Affirmed and Memorandum Opinion filed April 17 , 2014

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 13

- 00125

- CV

MAX PROTETCH, INC. , Appellant

V.
JOHN A. HERRIN , Appellee

On Appeal from the 125th District Court

Harris County, Texas Trial Court Cause No . 2009

- 29153

M E M O R A N D U M O P I N I O N

Max Protetch , Inc. appeals the trial court ’ s judgment in favor of John A.
Herrin in connection with Herrin ’ s breach of contract claim. We affirm.

B ACKGROUND

The late Scott Burton was a sculptor known for his furniture de signs. Herrin and his wife, Carola, discovered Scott Burton ’ s work and be came interested in purchasing a Scott Burton arch table and chairs

. At that time, Protetch , Inc. had2

the exclusive right to market, fabricate, and sell Scott Burton pieces.

T he He rrins met Protetch , Inc. ’ s owner, Max Protetch , in New York in
December 2004 to discuss purchasing a Scott Burton table. After learning the price of a table a nd chairs, the Herrins decided to purchase only a table. Max
Protetch directed t he Herrins to th e Cooper

- Hewitt, National Design Museum in
New York to view a Scott Burton table that w as on display

. He also told the
Herrins that the McNay Art Museum in San Antonio was displaying Scott Burton pieces

. The Herrins visited the Coo per

- Hewitt , National D esign Museum and inspected the Scott Burton table and chairs

. The Herrin s testified that the table on display was a “honey, golden color and it had a translucency where you could just sense that there was stainless steel beneath it.” The Herrins later vi sited the McNay Art Museum in San Antonio and testified that the Scott Burton chairs on display had the same finish as the table on display at the Cooper

- Hewitt , National Design Museum. After inspecti ng the table at the Cooper

- Hewitt , National Design Mus eum , the Herrins decided to purchase a table from the same edition. Max Protetch
warned the Herrins that there might be some variation in the color and finish. Max
Protetch sent Herrin an invoice on March 4, 2005 , reflecting the purchase of a
Scott Burto n table for $65,000 . The invoice included this information : (1) the parties’ name ; (2) a reference to the table being a part of a Scott Burton edition of
five ; 1 (3) the table’s length , width, and height ; (4) the table’s price ; (5) payment

terms ; and (6) a reference to the table’s steel composition

. Herrin testified that the table’s color was not specified in the invoice because there was no question what

1 Max Protech testified at trial that “ 3/5D ” in the invoice meant that the table was “n umber 3 in an edition of 5. ”3

the color was to be. The Herrins paid the balance due on the table in February 2006. Peter Versteeg fabricated the table. 2 Versteeg testified that the table was properly
fabricated in accordance with the Scott Burton’s blueprints. The table was
delivered to the Herrins ’ Houston home on May 31, 2007. Herrin testified that he was extremely displeased with the color of the table
because it did not match the table on display at the Cooper

- Hewitt , National Design Museum or the chairs on display at the McNay Art Museum. The next day,
Herrin called and emailed Max Protetch to complain that the color and fi nish of the
table were incorrect.

Max Protetch t raveled to Houston in July 2007 to inspect the table. After inspecting the table, Max Protetch offered to refinish it

. Max Protetch later learned
th at the table could not be refinish ed; he offered to have a new table fabricated for
Herrin. Max Protetch sent Herrin p ictures of the new table

. Herrin testified that
the pictures revealed that the second table had the same finish and was essentially
the same color. Herrin told Max Protetch in an email that h e was dissatisfied with the appearance of the second table. Max Protetch responded to Herrin’s complaint by stat ing : We should also remind ourselves that the one you initially saw is more than 10 years old. The translucent gold brown quality is somethin g that develops as the steel ages, and the same effect can be expected with this new piece a few years down the road. Herrin rejected the second table and demanded his money back.

Protetch , Inc. refused to refund Herrin ’ s money, and Herrin sued Protetc h ,

2 Versteeg worked directly with Scott Burton before he died and was the only person to fabricate Scott Burton tables at the time of this suit.4

Inc. for breach of contract. 3 The case was tried before a jury. At trial, Herrin introduced pictures of the first table he received, the second table he was offered, the pair of Scott Burton chairs on display at the McNay Art Museum, and a prototype o f the Scott Burton table. 4 The pictures of the first table he received and
the second table he was offered show that the tables were dark grey. The picture of the chairs at the McNay Art Museum and the prototype show that these pieces

were a honey gold c olor. The jury found that Protetch , Inc. breached its contract
with Herrin. This appeal followed.

