COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00157-CV

LESIKAR OIL AND GAS CO. APPELLANT

V.

LEGEND SWABBING, LLC APPELLEE

------------

FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

------------

MEMORANDUM OPINION1

----------

Appellant Lesikar Oil and Gas Co. (the Company) appeals from the trial 

court’s judgment in favor of Appellee Legend Swabbing, LLC (Legend) on 

Legend’s suit for breach of contract and against the Company on its 

counterclaims. In three issues, the Company argues that the trial court erred by 

holding that Legend had no liability for the services of subcontractors used to 

perform work that Legend was contractually obligated to perform; by holding that 

 

1See Tex. R. App. P. 47.4.
2

Legend fully performed under the contract; by refusing to hold that Legend failed 

to perform in a good and workmanlike manner; by failing to find that the 

Company had incurred $26,475.64 in expenses as a result of Legend’s failure to 

perform in a good and workmanlike manner; and alternatively, by issuing findings 

of fact numbers 17 and 22. The Company also challenges the sufficiency of the 

evidence to support those findings. Because we hold that the trial court did not 

err, we affirm the trial court’s judgment.

I. Background Facts and Procedural History

The Company, which is owned by Lynwood Lesikar, operates the Dalworth 

No. 1 well in Parker County (the well). In May 2007, the Company hired Legend 

to repair a casing leak in the well after an independent contractor, Dale Lee, 

informed Lesikar that he suspected that the well had a leak. Lee introduced 

Lesikar to Gary Gardner, owner of Legend. The parties entered into a master 

service contract, which sets out insurance and indemnity requirements for the 

parties but does not specify the work Legend agreed to perform. Lesikar agreed 

to pay Legend $265 an hour for its work.

Prior to the repair work, Lesikar met with Gardner and gave him various 

notes about the condition of the well and possible location of the leak. Lesikar 

testified that as part of this conversation, he had informed Gardner that the well 

had previously had two or three squeeze jobs done, some of which had failed.

Gardner testified that it was obvious that the casing had been squeezed several 

times. A squeeze job is a process by which cement is pumped into the pipe and 
3

pushed through holes in the casing. This process, in addition to repairing casing 

holes, creates a cement barrier between the casing and the area outside the 

casing. Before injecting the cement into the casing, a removable bridge plug is 

placed in the pipe below the area to be repaired. Sand is placed on top of the 

bridge plug to protect it from the cement. After the cement is injected, water is 

pumped into the well to push down the cement. The well is then ―squeezed‖ to 

push on the cement, pushing the water out of the cement and dehydrating it. 

Once the cement has set, the cement in the casing is drilled out. The mud 

created by this process is circulated out of the casing so that the plug can be 

retrieved. A cement retainer may be used in the process; a cement retainer is ―a 

device that . . . you pump through to get cement through it‖ to create an area 

between the plug and the retainer into which the cement is pumped.

Legend repaired the leak by performing three squeeze jobs on the well. 

The first two squeeze jobs that Legend completed did not fix the casing leak. At 

trial, the parties disagreed about who was at fault for the failure of the first two 

attempts. Legend argued that for the first attempt, the cement company, Basic

Energy Services (Basic), did not keep pressure on the well. Lesikar argued that 

the problem was the location of the retainer. A Basic employee testified that 

keeping pressure on the squeeze job would have defeated the squeeze because 

of the location of the retainer. As for the second attempt, Gardner testified that 

the squeeze failed because Basic made incorrect cement calculations, resulting 
4

in too little cement being used. A Basic employee testified that Gardner told him 

how much cement to use on the job.

Basic employee Billy Raines testified that squeeze jobs could take multiple 

attempts to achieve success without anyone doing anything wrong. Lee testified 

that Gardner did not do anything wrong on the squeeze jobs. Jack Bradshaw, an 

expert called by the Company, agreed that everyone can do everything right on 

the first squeeze but it can still fail, and Bradshaw could not name anything that 

Gardner had done wrong.

The third squeeze job repaired the casing leak. Within a week, however, 

the pump became clogged and stopped working. At trial, the parties disputed 

whether the clog occurred because Legend did not circulate the well with water

after completing the third squeeze job. The parties presented conflicting 

testimony about whether circulation with water is necessary.

Legend billed the Company for its services, and Lesikar refused to pay. 

Lesikar disputed the charges on the grounds that Legend had charged the

Company for work that did not need to be done (such as swabbing and acidizing) 

and that some of the charges were for repairing holes caused by Legend rather 

than the casing leak that it had been hired to repair.

