                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-12-00471-CV


MAIN STREET SCHOOLS, L.L.C.                                     APPELLANTS
D/B/A MONTESSORI COUNTRY
DAY SCHOOL AND WILLIAM J.
VESTERMAN

                                        V.

JASON AND LORI BIMMERLE                                          APPELLEES


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         FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY
                  TRIAL COURT NO. CV-2012-00879

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                       MEMORANDUM OPINION1

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                                  I. Introduction

     From 2008 to 2011, appellees Jason and Lori Bimmerle paid appellants

Main Street Schools, L.L.C. d/b/a Montessori Country Day School and William J.


     1
      See Tex. R. App. P. 47.4.
Vesterman (collectively, Main Street) for their son’s education. The Bimmerles

prevailed in the justice court and then the county court at law in a trial de novo in

their subsequent lawsuit against Main Street to seek a refund of their advance

tuition payment for the 2011–2012 school year.            The county court used

rescission to prevent unjust enrichment as a basis to refund half of the

Bimmerles’ advance tuition payment, and Main Street appealed, raising three

issues. We reverse the county court’s judgment and render judgment for Main

Street.

                                  II. Discussion

      Main Street argues that the county court erred by (1) denying its motion for

judgment on the Bimmerles’ breach-of-contract claim at the close of the

Bimmerles’ case; (2) awarding a remedy to the Bimmerles that was unsupported

by any legal claim that could support it; and (3) rescinding a valid contract and

awarding damages to the Bimmerles under an unjust enrichment theory that was

not pleaded, proven, or addressed by either party during trial.

A. Standard of Review and Applicable Law

      The trial court made findings of fact and conclusions of law. A trial court’s

findings of fact have the same force and dignity as a jury’s answers to jury

questions and are reviewable for sufficiency of the evidence to support them by

the same standards. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994);

Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); see also

MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 663 n.3 (Tex.

                                         2
2009). We may review conclusions of law to determine their correctness based

upon the facts, but we will not reverse because of an erroneous conclusion if the

trial court rendered the proper judgment.      City of Austin v. Whittington, 384

S.W.3d 766, 779 n.10 (Tex. 2012) (citing BMC Software Belgium, N.V. v.

Marchand, 83 S.W.3d 789, 794 (Tex. 2002)); H.E.B., L.L.C. v. Ardinger, 369

S.W.3d 496, 513 (Tex. App.—Fort Worth 2012, no pet.).

      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred

by rules of law or of 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 a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and

“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In

determining whether there is legally sufficient evidence to support the finding

under review, we must consider evidence favorable to the finding if a reasonable

factfinder could and disregard evidence contrary to the finding unless a

reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228

S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005).

      During trial, the Bimmerles stated that their cause of action was for breach

of contract, and the trial court agreed that it was a breach-of-contract case,

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stating, “I don’t think there is any other way to construe this.” The Bimmerles

stated that their claim was either for “our oral contract for the payment of tuition

and the receipt of education for [the child], or it is a . . . repeated promise to get

the money and pay it back with interest.”2

      The requirements of a valid contract are: (1) an offer; (2) an acceptance in

strict compliance with the offer’s terms; (3) a meeting of the minds; (4) each

party’s consent to the terms; (5) consideration; and (6) execution and delivery of

the contract with the intent that it be mutual and binding. Hubbard v. Shankle,

138 S.W.3d 474, 481 (Tex. App.—Fort Worth 2004, pet. denied). The elements

of written and oral contracts are the same and must be present for a contract to

be binding. Id. The essential elements of a breach of contract claim are (1) a

valid contract, (2) performance or tendered performance by the plaintiff, (3)

breach of the contract by the defendant, and (4) damages to the plaintiff resulting

from the breach. Inova Renovations, L.L.C. v. Jones, No. 02-13-00397-CV, 2014

WL 7204497, at *2 (Tex. App.—Fort Worth Dec. 18, 2014, no pet.) (mem. op.).

