
NO. 07-02-0092-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

APRIL 10, 2002

______________________________


JESSE RAMIREZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE


_________________________________

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

NO. 2000-468,081; HONORABLE DRUE FARMER, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
	Appellant Jesse Ramirez filed a Motion to Dismiss Appeal on April 4, 2002, averring
that he no longer wishes to prosecute his appeal.   The Motion to Dismiss is signed by both
appellant and his attorney.  
	Without passing on the merits of the case, appellant's motion for voluntary dismissal
is granted and the appeal is hereby dismissed.  Tex. R. App. P. 42.2.   Having dismissed 

the appeal at appellant's personal request, no motion for rehearing will be entertained and
our mandate will issue forthwith.  


							Phil Johnson
						    	    Justice








Do not publish.

 find in its favor on its counterclaims against McDaniel.  Based upon the
rationale expressed herein, we reverse and remand for a new trial.
	McDaniel made a contract to sell his helicopter to a buyer located in South Carolina
by which the buyer agreed to pay $20,000 cash and trade a bulldozer.  In order to
complete the sale, McDaniel verbally engaged J.R. to repair an oil leak and load the
helicopter on a trailer for shipment by Baker Trucking to the buyer.  After the helicopter was
shipped and delivered, the buyer refused to pay the full purchase price contending the
helicopter had been damaged during shipment.  Instead, the buyer paid only $9,000 cash
and looked to the seller for other costs of repairs and parts to the helicopter, which
damages and losses McDaniel sought to recover against Baker Trucking and J.R. by the
underlying suit.  As material to his claims against J.R., by his live petition, McDaniel sought
to recover actual and exemplary damages on theories of breach of contract, fraud,
violations of the Deceptive Trade Practices Act, negligent representation, and negligence. 
	After hearing evidence and arguments, the trial court signed its judgment that
McDaniel recover actual damages of $25,000 plus attorney's fees of $7,500 against J.R.,
but declined to award any exemplary damages and denied J.R. recovery or offset on its
counterclaim.  Then, at J.R.'s request, among other findings of fact not material to our
review, the trial court found: 
	(1) J.R. contracted with McDaniel to properly disassemble, prepare, and load
the helicopter for shipment.

	(2) J.R. failed to comply with the terms of the agreement.

	(3) J.R.'s failure to comply was not excused.

	(10) J.R.'s breach proximately caused McDaniel's injury.
 
	(17) McDaniel sustained $25,000 in damages as a result of J.R.'s breaches,
acts, or omissions.

Before we commence our analysis of the issues, we first set forth the standard of review
to be utilized in our review.
	Findings of fact in a bench trial have the same force as a jury's verdict upon jury
questions.  City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex.Civ.App.--Houston [14th Dist.] 1977, writ ref'd n.r.e.).  However, findings of fact are not conclusive
when a complete statement of facts appears in the record if the contrary is established as
a matter of law or if there is no evidence to support the findings.  Middleton v. Kawasaki
Steel Corp., 687 S.W.2d 42, 44 (Tex.App.--Houston [14th Dist.] 1985), writ ref'd n.r.e., 699
S.W.2d 199 (Tex. 1985) (per curiam).  Findings of fact are reviewable for factual and legal
sufficiency under the same standards that are applied in reviewing evidence supporting a
jury's answer.  Zieben v. Platt, 786 S.W.2d 797, 799 (Tex.App.--Houston [14th Dist.] 1990,
no writ); see also W. Wendell Hall, Revisiting Standards of Review in Civil Appeals, 24 St.
Mary's L.J. 1045, 1145 (1993).
	Further, where an appellant challenges both legal and factual sufficiency of the
evidence, the appellate court should first review the legal sufficiency challenge.  Glover v.
Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981); Koch Oil Co. v. Wilber, 895
S.W.2d 854, 862 (Tex.App.--Beaumont 1995, writ denied).  If an appellant is attacking the
legal sufficiency of an adverse finding on which he did not have the burden of proof, he
must show on appeal that there is no evidence to support the adverse finding.  Croucher
v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983) (en banc).  The reviewing court considers the
evidence in the light most favorable to the finding to determine if there is any probative
evidence or reasonable inferences therefrom which supports the finding.  Glover, 619
S.W.2d at 401.  The court disregards all evidence and inferences to the contrary.  Weirich
v. Weirich, 833 S.W.2d 942, 945 (Tex. 1992).
	By his first issue, J.R. contends there is no evidence, or factually insufficient
evidence, to support the trial court's finding that it breached a contract, made negligent
misrepresentations, or breached a legal duty owed to McDaniel.  We disagree.  By its
counterclaim and trial testimony, J.R. admitted it was engaged to repair the oil leak on the
helicopter and load it on the trailer for shipment to the buyer.  Further, McDaniel testified
he gave J.R. specific instructions regarding disassembly, preparation, and loading of the
helicopter, including support for the tail boom.  Further instructions were also given on how
to drain the fuel and cover and/or seal the helicopter to keep moisture out during shipping. 
J.R. did not dispute the existence of a contract, but only challenged the terms thereof. 
Although the evidence was disputed, because a contract implied in fact may be created
by the acts and conduct of the parties, see Board of County Com'rs v. Amarillo Hosp., 835
S.W.2d 115, 125 (Tex.App.--Amarillo 1992, no writ), we conclude the evidence is legally
and factually sufficient to support the finding of a contract by the trier of fact.  J.R.'s first
issue is overruled.
	By his second issue, J.R. contends the evidence does not support the trial court's
findings and conclusions that its conduct caused McDaniel's alleged damages.  We
disagree.  We commence our analysis by first noting that J.R. does not challenge the
findings that it failed to comply with the terms of the agreement and does not address the
trial court's findings that its omissions as well as its acts resulted in McDaniel's damages. (2)