Legend sued the Company for breach of contract due to Lesikar’s failure to 

pay the invoices. The Company filed a countersuit for breach of contract and 

fraud. The Company alleged that Legend’s representations in the service 

agreement that it had adequate equipment and fully trained personnel capable of 
5

performing services were false and a deceptive trade practice. The Company

also alleged that Legend’s work was substandard.

The case was tried to the bench. At trial, Gardner testified that he had 

followed Lesikar’s orders in repairing the leak and that Legend did not have 

responsibility for the work performed by the service providers (such as Basic) 

who had provided work or equipment on the job. Gardner also testified that his 

understanding was that Lee was his supervisor on the job.

The Company disputed that Lee had any supervisory capacity on the job. 

The Company argued that Legend was responsible for the work done on the 

repair job and could not delegate its responsibility to other providers.

At the conclusion of the bench trial, the trial court rendered judgment for 

Legend and ordered that it recover damages of $58,565 and stipulated attorney’s 

fees. The judgment ordered that the Company take nothing on its counterclaims.

The Company requested the trial court to enter findings of fact and 

conclusions of law. The trial court subsequently notified the parties to submit 

proposed findings and conclusions by April 12, 2010. Legend complied with this 

instruction, but Lesikar did not. On April 16, 2010, the trial court entered findings

of fact and conclusions of law:

Findings of Fact

. . . . 

2. [The Company] is the operator of the . . . Well.

3. [Legend] was contracted by [the Company] to repair a casing 

leak(s) in the . . . Well.
6

. . . .

5. [Legend] performed three squeeze jobs and one acid job on 

the . . . well to fix the casing leak(s).

6. [Basic] was contracted to perform the cement work on the 

squeeze jobs as well as the acid job on the . . . well.

7. [Legend] maintained the failure of the first squeeze job was 

the fault of [Basic] for not keeping pressure on the squeeze 

job.

8. . . . Dale Lee[] also maintained the failure of the first squeeze 

job was the fault of [Basic] for not keeping pressure on the 

squeeze job.

9. [Legend] maintained the failure of the second squeeze job 

was the fault of [Basic] for the substandard quality of its 

cement.

10. . . . Dale Lee[] also maintained the failure of the second 

squeeze job was the fault of [Basic] for the substandard 

quality of its cement.

11. [Basic] billed [the Company] the following invoices:

a. $5,285.41 — 1st squeeze job on 6/1/07

b. $3,414.12 — 2nd squeeze job on 6/5/07

c. $1,654.86 — Acid job on 6/11/07

d. $4,165.66 — 3rd squeeze job on 6/12/07

12. [The Company] did not pay [Basic] for the acid job . . . or the 

3rd squeeze job. . . .

13. [Basic’s] ledger sheet for [the Company] shows a credit for the 

acid job . . . and the 3rd squeeze job. . . .

14. [Legend] completed work on June 21, 2007.

15. [Legend] billed [the Company] for its work through two 

invoices, No. 903 in the amount of $28,355.00 and No. 904 in 

the amount of $30,210.00 for a job total of $58,565.00.
7

16. [Legend’s] hourly rate was $265.00 and L.W. Lesikar agreed 

that was a reasonable rate.

17. [The Company] through its owner L.W. Lesikar and a pumper, 

Dale Lee, employed by [the Company,] were overseeing work 

performed by [Legend].

18. [Legend], through its manager Gary Gardner, was in constant 

contact with L.W. Lesikar and/or Dale Lee through completion 

of said work either in person or by telephone.

19. [Legend], through its manager Gary Gardner, provided 

evidence of 77 telephone calls to or from L.W. Lesikar and 96 

telephone calls to or from Dale Lee through completion of the 

work on the . . . well.

20. All witnesses, including two employees from [Basic], who were 

called to tes[tify] on behalf of [the Company] as well [as] its 

expert Jack Bradshaw stated that it can take numerous 

squeeze jobs to fix a casing leak.

21. All witnesses, including two employees from [Basic], who were 

called to tes[tify] on behalf of [the Company] as well [as] its 

expert Jack Bradshaw stated that everyone can do everything 

right on a squeeze job and it still not be successful even after 

several attempts.

22. L.W. Lesikar or his pumper, Dale Lee, were at the job site and 

had the ultimate responsibility to order [Legend] or any other 

subcontractor to alter the plan of operation that was proposed 

for repair of the casing leak.