B. Evidence

      Lori Bimmerle testified that she and her husband enrolled their child with

Main Street in the 2008–2009 school year when the child was three years old

and that he completed two years of prekindergarten and kindergarten at the

      2
       At the trial’s conclusion, the Bimmerles also argued that if the original
2008 contract applied, then Main Street breached it because it did “not giv[e]
back everything beyond what would be considered the deposit amount,” but they
do not elaborate upon that argument in their brief.

                                          4
school. The 2011–2012 school year would have been their son’s first grade

year.

        Lori stated that she paid tuition month-to-month during her son’s first and

second years at the school but then prepaid during his kindergarten year

because the school offered a tuition discount for paying in full. She paid the

school $6,296, the amount for the full year with a discount, for her child’s first

grade year.     Only after she had made the advance tuition payment did Lori

decide that the child would not go into first grade at the school.3

        The parties’ August 11, 2008 contract contains the following portions

relevant to the issues on appeal:

        Agreement
        The following statements conform to the Texas Childcare laws
        governing all childcare facilities. In signing this form, [] a parent or
        guardian, we hereby agree to school policies and conditions as
        follows:

              ....

               7. The school agrees to present the Montessori program
        suitable to the child. No guarantee is made regarding achievement,
        social adjustment, or speed of progress.

              8. It is understood that once application is made, registration
        and materials fees are not refundable. The tuition deposit is
        refundable only when the child is not accepted.

        3
        Lori said that the child’s behavioral issues in the classroom during
kindergarten and the school’s reaction led to the Bimmerles’ decision not to send
the child there for first grade and to ask for a refund of the advance tuition
payment. Lori said that when she asked for a refund of her advance tuition
payment, Main Street told her that “[t]hey would work on it.” Lori followed up on
that statement by phone and e-mail before sending a demand letter.

                                           5
             9. The ideal Montessori program begins at around age three
      and continues through age six or seven; therefore, parents should
      keep this in mind when they make a decision to bring a child here.
      When application is accepted, enrollment is for the full term. The
      family who enrolls a child hereby understands and agrees that tuition
      refunds or allowances will not be made for absence from school due
      to illness or other circumstances. The family further understands
      and agrees that no adjustment or refund of fees or tuition, including
      the May advance tuition and enrollment and material fees, will be
      made if a child is withdrawn from school by the parent for any reason
      before the end of the period for which he has been enrolled.

             10. The school reserves the absolute right to dismiss a
      student if family is unable to follow the policies of the school or
      practice the principals of Dr. Montessori; under these circumstances,
      and only these circumstances, -partial prorated tuition will be
      refunded.

            11. The Elementary school, made up of Kindergarteners and
      First Graders, is reserved for those children who have extensive
      experience in the Montessori environment, who have attended at
      least one semester of five full days a week, and who stay here for
      the First Grade. Kindergarteners who do not plan to be with us
      through the First Grade will remain in the Preschool.

            ....

            13. Parents agree that they understand the school’s program
      and that this contract represents the full agreement between them,
      and that it shall not be modified or amended in any fashion except
      by written instrument to such effect signed and agreed to by both
      Parties and attached to this contract.

      Vesterman, the school’s owner, testified that the agreement’s purpose was

to run the school properly so that Main Street could educate children properly

and that parents sign the agreement in order to enroll their children in the school.

Bimmerles’ counsel then asked Vesterman, “And your promise to the Bimmerles

was to educate [the child] . . . in exchange for tuition? For them to pay you to

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educate [him]?” Vesterman replied, “Yes. And we did that.” Vesterman testified

that the 2008 agreement was the entire agreement between the parties “[u]nless

something were signed and attached to it.”

