NO. 07-06-0205-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL C FEBRUARY

8, 2007

______________________________ VAUGHN EXCAVATING AND CONSTRUCTION, INC. A/K/A VAUGHN CONCRETE PRODUCTS, INC., APPELL ANT V. CENTERGAS FU ELS, INC., APP ELLEE

_________________________________ FROM THE CO UNTY COURT AT LAW NO. ONE OF P OTTE R COUNTY; NO. 92,923-1; H ONORABLE W. F. CORKY R OBERTS, JUDGE

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
OPINION Appel lant, Vaughn Exca vati ng and Const ructi on, Inc . (Vau ghn), appeal s from a judgment

granted Centergas Fuels, Inc. after a bench tri al in a suit on a swor n account

for fuel delivered to Vaughn. Appellant’s sole contention isthat it establ ished the aff irma tive defense o f accor

d and sa tisfac

tion as a matte r of law . We affirm.2 Factual and Pr

ocedural Backg round By an open account arr angement, Vaughn had been buying diesel fuel from Centergasand Centergas’s predecessor, Signal, for a con sidera ble period o f time. In November

2003, a 20 03 Ke nworth tr uck owned by Vaughn was

allegedly

damaged by contaminated fuel furnished by Ce nterga s. The repair cost for the Kenw orth truck w

as $8,732.95. Vaughn req uested that Center gas pay t he repair bi lls for the Kenw orth, however, there wasnever an agreement that Centergas would accept respons ibility for the repair cost and pay

the bills. After the mechanical failure of the Kenw orth truck, Centergas delivered additional l oads of fuel to Vaughn without an y further cl aims or alle gations of contaminated fuel. By ear ly 2004, thetotal outstandi ng amount on the open account was $11,304.22. Vaughn sent a check for $2,571.27 w ith a notation on the check that cashing the check acknow ledged pay ment in full for all outstanding purchases up to the date of the check. Additionally, the check was a ttached to Vaughn stat ionary that included a st atementthat the check represented a dedu ction of $8,732.95 for th e repair of th e Kenworth truck. Centergas negotiated the check and subseq uently filed suit on the open accountfor the balance of $8,732. 95. Vaughn filed a general deni al, allege d t h e aff irma tive defen se of a ccord an d satisf action and a cou nter clai m allegi ng breach o f expressed and implied w arranties. Trial was

to the court and judgment was granted to Centergasfor

$8,732.95 plus attorney fees, i nterest, and cour t costs. Additionally , the trial court dismis sed Vaughn’s counterclaim. Findingsof fact were fil ed by the tr ial court and the pertinent findin g was nu mber 6, “Defenda nt has failed to pr ove, or Pl aintiff has negated, at least one element of each of Defend ant’s defenses and counterclaims.” It is1 References to Texas Business and Commerce Code w ill hereafter be by § __. 3 this finding of fact that Vaughn atta cks in its appeal. Vaughn contends that the evidence established asa matter of law the affirmative d efense of accord and sati sfaction.
Standard of Revi ew
The trial court’s fact findings arereview ed for legal and fact ual su fficien cy th e same as a jury’ s answer to jury q uestions. Ortiz v . Jones , 917 S.W.2d 770, 772 ( Tex. 1996) (per curiam). Therefore, we will review the finding of fact under the leg al sufficiency test. See Dow Chem. Co. v. Francis , 46 S.W.3d 237, 241 (Tex. 2001) (per curi am). When review ing
a legal suffici ency chall enge to a finding on an issue on w hich appellant has the burden of proo f, the reviewing court will e xamine the reco rd for e vidence t hat sup ports th e find ing, while ignoring all contrar y evid ence. Id . If, upon review, there is no evidence to support the finding, we will then examine t he e n tire record to see if the contrary position is established as a m atte r of l aw. Id . If the contrary posi tion is est abli shed conc lusive ly, we will s ustain the iss ue. Id

. Analysis Appellant’s contention is that its claim for accord and s atisfaction was pursuant to section 3.311 of the Te xas Business and Commerce Code. T EX
. B US
. & C OMM
. C ODE A NN
. § 3.311 (Vernon 2006). 1 As such, appellant has und ertaken to prove that 1) the person in good faith tendered a n inst rument to the cl aimant as full sat isfaction of the cl aim; 2) the2 In the present case , t here is no di spute that the cl aimant, Centerg as, obtained

payment of the instrument. Although Cen tergas contests the good faith requirement , our conclusion as to the issue of w hether a bona fide di spute exis ts pretermits any discussion of the good faith req uirement. 4 amountof the claim was unli quidated or s ubject to a bona fide dispute; and 3) the clai mant obtained payment of the instrument. § 3.311 (a). 2
To review the bona fide dispute requirement, we turn to § 3.311(a)(2). There is no question that the clai m of Centergas w as liqui dated, therefore, ther e must be a bona fide dispute for

the affirmative d efense of accord and satisfaction toapply. The next ques tion would be, what co nstitutes evidence of a bon a fide dispute? The dispute must be as to the claim

. Klemp Corp. v. Thompson , 402 S.W.2d 257, 261 (Tex.App.–Waco 1966, no wri t) (emphasis added). Furt her, a comment to § 3 .311 states that t he section doesnot apply to a liqui dated amount not subjec t to a bona fide dis pute. § 3.311 cmt. 4. In the curre n t situation, Vaughn clai med that the fuel was defective, yet the ev idenc e at trial indi cated thatVaughn actuall y paid for the fuel he claimed w as defective an d did not dis pute the quality of the fuel nor the amount of the charges for the fuel that wa s the subject of the suit, namely the fuel delivered after the dis covery of the truck’smechanical pr oblems. The conclusion that the clai mant’s claim i s not the s ubject of a b ona fide dispute is further buttressed by the follow ing evi dence adduced at tr ial. The mechanical failures suffered by the Kenworth tru ck c ease d afte r th e in stal lati on of a locking fuel tank cap on the t ruck. In addition, there wastestimony ab out a Vaughn employ ee having a personal v endetta against another employee, the implica tion being t hat the Ken w orth truck w as sabotaged by the first Vaughn employee. Ther efore, it appears the attempt at off set by way of accord5

and satisfaction w

as not aimed at the claimant’s action but was in fact more in the nature of Vaughn’s counter claim whi ch the trial court denied and about whic h Vaughn has not complained. Accor dingl y, we cannot say there was no evidence to support the findi ng of fact of the trial court. Therefore, w e overrul e Vaughn’s co ntention.
Conclusion Having overrul ed Vaughn’s s ole issue, thejudgment of the tr ial court i s affirmed.

Mackey K. Hancock Justice