23. The ―contract‖ for services gives no particular guidance for the 

services rendered other than representations that [Legend] 

―has adequate equipment in good working order and fully 

trained personnel capable of efficiently operating such 

equipment and performing services for Contractor[.‖]

24. During the entire period of time [Legend] made repairs to 

the . . . well, it had adequate equipment which was in good 

working order.

25. During the entire period of time[, Legend] had fully trained 

personnel capable of efficiently operating such equipment and 
8

performing the services for which it contracted with [the 

Company].

26. The job assignment was to repair the casing leak and 

[Legend] completed the assignment.

27. [The Company]’s complaint was that [Legend] took too long 

and did not use the methods [L.W. Lesikar] would have used.

28. The contract did not have specifications for time and method.

29. [Legend] incurred reasonable and necessary attorney’s fees of 

$21,000.00.

Findings of Fact as Conclusions of Law

1. Any finding of fact that is a conclusion of law shall be deemed 

a conclusion of law.

Conclusions of Law

1. [Legend] and [the Company] entered into a master service 

contract. The contract for services gives no particular 

guidance for the services rendered other than representations 

that [Legend] has adequate equipment in good working order 

and fully trained personnel capable of efficiently operating 

such equipment and performing services for contractor. The

job assignment was to repair the casing leak and [Legend]

completed the assignment.

2. [Legend] fully performed its contractual obligations to [the 

Company] under the contract.

3. [The Company] breached its obligations under the contract by 

its failure to pay for [Legend]’s services upon completion of the 

job.

4. A breach of contract entitles the non-breaching party [Legend]

to recover from the breaching party [the Company] an 

additional amount of monies as compensation for the expense 

of retaining an attorney in the litigation. The reasonable and 

necessary attorney’s fees by [Legend] were $21,000.00.
9

The Company requested amended and additional findings of fact, which the trial 

court denied, stating as its reason that Lesikar had failed to comply with the April 

12 deadline.

II. Standards of Review

Findings of fact are the exclusive province of the factfinder.

2

 In a bench 

trial, they have the same force and dignity as a jury=s answers to jury questions.3 

When findings of fact are filed and are unchallenged, they occupy the same 

position and are entitled to the same weight as the verdict of a jury; they are 

binding on an appellate court unless the contrary is established as a matter of 

law or there is no evidence to support the finding.4

The trial court=s findings of fact are reviewable for legal and factual 

sufficiency of the evidence to support them by the same standards that are 

applied in reviewing evidence supporting a jury=s answer.5

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 

 

2Bellefonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 744–45 (Tex. 

1986).

3Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991).

4McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); Rischon Dev. 

Corp. v. City of Keller, 242 S.W.3d 161, 166 (Tex. App.—Fort Worth 2007, pet. 

denied), cert. denied, 129 S. Ct. 501 (2008).

5Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel, 881 

S.W.2d 295, 297 (Tex. 1994).
10

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.6 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.7 If a party is attacking the legal sufficiency of 

an adverse finding on an issue on which the party had the burden of proof, and 

there is no evidence to support the finding, we review all the evidence to 

determine whether the contrary proposition is established as a matter of law.8

When reviewing an assertion that the evidence is factually insufficient to 

support a finding, we set aside the finding only if, after considering and weighing 

all of the evidence in the record pertinent to that finding, we determine that the 

credible evidence supporting the finding is so weak, or so contrary to the 

overwhelming weight of all the evidence, that the answer should be set aside and 

 

6Uniroyal 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).

7Cent. 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).

8Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); Sterner v. 

Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).
11

a new trial ordered.9 When the party with the burden of proof appeals from a 

failure to find, the party must show that the failure to find is against the great 

weight and preponderance of the credible evidence.10

When conducting a factual sufficiency review, a court of appeals must not 

merely substitute its judgment for that of the trier of fact.11 The trier of fact is the 

sole judge of the credibility of witnesses and the weight to be given to their 

testimony.12

A court of appeals cannot make original findings of fact; it can only ―unfind‖ 

facts.13 Conclusions of law may not be challenged for factual sufficiency, but 

they may be reviewed to determine their correctness based upon the facts.14

 

9Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh’g); 

Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

10Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex. 1988); see 

Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680, 681–82 (Tex. 2006).

11Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 

2003).

12Id.