A NALYSIS In one issue on appeal, Protetch , Inc. asserts that the evidence is legally and factually in sufficient to support the jury ’ s finding of breach of contract. Protetch , Inc. argues that (1) the parties ’ contract did not contain a provision for a particular color or finish for the table; (2) the parol evidence rule prohibits Herrin from adding additional terms to the contract ; (3) color wa s not a term of the parties’ agreement because Herrin never informed Protetch , Inc. that he wanted the table to be a particular color; (4) Herrin was warned that no particular color or finish was guaranteed; and ( 5 ) expert testimony established that the table was fabr icated properly in compliance with the deceased artist ’ s blueprints.

I. Legal and Factual Sufficiency Challenges

A

. Standard of Review and Applicable Law

W hen reviewing the legal sufficiency of the evidence, we review the evidence in the light most favor able to the challenged finding and indulge every reasonable inference that would support it

. City of Keller v. Wilson , 168 S.W.3d

3 Carola Herrin was not a party to the suit.

4 Max Protech testified at trial that a prototyp e is “ a piece that ’ s made in preparation for making an edition and sometimes there are changes from the prototype, working out ideas. ”5

802
, 82 2 (Tex. 2005)

. We credit favorable evidence if a reasonable fact finder
could do so , and disregard contrary evidence unless a reasonable fact finder could

not do so

. Id . at 827. The evidence is legally sufficient if it would enable a
reasonable and fair

- minded person to reach the verdict under review. Id

. Evidence is legally insufficient when (1) there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or 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 evid ence establishes conclusively the opposite of the vital fact. Id. at 810.

When reviewing the factual sufficiency of the evidence , we must consider and weigh all the evidence. Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 761 (Tex. 2003). We c an set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. Id

. We may not substitute our own judgment for that of the trier of fact. Mar. Overseas Corp. v. Ellis , 971 S.W.2d 402, 407 (Tex. 1998 ). The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. Jones v. Smith , 291 S.W.3d 549, 555 (Tex. App.

— Houston [14th Dist.] 2009, n o pet.).

B

. The Agreement The jury answered “ yes ” to a question in the jury charge asking, “Did Max Protetch, Inc. fail to comply with the parties’ agreement?” The jury charge d id not define the term “ agreement. ” Protetch, Inc. does not argue on appeal that the trial court erred by failing to define agreement in the jury charge

. The essential elements of breach of contract are (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach by the defendant; an d (4) damages as a result of the defendant’s breach. West v.6

Triple B Servs

. , LLP , 264 S.W.3d 440, 446 (Tex. App.

— Houston [14th Dist.] 2008, no pet.) . A breach occurs when a party fails or refuses to do something he has promised to do. Id. To prove the existence of a valid contract, a plaintiff must
establish : (1) an offer; (2) an acceptance in strict compliance with 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) execut ion and delivery of the contract with an intent it become mutual and binding on both parties; and (6) consideration. Coleman v.
Reich , 417 S.W.3d 488, 491 (Tex. App.

— Houston [14th Dist.] 2013, no pet.)

. Protetch , Inc. asserts that all governing contract terms are contained in the March 4, 2005 invoice , and that “the parol evidence rule bars Herrin’s subjective interpretations” of any asserted contract terms that do not appear in the invoice.
Protetch , Inc. cites Harrison v. Facade, Inc. , 355 S.W.2d 543, 545 (Tex. Civ. App.

— Dallas 1962, no writ) , for the proposition that , “[w]hen a business uses invoices and when the invoice contains the important terms of an agreement incorporated into it, the invoice is the parties’ contract

. ”

In Harrison , t he parties e ngaged in a course of business dealings in which the plaintiff ordered goods from the defendant. Id. at 544. Upon receiving an order, the defendant sent the goods and an invoice containing the terms of the parties ’ agreement to the plaintiff. Id. at 55 5. The price of the goods ordered and
other items were mentioned for the first time in the invoice . Thus, the parties ’ contract was not complete until the plaintiff accepted the invoice together with the goods. Id. at 546. Based on these facts, t he cou rt held that the invoice was the parties’ contract. Id.

Harrison is in apposit e here. Viewed in light of the charge as given, which did not define the term “agreement,” t he evidence in this case supports a finding of a prior completed o ral contract. Ma x Protetch testified that he reached an7

agreement with Herrin before the March 4, 2005 invoice was sent. He also testified that the invoice reflected the terms of the prior oral agreement. Protetch, Inc.’s reliance on the parol evidence rule also is misp laced. “ When the parties have concluded a valid, integrated agreement, the parol evidence rule precludes enforcement of a prior or contemporaneous inconsistent agreement. ” Edascio, L.L.C. v. NextiraOne L.L.C ., 264 S.W.3d 786, 796 (Tex. App.

