## NO. 12

- 1 1

- 00 398

- C V

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

G.D. HOLDINGS, INC. , § APPEAL FROM THE 2 73RD APPELLANT

V. § JUDICIAL DISTRICT COURT

H.D.H. LAND & TIMBER, L.P. , APPELLE

E § SHELBY COUNTY, TEXAS

OPINION G.D. Holdings, Inc. (GDH) appeals the trial court’s judgment in favor of H.D.H. Land & Timber, L.P. (HDH). In one issue, G DH contend s that the trial court erred because there is no evidence, or insufficient ev idence, to support the trial court’s contract and promissory estoppel findings . We affirm

.

B ACKGROUND On May 29, 2007, John D. Harvey, as general partner of HDH, and Dsira jlal Babaria, as president of G DH , s igned a $300,000.00 real es tate contract. John Griffin, an attorney, prepared
the contract, which provided that HDH would sell, and G DH would purchase, nine acres of land in Joaquin, Shelby County, Texas. T he contract also included the following clause:

Buyer shall pay seller for dozer work and clean up of property if transaction does not close.

Harvey signed the contract
, which was then sent to Babaria. However, Babaria struck out
th e above clause
, initialed it , and returned it to Griffin. When Griffin notified Harvey that Babaria
struck out the c lause , Harvey refused to initial the change

. Harvey stated that Babaria demanded the property be cleared before the sale close d

. He testified that the cost of clea rin g the property
was the reason Babaria deposited $30,000.00 with Griffin as earnest money. Babaria was unable to obtain financing for the purchase of the nine acres and the sale did not close . When Babaria2

requested that Griffin return the earnest money, Harvey refused to consent because the property had been cleared and the contractor paid

. GDH sued HDH for the return of the earnest money. HDH filed an original answer and counterclaim, alleging that the parties had a valid written contract, that GDH failed to close the sale without cause or justification, and that HDH was entitled to cancel the contract and receive the earnest money as liquidated damages. In the alternative, HDH alleged that it was entitled to
recover the mon ies because it relied upon GDH ’ s representations. At some point , Griffin tendered
the earnest money into the registry o f the court. Following a bench trial, the trial court signed a judgment in favor of H DH , awarding it $27,390.00 in damages with interest at the rate of 5% p er annum, and $7,500.00 in attorney’s fees.
A t G DH ’ s request, the trial court filed findings of fact and conclusions of law. This appeal
followed.

I SSUE P RESENTED In one issue, GDH contends that the trial court erred in awarding damages to HDH because
there was no evidence , or insufficient evidence, to support the trial court’s findings that the partie s created a binding written contract or that HDH established the requirements to recover under a theory of promissory estoppel. 1

S TANDARD OF R EVIEW When, as in this case
, specific findings of fact and conclusions of law are filed and a reporter’s record is before the appellate court, the findings will be sustained if there is evidence to support them, and the appellate court will review the legal conclusions drawn from the facts found
to determine their correctness. Rus

- Ann Dev., Inc. v. ECGC , Inc. , 222 S.W.3d 921, 925 (Tex. App.

– Tyler 2007, no pet.). Findings of fact in a case tried to the court have the same force and dignity as a jury’s verdict upon questions. Anderson v. City of Seven Points , 806 S.W.2d 791, 794 (Tex. 1991). The trial court’s findin gs 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. Main Place Custom Homes, Inc. v. Honaker , 192 S.W.3d 604, 614 (Tex. App.

— F ort Worth 2006, pet. denied).

1 GDH does not challenge the trial court’s award of attorney’s fees.3

We review a trial court’s conclusions of law de novo. State v. Heal , 917 S.W.2d 6, 9 (Tex. 1996); Potcinske v. McDonald Prop. Inv. , Ltd. , 245 S.W.3d 526, 529 (Tex. App.

– Houston [1 st Dist.] 2007, no pet.). When performing a de novo review, we exercise our own judgment and redetermine each legal issue. Sembera v. Petrofac Tyler, Inc. , 253 S.W.3d 815, 822 (Tex. App.