13Tex. Nat=l Bank v. Karnes, 717 S.W.2d 901, 903 (Tex. 1986); Inimitable 

Group, L.P. v. Westwood Group Dev. II, Ltd., 264 S.W.3d 892, 898 (Tex. App.—

Fort Worth 2008, no pet.).

14AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506, 519 (Tex. 

App.—Fort Worth 2009, no pet.) (op. on reh=g); Dominey v. Unknown Heirs & 

Legal Reps. of Lokomski, 172 S.W.3d 67, 71 (Tex. App.—Fort Worth 2005, no 

pet.).
12

III. Legend’s Alleged Liability for the Services of Subcontractors

In its first issue, the Company argues that the trial court erred by holding 

that Legend had no liability for the services of subcontractors used to perform 

work that Legend was contractually obligated to provide to the Company

because, as a matter of law, Legend could not delegate responsibility for the 

repair of the casing leak when the Company did not consent. Alternatively, the 

Company contends that the trial court’s finding that Legend was not liable for 

Basic’s services is against the great weight and preponderance of the evidence. 

We first note that the trial court made no such explicit conclusions of law or 

findings of fact. Secondly, even if Legend bore responsibility for the conduct of 

the other subcontractors, a determination we do not need to make, for Legend to 

have liability for Basic’s performance (or the services of any other subcontractor), 

the trial court first must have determined that a subcontractor’s performance 

amounted to a material breach of the contract. As the Company concedes in a 

footnote, the trial court made no such determination, finding only that Legend and 

Lee both blamed Basic for the failure of the two cement jobs, not that Basic was 

at fault for the failure. The trial court also found that the Company’s witnesses 

―stated that it can take numerous squeeze jobs to fix a casing leak‖ and that 

―everyone can do everything right on a squeeze job and it still not be successful 

even after several attempts.‖ As set forth above, the trial court further found,

23. The ―contract‖ for services gives no particular guidance for the 

services rendered other than representations that [Legend] 

―has adequate equipment in good working order and fully 
13

trained personnel capable of efficiently operating such 

equipment and performing services for Contractor[.‖]

24. During the entire period of time [Legend] made repairs to 

the . . . well, it had adequate equipment which was in good 

working order.

25. During the entire period of time[, Legend] had fully trained 

personnel capable of efficiently operating such equipment and 

performing the services for which it contracted with [the 

Company].

27. [The Company]’s complaint was that [Legend] took too long 

and did not use the methods [L.W. Lesikar] would have used.

28. The contract did not have specifications for time and method.

The Company has not challenged any of these findings, and there is 

evidence to support them.15 The contract provides no specifications regarding 

the type of work Legend was to perform. It does provide the following, 

―Subcontractor [Legend] represents that it has adequate equipment in good 

working order and fully trained personnel capable of efficiently operating such 

equipment and performing services for Contractor [the Company].‖ Gardner 

warned Lesikar before beginning the job that because of the well’s history and 

age, ―this was a high risk squeeze . . . that . . . very possibly could take two to 

three times to squeeze it off.‖ Lee testified that Gardner did not do anything 

wrong on the squeeze jobs. Bradshaw agreed with a Basic employee’s 

testimony that everyone can do everything right on the first squeeze but it can 

 

15See McGalliard, 722 S.W.2d at 696; Rischon Dev. Corp., 242 S.W.3d at 

166.
14

still fail and could not name anything that Gardner had done wrong. Basic 

employee Billy Raines testified,

Q. And down in that hole, there’s no—a person wouldn’t want to 

bet, would he, that the first time you do a squeeze job, it’s 

going to work?

A. No. A person wouldn’t want to bet.

Q. Based on your experience, have you been on other jobs 

where sometimes it’s taken two, three, maybe as many as half 

a dozen times to prepare—or to repair a hole in the casing?

A. Yes.

Q. All right. So it’s not unusual, is it, for it to take three times to 

repair a hole in a casing?

A. Correct.

Q. And that doesn’t necessarily mean that anybody did anything 

wrong, correct?

A. Correct.

Q. It could just be the dynamics of the hole and the geology that’s 

down there; is that right?

A. Yes, sir.

Because the Company does not challenge the findings and the evidence 

supports them, they are binding on us.16 We therefore hold that (1) the Company

did not establish that Basic’s performance amounted to a breach for which 

Legend was liable as a matter of law and (2) the trial court’s refusal to hold 

Legend liable for a breach by Basic that the trial court did not find occurred is not 

 

16See McGalliard, 722 S.W.2d at 696; Rischon Dev. Corp., 242 S.W.3d at

166.
15

against the great weight and preponderance of the evidence. We overrule the 

Company’s first issue.

