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. 

BACKGROUND

The late Scott Burton was a sculptor known for his furniture designs. Herrin 

and his wife, Carola, discovered Scott Burton’s work and became interested in 

purchasing a Scott Burton arch table and chairs. At that time, Protetch, Inc. had 
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the exclusive right to market, fabricate, and sell Scott Burton pieces. 

The Herrins 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 and chairs, the Herrins decided to purchase only a table. Max 

Protetch directed the Herrins to the Cooper-Hewitt, National Design Museum in 

New York to view a Scott Burton table that was on display. He also told the 

Herrins that the McNay Art Museum in San Antonio was displaying Scott Burton 

pieces. 

The Herrins visited the Cooper-Hewitt, National Design Museum and 

inspected the Scott Burton table and chairs. The Herrins 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 visited 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 inspecting the table at the Cooper-Hewitt, National Design Museum, 

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 Burton 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;

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(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 

“number 3 in an edition of 5.”
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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 finish of the 

table were incorrect. 

Max Protetch traveled to Houston in July 2007 to inspect the table. After 

inspecting the table, Max Protetch offered to refinish it. Max Protetch later learned 

that the table could not be refinished; he offered to have a new table fabricated for 

Herrin. Max Protetch sent Herrin pictures 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 he was dissatisfied with 

the appearance of the second table. Max Protetch responded to Herrin’s complaint 

by stating: 

We should also remind ourselves that the one you initially saw is 

more than 10 years old. The translucent gold brown quality is 

something 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 Protetch, 

 

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. 
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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 of 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 color. The jury found that Protetch, Inc. breached its contract 

with Herrin. This appeal followed.

ANALYSIS

In one issue on appeal, Protetch, Inc. asserts that the evidence is legally and 

factually insufficient 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 was 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 fabricated 

properly in compliance with the deceased artist’s blueprints. 

I. Legal and Factual Sufficiency Challenges

A. Standard of Review and Applicable Law

When reviewing the legal sufficiency of the evidence, we review the 

evidence in the light most favorable 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 prototype is “a piece that’s made in preparation for 

making an edition and sometimes there are changes from the prototype, working out ideas.”
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802, 822 (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 evidence 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 can 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, no 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 did 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; and (4) damages as a result of the defendant’s breach. West v. 
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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) execution 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, the parties engaged 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 555. 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, the court held that the invoice was the 

parties’ contract. Id. 

Harrison is inapposite here. Viewed in light of the charge as given, which 

did not define the term “agreement,” the evidence in this case supports a finding of 

a prior completed oral contract. Max Protetch testified that he reached an 
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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 misplaced. “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 

parol evidence rule is particularly applicable. See id. 

Here, the invoice did not contain an integration or merger clause. The 

invoice is not a valid integrated agreement, and the parol evidence rule does not 

apply. See Houston Exploration Co. v. Wellington 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. Protetch, 

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 warned 

that no particular color or finish was guaranteed; and (3) expert testimony at trial 

established 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’ agreement 

because Herrin did not specify the color he wanted. Herrin asserts that he did not 
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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 Versteeg5testified that pieces 

from the same edition should be the same color and finish. Herrin testified that

Protetch, Inc. did not have a Scott Burton piece; therefore, Max Protetch directed

Herrin to the Cooper-Hewitt, National Design Museum and McNay Art Museum 

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 contract 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 

color 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 such a table would violate his agreement with the New 

York Museum of Modern Art. 

Evidence at trial established that Scott Burton pieces in the same edition 

 

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Peter Versteeg was Protetch Inc.’s only expert witness. At the time of trial, he was the 

only person to have fabricated a Scott Burton table after Scott Burton died. 
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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 demonstrated 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 the 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 steel ages, and the same effect can be 

expected with this new piece a few years down the road. 

There was no testimony that 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 by more than a scintilla of evidence; thus, the evidence is 

legally sufficient to support a judgment based on the jury’s verdict. Further, we 
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cannot, based on this record, say that the jury’s finding is against the great weight 

and preponderance of the evidence; thus, the evidence is factually sufficient as 

well. 

CONCLUSION

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 court’s judgment. 

_____________________________

William J. Boyce

Justice

Panel consists of Justices Boyce, Christopher, and Brown.