaintiff; (3) breach by
the defendant; and (4) damages as a result of the defendant’s breach. West v.
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Triple B Servs., LLP, 264 S.W.3d 440, 446 (Tex. App.—Houston [14th Dist.]
2008, no pet.). A breach occurs when a party fails or refuses to do something he
has promised to do. Id. To prove the existence of a valid contract, a plaintiff must
establish: (1) an offer; (2) an acceptance in strict compliance with the terms of the
offer; (3) a meeting of the minds; (4) a communication that each party consented to
the terms of the contract; (5) execution and delivery of the contract with an intent it
become mutual and binding on both parties; and (6) consideration. Coleman v.
Reich, 417 S.W.3d 488, 491 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

      Protetch, Inc. asserts that all governing contract terms are contained in the
March 4, 2005 invoice, and that “the parol evidence rule bars Herrin’s subjective
interpretations” of any asserted contract terms that do not appear in the invoice.
Protetch, Inc. cites Harrison v. Facade, Inc., 355 S.W.2d 543, 545 (Tex. Civ.
App.—Dallas 1962, no writ), for the proposition that, “[w]hen a business uses
invoices and when the invoice contains the important terms of an agreement
incorporated into it, the invoice is the parties’ contract.”

      In Harrison, the parties engaged in a course of business dealings in which
the plaintiff ordered goods from the defendant. Id. at 544. Upon receiving an
order, the defendant sent the goods and an invoice containing the terms of the
parties’ agreement to the plaintiff. Id. at 555. The price of the goods ordered and
other items were mentioned for the first time in the invoice. Thus, the parties’
contract was not complete until the plaintiff accepted the invoice together with the
goods. Id. at 546. Based on these facts, the court held that the invoice was the
parties’ contract. Id.

      Harrison is inapposite here. Viewed in light of the charge as given, which
did not define the term “agreement,” the evidence in this case supports a finding of
a prior completed oral contract.        Max Protetch testified that he reached an

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agreement with Herrin before the March 4, 2005 invoice was sent.              He also
testified that the invoice reflected the terms of the prior oral agreement.

      Protetch, Inc.’s reliance on the parol evidence rule also is misplaced. “When
the parties have concluded a valid, integrated agreement, the parol evidence rule
precludes enforcement of a prior or contemporaneous inconsistent agreement.”
Edascio, L.L.C. v. NextiraOne L.L.C., 264 S.W.3d 786, 796 (Tex. App.—Houston
[1st Dist.] 2008, pet. denied). A written instrument is integrated if it presumes that
all prior agreements relating to the transaction have been merged into it and will be
enforced as written. Id. When the written agreement contains a merger clause, the
parol evidence rule is particularly applicable. See id.

      Here, the invoice did not contain an integration or merger clause. The
invoice is not a valid integrated agreement, and the parol evidence rule does not
apply. See Houston Exploration Co. v. Wellington Underwriting Agencies, Ltd.,
352 S.W.3d 462, 469 (Tex. 2011).

      C.      Color as a Term of the Agreement

      Having concluded that the invoice was not a valid integrated agreement, it is
necessary to determine whether color was a term of the oral agreement. Protetch,
Inc. asserts that it did not breach its contract with Herrin because color was not a
term of their agreement. To support this assertion, Protetch, Inc. argues that (1)
Herrin did not inform Protetch, Inc. of the color he wanted; (2) Herrin was warned
that no particular color or finish was guaranteed; and (3) expert testimony at trial
established that the table was properly fabricated in accordance with Scott Burton’s
blueprints.

      Protetch, Inc. argues that color cannot be a term of the parties’ agreement
because Herrin did not specify the color he wanted. Herrin asserts that he did not


                                           7
discuss color with Protetch, Inc. because the parties agreed that Herrin’s table
would be the same edition as the table at the Cooper-Hewitt, National Design
Museum. At trial, the Herrins, Max Protetch, and Versteeg5 testified that pieces
from the same edition should be the same color and finish. Herrin testified that
Protetch, Inc. did not have a Scott Burton piece; therefore, Max Protetch directed
Herrin to the Cooper-Hewitt, National Design Museum and McNay Art Museum
to view Scott Burton pieces and understand what the table would look like. Herrin
described the table and chairs on display at the museums as a translucent honey
gold color. A picture of the chairs at the McNay Art Museum shows that they
were a honey gold color. Herrin also testified that the pieces were in the same
edition as the table he and his wife were interested in purchasing.

       Protetch, Inc. asserts that color cannot be a term of the contract because its
owner, Max Protetch, warned Herrin that no particular color or finish was
guaranteed. Herrin argues that he was not warned that no particular color or finish
was guaranteed; instead, he testified that he was warned that “some variation” in
color was possible. Herrin further cites Versteeg’s testimony that only slight
variations of color are to be expected in pieces within the same edition.

       Protetch, Inc. also argues that expert testimony conclusively establishes that
it did not breach its agreement with Herrin. Versteeg testified that the table was
properly fabricated in accordance with Scott Burton’s blueprints, and that a honey
gold color Scott Burton table with a translucent finish did not exist. He further
testified that fabricating such a table would violate his agreement with the New
York Museum of Modern Art.

       Evidence at trial established that Scott Burton pieces in the same edition

       5
         Peter Versteeg was Protetch Inc.’s only expert witness. At the time of trial, he was the
only person to have fabricated a Scott Burton table after Scott Burton died.

                                               8
were a different color than the table Herrin received. Herrin testified that the table
he and his wife received was “blackish with just a hint of brown to it.” Pictures
also demonstrated that the table Herrin received was a different color than the
chairs on display at the McNay Art Museum. Further, Max Protetch indicated in
an email to Herrin that the table he received was a different color than the other
pieces in the edition, stating:

      We should also remind ourselves that the one you initially saw is
      more than 10 years old. The translucent golden brown quality is
      something that develops as the steel ages, and the same effect can be
      expected with this new piece a few years down the road.
There was no testimony that Max Protetch warned Herrin that the honey gold color
would take years to acquire. Viewing this evidence in a light most favorable to the
verdict, a reasonable jury could have concluded that Protetch, Inc. breached its
contract with Herrin because Herrin had a reasonable expectation that his table
would have a translucent, honey gold finish. See City of Keller, 168 S.W.3d at 821
(“[I]n every circumstance in which reasonable jurors could resolve conflicting
evidence either way, reviewing courts must presume they did so in favor of the
prevailing party, and disregard the conflicting evidence in their legal sufficiency
review.”); Waterways on Intercoastal, Ltd. v. State, 283 S.W.3d 36, 43 (Tex.
App.—Houston [14th Dist.] 2009, no pet.). Likewise, weighing the evidence in
the record before us, we cannot conclude that the jury’s finding that Protetch, Inc.
breached its agreement with Herrin is so against the great weight and
preponderance of the evidence as to be clearly wrong and unjust. See Golden
Eagle Archery, Inc., 116 S.W.3d at 761.

      We conclude that the jury’s finding that Protetch, Inc. breached its contract
with Herrin is supported by more than a scintilla of evidence; thus, the evidence is
legally sufficient to support a judgment based on the jury’s verdict. Further, we

                                          9
cannot, based on this record, say that the jury’s finding is against the great weight
and preponderance of the evidence; thus, the evidence is factually sufficient as
well.

                                    CONCLUSION

        We conclude that the evidence is legally and factually sufficient to support
the jury’s finding. We therefore overrule Protetch, Inc.’s single issue on appeal
and affirm the trial court’s judgment.



                                              _____________________________
                                              William J. Boyce
                                              Justice



Panel consists of Justices Boyce, Christopher, and Brown.




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