	Among other omissions, the evidence shows that after J.R. loaded the helicopter
for shipment, it did not cover the cabin or install the doors to protect from water damage. 
Also, McDaniel testified the buyer reduced the cash payment by $11,000 because of water
damage caused during shipment.  Because damages may be recovered when the loss is
the natural, probable, and foreseeable consequence of a party's conduct, see Mead v.
Johnson Group, Inc., 615 S.W.2d 686, 687 (Tex. 1981), J.R.'s failure to cover the cabin
or install the doors is sufficient evidence to support the trial court's finding of the existence
of causation of some damage.  J.R.'s second issue is overruled.
	By his third issue, J.R. argues that evidence is legally or factually insufficient to
support the trial court's finding that McDaniel sustained $25,000 in damages.  We agree
that the evidence is factually insufficient.  McDaniel testified the buyer refused to pay the
full $20,000 cash portion of the consideration and paid only $9,000.  In addition, he
testified that damage to the instrumentation, radio, electronics, and G.P.S. caused by
exposure to water remained unrepaired.  Also, he testified that in his opinion, he still owed
the buyer $13,000 to $14,000.  The finding of $25,000 damages is not itemized; however,
from the evidence, it is obvious that the award included the $11,000 withheld by the buyer
and the amount of $14,000 which McDaniel estimated to be the cost of remaining repairs. 
Although McDaniel may be entitled to recover the reasonable expenses for these additional
damages if they are shown to be necessarily incurred to repair the helicopter, a question
we do not decide, the evidence was insufficient to show that the cost of repairs was
reasonable and necessary.  See Castanon v. Monsevais, 703 S.W.2d 295, 298 (Tex.App.--San Antonio 1985, no writ) (holding that a repair estimate to a motor vehicle was not
sufficient to show reasonable and necessary costs of repairs); see also Bradley v. Castro,
591 S.W.2d 304, 306 (Tex.Civ.App.--Fort Worth 1979, no writ) (holding that mere proof of
amounts charged or paid does not raise an issue of reasonableness and such amounts
ordinarily cannot be recovered without evidence showing that the charges are reasonable). 
We sustain J.R.'s third issue.  Because the amount of damages is unliquidated and J.R.
disputed liability, our disposition of its third issue pretermits our consideration of its
remaining issues. 
	 Accordingly, we reverse the judgment and remand the cause to the trial court for
a new trial on all issues.  See Tex. R. App. P. 44.1(b); see Estrada v. Dillon, 44 S.W.3d
558, 562 (Tex. 2001); Bradley, 591 S.W.2d at 306.			

							Don H. Reavis
						    	    Justice




 

 

1. McDaniel settled his claim against Baker Trucking and it is not a party to the
judgment or this appeal.  
2. J.R. does not challenge the legal sufficiency of the evidence or contend that the
finding is deficient because it does not itemize or describe the damage to the helicopter
that required repairs.