IV. Legend’s Performance of the Contract

In its second issue, the Company contends that the trial court erred by 

holding that Legend fully performed its contractual obligations, by refusing to find 

that Legend failed to perform in a good and workmanlike manner, by refusing to 

find that Legend failed to perform in a good and workmanlike manner by failing to 

circulate the well clean at the conclusion of the third squeeze job, and by refusing

to find that the Company incurred $26,475.64 in expenses as a result of 

Legend’s failure to so circulate the well. Included in this issue are challenges to 

the legal and factual sufficiency of the evidence to support the trial court’s finding 

that Legend ―completed the assignment‖ and the trial court’s failure to find that 

Legend did not perform in a good and workmanlike manner, as well as the 

contention that the trial court’s conclusion that Legend fully performed is wrong 

as a matter of law.

The parties appear to agree that the implied warranty of good 

workmanship applies here. The Texas Supreme Court defines ―good and 

workmanlike‖ as ―that quality of work performed by one who has the knowledge, 

training, or experience necessary for the successful practice of a trade or 

occupation and performed in a manner generally considered proficient by those 
16

capable of judging such work.‖17 Without holding that the implied warranty of 

good workmanship applies in this case, we hold that the evidence supports any 

refusal by the trial court to hold that Legend did not perform in a good and 

workmanlike manner. Lesikar does not challenge these findings:

18. [Legend], through its manager Gary Gardner, was in constant 

contact with L.W. Lesikar and/or Dale Lee through completion 

of said work either in person or by telephone.

19. [Legend], through its manager Gary Gardner, provided 

evidence of 77 telephone calls to or from L.W. Lesikar and 96 

telephone calls to or from Dale Lee through completion of the 

work on the . . . well.

. . . . 

23. The ―contract‖ for services gives no particular guidance for the 

services rendered other than representations that [Legend] 

―has adequate equipment in good working order and fully 

trained personnel capable of efficiently operating such 

equipment and performing services for Contractor[.‖]

24. During the entire period of time [Legend] made repairs to 

the . . . well, it had adequate equipment which was in good 

working order.

25. During the entire period of time[, Legend] had fully trained 

personnel capable of efficiently operating such equipment and 

performing the services for which it contracted with [the 

Company].

. . . . 

27. [The Company]’s complaint was that [Legend] took too long 

and did not use the methods [L.W. Lesikar] would have used.

28. The contract did not have specifications for time and method.

 

17Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 354 (Tex. 1987).
17

The Company contends that Legend’s placement of the retainer below the 

casing leak and top set of perforation holes breached the implied warranty of 

performance in a good and workmanlike manner, yet the Company’s contention 

appears to be based solely on Lesikar’s conclusions drawn from a crude drawing 

by Gardner that the parties agreed was not drawn to scale. Further, to the extent 

that the placement of the retainer was below the casing leak and the top set of 

perforation holes, such placement nonetheless ultimately worked because the 

leak was fixed.

Gardner warned Lesikar before beginning the job that because of the 

well’s history and age, ―this was a high risk squeeze . . . that . . . very possibly 

could take two to three times to squeeze it off.‖ In addition to denying that he 

had had anything to do with perforating additional holes, Gardner gave detailed 

testimony explaining each step that he took on the job and why. He also testified 

about his extensive experience in the industry, the experience of the workers 

who helped him on the job, and the quality of his equipment. Finally, he testified 

that he believed that he had performed the work in a good and workmanlike 

manner.

Lee also testified extensively about the steps taken to complete the job. 

Lee testified that Gardner did not do anything wrong on the squeeze jobs. Basic 

employee Billy Raines testified,

Q. And down in that hole, there’s no—a person wouldn’t want to 

bet, would he, that the first time you do a squeeze job, it’s 

going to work?
18

A. No. A person wouldn’t want to bet.

Q. Based on your experience, have you been on other jobs 

where sometimes it’s taken two, three, maybe as many as half 

a dozen times to prepare—or to repair a hole in the casing?

A. Yes.

Q. All right. So it’s not unusual, is it, for it to take three times to 

repair a hole in a casing?

A. Correct.

Q. And that doesn’t necessarily mean that anybody did anything 

wrong, correct?

A. Correct.

Q. It could just be the dynamics of the hole and the geology that’s 

down there; is that right?