– Tyler 2008, pet. denied). To make this determination, we consider whether the conclusions are
correct based on t he facts from which they are drawn. Potcinske
, 245 S.W.3d at 529

. A party who challenges the legal sufficiency of the evidence to support an issue upon
which it did not have the burden of proof at trial must demonstrate on appeal that there is no
evidenc e to support the adverse finding. Bright v. Addison , 171 S.W.3d 588, 595 (Tex. App.

— D allas 2005, pet. denied). When reviewing a ―no evidence‖ issue, we determine ―whether the evidence at trial would enable reasonable and fair minded people to reach the ver dict under
review.‖ City of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005). In making this determination, we must credit favorable evidence if a reasonable finder of fact could, and disregard contrary
evidence unless a reasonable finder of fact could no t. Id

. If a party is attacking the factual sufficiency of an adverse finding on an issue on which the other party had the burden of proof, the attacking party must demonstrate that there is insufficient evidence to support the adverse finding. Croucher v. Croucher , 660 S.W.2d 55, 58 (Tex. 1983) . In addressing a factual sufficiency of the evidence challenge, we must consider and weigh all of the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). The finder of fact is the sole judge of the credibility of the witnesses and the weight to be assigned to their testimony. See Canal Ins. Co. v. Hopkins , 238 S.W.3d 549, 557 (Tex. App.

— T yler 2007, pet. denied) (citing City of Keller , 168 S.W.3d at 819). The finder of fact is free to believe one witness and disbelieve another, and reviewing courts may not impose their own opinions to the contrary. Id. Accordingly, we must assume that the finder of fact decided all credibility questions in favor of the findings if a reasonable person could do so. Id. Moreover, it is within the finder of fact's province to resolve conflicts in the evidence.
Canal , 238 S.W.3d at 557 (citing C ity of Keller , 168 S.W.3d at 820). Consequently, we must assume that, where reasonable, the finder of fact resolved all conflicts in the evidence in a manner consistent with the findings. Id . Where a reasonable finder of fact could resolve conflicting
evid ence either way, we must presume the finder of fact did so in favor of the findings. Id

. Where4

conflicting inferences can be drawn from the evidence, it is within the province of the finder of fact to choose which inference to draw, so long as more than on e inference can reasonably be
drawn. Id. Therefore, we must assume the finder of fact made all inferences in favor of the findings if a reasonable person could do so. Id.

E SSENTIAL T ERMS OF C ONTRACT As part of its sole issue, GDH argues that there was never a contract between the parties for
the sale of the nine acres and therefore, HDH could not recover for breach of contract . We agree. Applicable Law
The elements of an enforceable contract are (1) an offer; (2) an acceptance in strict compliance wit h 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 that it become mutual and binding on both parties; and (6) considera tion. Advantage Physical Therapy, Inc. v. Cruse , 165 S.W.3d 21, 24 (Tex. App.

– Houston [14 th Dist.] 2005, no pet.). F or a contract to be formed, the minds of the parties must meet with respect to the subject matter of the agreement and all its essential t erms. Argo Data Resource Corp. v. Shagrithaya
, 380 S.W.3d 249, 274 (Tex. App.

– Dallas 2012, no pet.); see also Potcinske , 245 S.W.3d at 530 ( ―ʻM eeting of the minds ’ describes the mutual understanding and a ss ent to the agreement regarding the subject matter and the essential terms of the contract .‖ ). The material terms of the contract must be agreed upon before a court can enforce the

contract. T.O. Stanley Boot Co. v. Bank of El Paso , 8 4 7 S.W.2d 218, 221 (Tex. 1992). An acceptance must not change the terms of an offer; if it does, the offer is rejected. Gilbert v.
Pettiette , 838 S.W.2d 890, 893 (Tex. App.

– Houston [1 st Dist.] 1992, no pet.). Acceptance must be
identical to the offer in order to make a binding contract. Id . A material change in a proposed contract constitutes a counteroffer, which must be accepted by the other party. Id . The question of
whether a contract contains all of t he essential terms for it to be enforceable is a question of law. Parker Drilling Co. v. Romfor Supply Co. , 316 S.W.3d 68, 74 (Tex. App.