      Vesterman further testified that when a family enrolls a child at the school,

they are given options on payment and tuition. He stated that if a parent were to

enroll a child in the first grade, the parent would sign an agreement and other

enrollment documents, pay a $200 registration fee, pay a $300 materials fee, and

make a tuition deposit. The amount of the deposit would depend on how the

parent chose to pay—monthly (one month’s tuition as a deposit) or annually (full-

year tuition with an 8% discount). Vesterman testified that the 8% discount was

offered as an incentive for parents to pay the full year. The Bimmerles took this

incentive and paid a full year’s tuition in exchange for the 8% discount instead of

paying month-to-month with no discount.

      Although the Bimmerles’ son did not attend first grade at the school, there

is no evidence that either party breached the contract. Vesterman stated that he

did not ask the Bimmerles’ child to leave the school, and Lori testified that when

she told him that the child would not be attending first grade at the school, she

was told that the child was welcome back at the school. The Bimmerles paid the

contract price in full and the school agreed and remained ready to perform the

service of educating the Bimmerles’ son.4 Indeed, the trial court made no finding


      4
        The gravamen of the Bimmerles’ claim, as set forth in their original
petition, appears to be that after the Bimmerles had paid the advance tuition and
                                        7
of fact or conclusion of law that a breach of the agreement occurred by either

party.

C. Analysis

         In its conclusions of law, the trial court stated that the August 11, 2008

contract was for the 2008–2009 school year and that another contract was

formed when the Bimmerles made the 2011–2012 tuition payment in April 2011.5

         While we may disagree with the trial court’s conclusion of law as to the

creation of a new contract between the parties,6 whether a new contract was


subsequently decided not to enroll their son, they demanded the return of the
advance tuition since their son “would not be attending [Main Street’s] school the
following year as initially anticipated,” and Main Street refused to return the
tuition deposit. And while the trial court admitted into evidence e-mail messages
exchanged between Lori and Vesterman regarding a tuition refund, the record
does not reflect that any of these messages led to a writing agreed to and signed
by the parties and attached to the August 11, 2008 contract. Lori Bimmerle
stated in one of her e-mail messages that she wanted a contract in place to
formalize Vesterman’s assertion that Main Street would refund the tuition, but
there is nothing in the record to show that any such contract was ever created.
         5
       In its third conclusion of law, the trial court found that this subsequent
contract “obligated Defendants to enroll Plaintiffs’ minor child and educate him for
the 2011-2012 school year.”
         6
        The record reflects that the Bimmerles made the advance tuition payment
in April 2011 for their son’s first grade year pursuant to the terms of the August
11, 2008 contract. Lori’s testimony shows that the Bimmerles were following the
“ideal Montessori program” set out in paragraph 9 in the 2008 contract when they
enrolled their child at age three and that they had been planning to take
advantage of the provision in paragraph 11 that restricted elementary school
(kindergarten and first grade) availability to only those students who had
attended at least one semester of five full days a week and who stayed for the
first grade. The Bimmerles’ full-year advance payment of $6,296 reserved their
child’s place in the first grade class, as set out in paragraphs 9 and 11 of the
August 11, 2008 contract. The August 11, 2008 contract also contains other
                                          8
formed when the 2011–2012 tuition payment was made is immaterial because

there is no evidence of any breach of this agreement either by the school or the

Bimmerles. Nor was there any finding or conclusion by the trial court that any

such breach occurred.       Nevertheless, the trial court determined that the

Bimmerles were entitled to a refund of half of their advance tuition payment

($3,129.84), relying on its theory that a new contract had been created with the

April 2011 tuition payment and on the doctrine of rescission and unjust

enrichment.