— Houston [1st Dist.] 2008, pet. denied) . A written instrument is integrated if it presumes that all prior agreements relating to the transaction have been merged into it and will be
enforced as written. Id. When the written agreement contains a merger clause, the

par ol evidence rule is particularly applicable. See id.
Here, the invoice did not contain an integration or merger clause. T he invoice is not a valid integrated agreement, and the parol evidence rule does not apply. See Houston Exploration Co . v. Welling ton Underwriting Agencies , Ltd. , 352 S.W.3d 462, 469 (Tex. 2011)

. C

. Color as a Term of the Agreement Having concluded that the invoice was not a valid integrated agreement , it is necessary to determine whether color was a term of the oral agreement

. Prot etch , Inc. asserts that it did not breach its contract with Herrin because color was not a
term of their agreement . To support this assertion, Protetch , Inc. argues that (1)
Herrin did not inform Protetch , Inc. of the color he wanted ; (2) Herrin was warne d that no particular color or fin ish was guaranteed; and (3) expert testimony at trial
establish e d that the table was properly fabricated in accordance with Scott Burton ’ s blueprints.

Protetch , Inc. argues that color cannot be a term of the parties’ agre ement because Herrin did not specify the color he wanted

. Herrin a sserts that he did not8

discuss color with Protetch , Inc. because the parties agreed that Herrin ’ s table would be the same edition as the table at the Cooper

- Hewitt , National Design
Museum. At trial, the Herrins , Max Protetch , and Versteeg 5 testified that pieces
from the same edition should be the same color and finish. Herrin testified that
Protetch , Inc. di d not have a Scott Burton piece ; therefore , Max Protetch directed
Herrin to the Coo per

- Hewitt , National Design Museum and McNay Art M u seum to view Scott Burton pieces and understand what the table would look like

. Herrin
described the table and chairs on display at the museums as a translucent honey gold color. A picture of the chairs at the McNay Art Museum shows that they

were a honey gold color. Herrin also testified that the pieces were in the same edition as the table he and his wife were interested in purchasing.

Protetch , Inc. asserts that color cannot be a term of the contrac t because its

owner , Max Protetch , warned Herrin that no particular color or finish was guaranteed. Herrin argues that he was not warned that no particular color or finish was guaranteed; instead, he testified that he was warned that “some variation” in

c olor was possible. Herrin further cites Versteeg’s testimony that only slight variations of color are to be expected in pieces within the same edition

. Protetch , Inc. also argues that expert testimony conclusively establishes that
it did not breach its agreement with Herrin

. Versteeg testified that the table was properly fabricated in accordance with Scott Burton’s blueprints
, and that a honey gold color Scott Burton table with a translucent finish did not exist . He further
testified that fabricating s uch a table would violate his agreement with the New
York Museum of Modern Art.

E vidence at trial established that Scott Burton pieces in the same edition

5 Peter Versteeg was Protetch Inc. ’s only expert witness. At the time of trial, he was the only person to have fabricate d a Scott Burton table after Scott Burton died.9

were a different color than the table Herrin received. Herrin testified that the table
he and his wife received was “blackish with just a hint of brown to it.” Pictures
also demonst rated that the table Herrin received was a different color than the chairs on display at the McNay Art Museum. Further, Max Protetch indicated in
an email to Herrin that t he table he received was a different color than the other pieces in the edition , stating: We should also remind ourselves that the one you initially saw is more than 10 years old. The translucent golden brown quality is something that develops as the st eel ages, and the same effect can be expected with this new piece a few years down the road. There was no testimony tha t Max Protetch warned Herrin that the honey gold color would take years to acquire. Viewing this evidence in a light most favorable to the
verdict , a reasonable jury could have concluded that Protetch , Inc. breached its
contract with Herrin because Herrin had a reasonable expectation that his table would have a translucent, honey gold finish

. See City of Keller , 168 S.W.3d at 821 (“[I]n every circumstance in which reasonable jurors could resolve conflicting evidence either way, reviewing courts must presume they did so in favor of the prevailing party, and disregard the conflicting evidence in their legal sufficiency review.”) ; Waterways on Intercoastal, Ltd. v. State , 283 S.W.3d 36, 43 (Tex. App.

— Houston [14th Dist.] 2009, no pet.)

. Likewise, weighing the evidence in the record before us, we cannot conclude that the jury’s finding that Protetch , Inc. breached its agreement with Herrin is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Golden Eagle Archery, Inc. , 116 S.W.3d at 761. We conclude that the jury’s finding that Protetch , Inc. breached its contract with Herrin is supported b y more than a scintilla of evidence; thus, the evidence is legally sufficient to support a judgment based on the jury’s verdict . Further, we10

cannot , based on this record, say that the jury’s finding is against the great weight and preponderance of the evi dence; thus, the evidence is factually sufficient as
well.

C ONCLUSION We conclude that the evidence is legally and factually sufficient to support the jury’s finding. We therefore overrule Protetch , Inc. ’s single issue on appeal
and affirm the trial cou rt’s judgment.

_____________________________ William J. Boyce Justice

Panel consists of Justices Boyce, Christopher, and Brown.