– Houston [14 th Dist.] 2010, pet. denied). Contracts should be examined on a case by case basis to determine which

te rm s are material or essential. Id . A contractual provision dealing with payment is always an
essential element or a material term. See id . (citing John Wood Group USA, Inc. v. ICO, Inc. , 26 S.W.3d 12, 20 (Tex. App.

— Houston [1st Dist.] 2000, pet. denied); B L ACK ’ S L AW D ICTIONARY 1510 (8th ed. 2004)).5

Analysis Here, there is no dispute between the parties that they had not agreed in writing about what would happen to the earnest money if the sale did not close . Thus, the parties did not have a

― meeting of the minds ‖ on an essential term of the contract. See Potcinske , 245 S.W.3d at 530. Further, w hen Babaria struck out the term describing his responsibility to pay for clearing the nine

acres , Harvey’s offer was rejected. See Gilbert
, 838 S.W.2d at 893. Bec ause Babaria’s change regarded the earnest money , a material or essential term of the contract, Harvey must have accept ed the change for a contract to be formed. See Parker Drilling Co ., 316 S.W.3d at 74. Harvey did not do so . Therefore, no contract for the sale of the nine acres was ever formed
between GDH and HDH

. See Shagrithaya , 380 S.W.3d at 274. Accordingly, w e sustain th at portion of G DH ’ s issue regarding HDH’s breach of contract cause of action

.

P ROMISSORY E STOPPEL GDH also contends in its sol e issue that HDH did not meet the requirement s to recover under the theory of promissory estoppel.
A pplicable Law The requisites of promissory estoppel are (1) a promise ; (2) foreseeability of reliance thereon by the promissor; and (3) substantial relian ce by the promissee to his detriment. English
v. Fischer , 660 S.W.2d 521, 524 (Tex. 1983). When a promissor induces substantial action or forbearance by another, promissory estoppel prevents any denial of that promise if injustice can be avoided only by e nforcement. In re Weekl e y Homes, L.P. , 180 S.W.3d 127, 133 (Tex. 2005). Promissory estoppel does not create liability where none otherwise exists, but ―prevents a party from insisting upon his strict legal rights when it would be unjust to allow him to e nforce them.‖
Id . (quoting Wheeler v. White , 398 S.W.2d 93, 96 (Tex. 1965) )

. Damages recoverable in a case of promissory estoppel are not the profit that the promisee expected, but only the amount necessary to

restore it to the position it would have bee n in had it not acted in reliance on the promise. Fretz
Const. Co. v. S

. Nat ’l Bank , 626 S.W.2d 478, 483 (Tex. 198 1 ). Findings of Fact and Conclusions of Law The trial court made the following findings of fact and conclusions of law regarding
H DH ’s recov ery of damages based upon promissory estoppel:6 FINDINGS OF FACT
(9) [ GDH ] , or [its] officers, employees, agents or associates, represented to [ HDH ] that [its] purchase of the property was contingent upon [ HDH ] obtaining an acceptable survey and clearin g and leveling the property prior to closing.
(1 0 ) Relying upon the representations of [ GDH ] , or [its] officers, employees, agents or associates, [ HDH ] obtained a survey of the property at a cost of $1,500.00.
(11) Relying upon the representations of [ GDH ] , or [its] officers, employees, agents or associates, [ HDH ] cleared and leveled the property at a cost of $25,890.00.
(12) [ HDH ] would not have obtained the survey or cleared and leveled the property but for [ GDH ’ s ] representation that the same were necessary for the sale of the property to take place and that, if the sale did not take place, [ HDH ] would be reimbursed for the cost.
(13) Neither the survey nor the clearing and leveling work done by [ HDH ] increased the value or marketability of the pr operty.

CONCLUSIONS OF LAW
(4) [ HDH ] is entitled to recover the amounts expended by it for surveying, clearing and leveling in reliance upon [G DH’s ] requests and representations.