      Although the trial court equivocated at the conclusion of trial with regard to

the application of equity and rescission to prevent unjust enrichment, 7 rescission

would not have been the appropriate remedy here. We have previously stated,

      Rescission is an equitable remedy that seeks to set aside an
      otherwise legal contract due to fraud, mistake, or for some other
      reason when it is necessary to avoid unjust enrichment of the non[-]
      complaining party to the contract, so that the parties thereto may be
      restored, insofar as is possible, to the status or position they were in
      prior to execution of the contract. Rescission is thus an “undoing” of
      the contract and generally used as a substitute for monetary
      damages when such damages would not be adequate.



essential terms governing the parties’ relationship that are not demonstrated
elsewhere in the record or in the alleged separate April 2011 tuition agreement
proposed by the Bimmerles and found by the trial court. These terms included
the requirements to modify or amend the 2008 agreement and the circumstances
under which parents could receive a tuition refund.
      7
      The trial judge stated that he believed that the pleadings pointed to an
attempt of rescission and that this “allows the Court to act in a manner in which it
can deal with principles of equity. And specifically the principle of unjust
enrichment.”

                                         9
City of The Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 732 (Tex.

App.—Fort Worth 2008, pet. dism’d) (emphasis added) (citations omitted). And,

as the supreme court has explained, because rescission is an equitable remedy,

“fault is relevant.” Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817, 826 (Tex.

2012); see Kennebrew v. Harris, 425 S.W.3d 588, 595 (Tex. App.—Houston

[14th Dist.] 2014, pet. denied) (“Because rescission is a remedy, it is available

only if the other party to the contract has committed some wrong.”).

      The only claim presented by the Bimmerles was for breach of contract;

they made no allegations of fraud or mistake. Likewise, the trial court did not find

fraud or mistake, and there is no evidence to support any such finding.8 Indeed,

there is no evidence in the record before us of any wrongdoing by Main Street

that would support recovery by rescission under the terms of either the 2008

contract or the purported 2011 contract. See George P. Roach, Rescission in

Texas: A Suspect Remedy, 31 Rev. Litig. 493, 568 (2012) (“Texas courts are

generally opposed to equitable remedies for breaches of contract, and rescission


      8
        Although the Bimmerles attempted to argue, and the trial court made a
conclusion based on, disparate treatment as compared to parents who paid
month-to-month with regard to tuition refunds, the Bimmerles’ advance tuition
payment enrolled their child for the 2011–2012 school year and provided them
with an 8% discount that parents who paid month-to-month did not receive, and
there is no indication that the Bimmerles are members of a protected class. See
Ian Ayres, Market Power and Inequality: A Competitive Conduct Standard for
Assessing When Disparate Impacts Are Unjustified, 95 Calif. L. Rev. 669, 678
(2007) (observing that an airline with market power on a particular route may
charge business travelers higher fares than tourists because business travelers
have a less elastic demand for air travel and hence are willing to pay more).

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is rare.”); see also Damstra v Starr, 585 S.W.2d 817, 820 (Tex. Civ. App.—

Texarkana 1979, no writ) (“A person cannot rescind a contract merely because,

in the light of subsequent developments, a provision thereof operated to his

disadvantage.”); Chenault v. Shelby Cnty., 320 S.W.2d 431, 433 (Tex. Civ.

App.—Austin 1959, writ ref’d n.r.e.) (observing that “a party cannot avoid his

contract on the ground that he received less in value than he supposed, or that

what he has received has no value at all unless he shows additional facts

entitling him to equitable relief such as fraud or mistake”); cf. Houston v. Ludwick,

No. 14-09-00600-CV, 2010 WL 4132215, at *3, *12 (Tex. App.—Houston [14th

Dist.] Oct. 21, 2010, pet. denied) (mem. op.) (affirming judgment on breach of

fiduciary duty and unjust enrichment claims that included rescission of deeds

conveying two condominium units). Therefore, rescission was not available as a

remedy, whether pleaded or unpleaded. We sustain Main Street’s three issues.

                                  III. Conclusion

      Having sustained all of Main Street’s issues, we reverse the trial court’s

judgment and render a take-nothing judgment for Main Street.


                                                    /s/ Bonnie Sudderth
                                                    BONNIE SUDDERTH
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER AND SUDDERTH, JJ.

DELIVERED: June 4, 2015




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