NUMBER 13-07-00424-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

AUTO EXCEL LUBE CENTER, INC., Appellant,

v.

MIDSTATE ENVIRONMENTAL SERVICES, LLC, Appellee.

 

On appeal from the County Court at Law No. 2.

 of Nueces County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Benavides

Memorandum Opinion by Chief Justice Valdez

Appellant, Auto Excel Lube Center, Inc. (“Auto Excel”), appeals from a bench trial

judgment rendered in favor of appellee, Midstate Environmental Services, L.L.C.

(“Midstate”). By three issues, Auto Excel contends that: (1) the trial court erred in denying

its motion to transfer venue; (2) the evidence is legally and factually insufficient to establish

contractual liability; and (3) the trial court abused its discretion in awarding attorney’s fees.

We affirm.
 Midstate would process the used motor oil into a heating fuel, sell it for a profit, and dispose of the 1

filters and antifreeze in a lawful manner. 

2

I. BACKGROUND

On January 6, 2003, Midstate, an environmental services company, contracted with

Auto Excel, an automotive oil-change center, to collect Auto Excel’s used motor oil, oil

filters, and antifreeze. The contract was executed in Forth Worth by Allon Sturges, 1

Midstate’s northern division manager, and Tarek Wehbe, partial owner of Auto Excel.

Under the contract’s terms, Auto Excel would not be charged for the collection of used

motor oil. Auto Excel would be charged, however, for Midstate's collection of used oil filters

and antifreeze. The contract contains a handwritten phrase stating that “We [Midstate] will

supply two oil tanks for used oil for as long as we service this con[tract].” The contract

directs Auto Excel to remit payments to a post office box located in Corpus Christi, but it

states that Midstate’s principal place of business is in Waco. Although it does not specify

a duration, the contract contains a termination provision which allows either party to

terminate the agreement after a thirty-day written notice.

By all accounts, the arrangement worked for both entities until February 2005. At

that time, Wehbe allegedly prevented Midstate employees from entering Auto Excel’s

property to remove used oil because he had contracted with a different environmental

services company for the oil’s removal. Midstate then tried to retrieve its tanks, which were

constructed at Midstate’s expense for Auto Excel’s use, but Wehbe denied access to

Midstate’s employees.

A. Pleadings

On May 24, 2005, Midstate sued Auto Excel for breach of contract, quantum meruit,

and conversion, and it asserted that venue was proper in Nueces County “pursuant to the
 No trial occurred on September 16, and the record does not contain a continuance as to the 2

September 16 trial setting. 

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contract.” Midstate sought economic damages and attorney’s fees. On July 26, 2005,

Auto Excel answered by claiming that it had to contract with a different environmental

company because Midstate allegedly stopped collecting its used oil. Also on July 26, Auto

Excel moved to transfer venue to Tarrant County. On December 19, 2005, the trial court

signed a docket control order which set the case for trial on August 28, 2006. 

On August 3, 2006, Auto Excel’s counsel filed a “Motion to Withdraw and For

Continuance,” which stated that he had become extremely ill and could not continue to

represent Auto Excel. The trial court granted Auto Excel’s motion on August 24, and it

issued a new docket control order on August 28, which set September 16, 2006, as the

new trial date. On November 7, 2006, the trial court held a hearing on Auto Excel’s motion 2

to transfer venue. After receiving a post-hearing brief from Auto-Excel, the trial court

denied the motion to transfer. A bench trial commenced on February 5, 2007.

B. Testimony

Sturges testified that Midstate processes used motor oil into number five diesel fuel,

which is burned to heat asphalt during road construction, and it sells the fuel to paving

companies. Midstate would contract with service stations to either purchase or procure for

free used motor oil. Wehbe, on behalf of Auto Excel, entered into an “oil-for-free” contract

with Midstate. Sturges testified that Midstate, at its own expense, purchased two metal

tanks to hold Auto Excel’s used oil in between the bi-monthly pickups. Sturges then wrote

on the contract that “We [Midstate] will supply two oil tanks for used oil for as long as we

service this con[tract].” After the tanks were installed, a driver from Midstate’s Dallas office

made bi-monthly pickups of Auto Excel’s used oil. According to Sturges, the Auto Excel
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contract worked fine until Wehbe refused to allow Midstate to pickup used oil and chased

Midstate employees off of Auto Excel’s property. Struges further testified that there were

three unsuccessful attempts to retrieve Midstate’s tanks but that Wehbe continued to

chase Midstate employees off of Auto Excel’s property.

Regarding the cost of the tanks and Midstate’s principal place of business, the

record contains an invoice showing that Midstate paid $2,434 for two fabricated tanks. The

invoice was addressed to a post office box that Midstate rented in Corpus Christi. Sturges

testified that Midstate collects used oil throughout Texas, has offices in Waco, Dallas, and

Corpus Christi, and has its home office in Robstown.