Analysis At trial, Harvey testified that while he and Babaria were neg otiating the terms of the contract, Babaria told him that he wanted the nine acres cleared before closing the sale

. He stated
that Babaria said he was not in a position to clear the land himself , and requested that Harvey clear the property prior to closin g. Harvey testified that , during the negotiations, he and Babaria met on
the site of the nine acres prior to Griffin ’s prepar ation of the written contract. According to Harvey, he arranged for Johnny Alford with North Toledo Bend Contractors, who m he hire d to clear the property, to be at his meeting with Babaria

. Harvey stated that Alford met Babaria before unloading his bulldozer to begin clearing the property

. H arvey also testified that he told Babaria that clearing the property would cost approximately $30,000.00
, and informed Babaria that this amount should be the earnest money for the contract . It is undisputed that Babaria tendered $30,000.00 in earnest money to Griffin, the closing agent for the transaction. Harvey also testified
that Alford comple t ed clearing the property in about two weeks. He stated that the clearing was substantially completed when he was informed by Griffin that Babaria struck out the clause in the real estate contract, refus ing to pay for the clearing if the sale did not clos e. According to Harvey , he paid Alford and a subcontractor f or clearing the property

.7

Babaria denied that he spoke with Harvey regarding his need for the nine acre s to be cleared prior to closing the sale . He also denied agreeing to pay for the clearing. Babaria testified
that he did not remember seeing Alford. He stated that he believed the clearing beg a n prior to his meeting wit h Harvey at the property site

. Babaria based his belief on the fact that he saw cut logs on the property at that time . In rebu ttal, Harvey testified that he had had timber cut off the property approximately six months earlier
, and that B abaria saw the remains of that operation. The trial court may take into consideration all of the facts and surrounding circumstances in
connecti on with the testimony of each witness
, and accept or reject all or any part of that testimony. See Santa Fe Petroleum v. Star Canyon Corp ., 156 S.W.3d 630, 638 (Tex. App.

– Tyler 2004, no pet.). Where enough evidence is before the fact finder that reasonabl e minds could differ on the meaning of the evidence, or the inferences and conclusions to be drawn from the evidence,

we may not substitute our judgment for that of the fact finder. See i d

. Here, Babaria and Harvey
testified to two different versions of t he facts. The trial court believed Harvey, and as the trier of fact, it wa s within its province to do so in resolving conflicts in the evidence and judg ing the credibility and the weight of the witness’s testimony. See Canal , 238 S.W.3d at 557. Thus,
beca use Harvey’s testimony supported the trial court’s findings of fact and conclusions of law , the evidence is legally and factually sufficient to support the judgment in favor of HDH ’s recovery based upon the theory of promissory estoppel. Accordingly, we ov errule that portion of GDH ’ s i ssue relating to promissory estoppel

.

D ISPOSITION W e have sustained G DH ’ s sole issue in part and overruled it i n part. Because we have held that the evidence is legally and factually sufficient to support the judgment on the theory of promissory estoppel , we affirm the judgment of the trial court.



### J AMES 

### T. W ORTHEN Chief Justice
Opinion delivered July 24 , 2013. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

( PUBLISH)8 

## COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS



## JUDGMENT

JULY 24 , 2013



### NO. 12

- 11

- 00398

- CV

G.D. HOLDINGS, INC., Appellant V. H.D.H. LAND & TIMBER, L.P.,

Appellees

_____________________________________________________________________________ Appeal from the 273 rd Judicial District Court of Shelby County, Texas. (Tr.Ct.No. 08CV

- 30,268)

_____________________________________________________________________________

THIS CAUSE came on to be heard on the appellate record and the briefs filed herein
, and the same being considered , it is the opinion of th is c ourt that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirm ed , and that all costs of this app eal are hereby adjudged against the appellant, G.D. HOLDINGS, INC. , for which execution may issue, and that this decision be certified to the trial court below for observance.

James T . Worthen, Chief Justice. Panel consisted of Worthen, C.J., Griffit h, J., and Hoyle, J.