A. Yes, sir.

Bradshaw agreed that everyone can do everything right on the first 

squeeze but it can still fail, and he could not name anything that Gardner had 

done wrong. Finally, the third squeeze job successfully repaired the casing leak. 

We therefore hold that the evidence is legally and factually sufficient to support 

the trial court’s refusal to find that Legend breached any implied warranty of good 

workmanship generally.

Specifically, though, the Company contends that the trial court erred by 

refusing to find that Legend failed to perform in a good and workmanlike manner 

by failing to circulate the well clean at the conclusion of the third squeeze job. 

After completing the squeeze, Legend swabbed the well to clean it out but did not 
19

circulate the well with water. The parties presented conflicting testimony about 

whether circulation or swabbing is the better method to clean the well. Gardner 

testified,

When I removed that retrievable bridge plug, that 3,000 feet of 

fluid goes down. The producing zone is partially depleted, not much 

pressure on it. So when the weight of that fluid hits, it actually—the

zone actually drinks some of that fluid. We then run our tubing down 

and swab it to where we pull that fluid back out—

. . . .

But this fluid’s coming down, goes into the formation. Then 

whenever you swab it, you continue to swab it until it pulls all this 

fluid back out of this formation, which actually cleans the formation 

better than circulating it would.

And that was what—that was what we did in this case, is we 

swabbed the well clean instead of circulating it clean. Basically 

accomplishing the same thing.

We hold that the evidence is legally and factually sufficient to support the 

trial court’s refusal to find that Legend breached any implied warranty of good 

workmanship by failing to circulate the well clean after the third squeeze job. 

Further, because the Company does not contest the trial court’s findings that

23. The ―contract‖ for services gives no particular guidance for the 

services rendered other than representations that [Legend] 

―has adequate equipment in good working order and fully 

trained personnel capable of efficiently operating such 

equipment and performing services for Contractor[;‖]

24. During the entire period of time [Legend] made repairs to 

the . . . well, it had adequate equipment which was in good 

working order[;]

25. During the entire period of time[, Legend] had fully trained 

personnel capable of efficiently operating such equipment and 
20

performing the services for which it contracted with [the 

Company;]

. . . . 

27. [The Company]’s complaint was that [Legend] took too long 

and did not use the methods [L.W. Lesikar] would have used[; 

and]

28. The contract did not have specifications for time and method[,]

and because of our holdings regarding the trial court’s refusal to find that Legend 

breached an implied warranty of good workmanship, we hold that the trial court 

properly concluded that Legend fully performed its assignment and that the 

evidence is legally and factually sufficient to support the trial court’s finding that 

Legend completed its assignment. We therefore also hold that the trial court did 

not err by failing to find that the Company incurred $26,475.64 in expenses as a 

result of Legend’s failure to circulate the well clean with water at the end of the 

third squeeze job. We overrule the Company’s second issue in its entirety.

18

V. Findings of Fact Numbers 17 and 22

In its third issue, the Company argues in the alternative that the trial court 

erred by making findings of fact numbers 17 and 22 because they are materially 

inconsistent with the findings that Legend was contractually obligated to repair 

the casing leak or, alternatively, because the evidence is insufficient to support 

those findings. The findings provide,

 

18See Gonzalez, 195 S.W.3d at 681–82; Cropper, 754 S.W.2d at 651.
21

17. [The Company] through its owner L.W. Lesikar and a pumper, 

Dale Lee, employed by [the Company] were overseeing work 

performed by [Legend; and]

. . . . 

22. L.W. Lesikar or his pumper, Dale Lee, were at the job site and 

had the ultimate responsibility to order Legend or any other 

subcontractor to alter the plan of operation that was proposed 

for repair of the casing leak.

Because these findings are immaterial, given the absence of any finding that a 

breach occurred on the part of Legend or any other subcontractor and given our 

holdings above, we overrule the Company’s third issue.19

VI. Conclusion

Having overruled the Company’s three issues, we affirm the trial court’s 

judgment.

LEE ANN DAUPHINOT

JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DELIVERED: August 18, 2011

 

19See Tex. R. App. P. 44.1(a); Probus Props. v. Kirby, 200 S.W.3d 258, 

264 (Tex. App.—Dallas 2006, pet. denied) (―An appellate court may disregard a 

jury finding on a question that is immaterial.‖); Loaiza v. Loaiza, 130 S.W.3d 894, 

904 (Tex. App.—Fort Worth 2004, no pet.).