Joe Hendrick, partial owner of Midstate, testified as to Midstate’s principal place of

business and lost profits. Hendrick testified that he worked out of Robstown. Hendrick

also testified that Midstate paid $750 to transport the tanks from Corpus Christi to Fort

Worth, $200 to paint them, and $150 to hire a wrecker to install them. Although the tanks

cost $2,434 to construct, Hendrick testified that he believed them to be worth $3,500 a

piece because of their good condition and the current market for tanks. Hendrick further

testified that he had not heard any complaints from Auto Excel about the timing or quality

of Midstate’s pickups, and Midstate had never received a thirty-day written termination

notice from Auto Excel. According to Hendrick, during the period from June 2003 to

February 2005, when the contract worked smoothly, Midstate picked up an average of 907

gallons of used oil from Auto Excel on a monthly basis. Hendrick also testified that

Midstate’s average profit per gallon of used oil is nineteen cents. Hendrick then calculated

that 907 gallons multiplied by twenty-three months, which represented the number of

months between March 2005 and January 2007, equaled 20,861 gallons of withheld oil.

Multiplying 20,861 gallons by an average profit of nineteen cents, Hendrick concluded that
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Midstate’s lost profits totaled $3,546.37.

Paul Dodson, one of Midstate’s attorneys, testified as to attorney’s fees. Dodson

testified that Midstate had paid his firm $10,947.50 for pre-trial legal services. He

estimated that the total bill for a full trial would be approximately $15,747.50, excluding

paralegal time. Dodson further testified that attorney’s fees for an appeal to the court of

appeals would be $10,000, a petition for review to the supreme court would be $7,000, and

a brief on the merits before the supreme court would be $10,000. Dodson further testified

that he was familiar with the rules of professional conduct and his fee estimates were in

accordance with those rules. After Dodson testified, Midstate moved to admit a timesheet

and several invoices that Dodson’s firm had submitted to Midstate for payment. Auto Excel

objected on the grounds that the timesheet could not be relied on for the truth of the matter

asserted and that no proper foundation had been established. The trial court admitted the

timesheet and invoices over Auto Excel’s objections. 

Wehbe testified that Midstate fell woefully behind in its pickups, and he was forced

to contract with a different environmental services company because Midstate’s sporadic

service disrupted Auto Excel’s business. Wehbe testified that he had an agreement with

Sturges that used oil would be picked up on a weekly basis and that Midstate complied at

the beginning of the agreement. Wehbe alleged that in 2004, Midstate began picking up

oil at sporadic intervals and that he had to use his own oil barrels to handle the overflow.

Wehbe claimed that he was forced to redirect Auto Excel employees’s time to moving and

storing the oil that Midstate should have picked up and that this slowed his ability to service

customers. He testified that he informed Sturges of the problem but to no avail. By 2005,

Wehbe thought Midstate had abandoned the contract; therefore, he contracted with a

different company.

C. Judgment
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The trial court rendered a judgment against Auto Excel for $3,547,37 in lost profits,

$7,000 for the tanks, $15,747.50 for attorney’s fees for trial, $10,000 for attorney’s fees on

an appeal, $7,000 for attorney’s fees for a petition for review to the supreme court, $10,000

for attorney’s fees for a brief on the merits before the supreme court, court costs, and preand-post judgment interest. The judgment provided that the $7,000 for the tanks could be

satisfied if Auto Excel returned the tanks to Midstate. The trial court also issued findings

of fact and conclusions of law. This appeal ensued.

II. VENUE

By its first issue, Auto Excel contends that the trial court erred in denying its motion

to transfer venue because there is no evidence to establish venue in Nueces County.

Specifically, Auto Excel argues that its contractual obligation to remit payments to

Midstate’s Corpus Christi post office box does not satisfy the performance requirement

under section 15.035 of the civil practice and remedies code in light of the contrary

evidence. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.035 (Vernon 2002). Midstate

responds by arguing that the remittance provision is sufficient. Even if the remittance

provision were insufficient, Midstate argues, Auto Excel waived any venue complaint by

filing motions to withdraw and for continuance that were not subject to its motion to transfer

venue and by not setting a hearing on its July 2005 venue motion until November 2006.

A. Standard of Review

An appellate court reviews a trial court’s denial of a motion to transfer venue de

novo. Wilson v. Tex. Parks & Wildlife Dep’t, 886 S.W.2d 259, 260-62 (Tex. 1994). We,

therefore, conduct an independent review of the entire record. TEX. CIV. PRAC. & REM.

CODE ANN. § 15.064(b) (Vernon 2002); Wilson, 886 S.W.2d at 260-62. If there is any

probative evidence in the record demonstrating venue was proper in the county where

judgment was rendered, we must uphold the trial court's ruling. See Bonham State Bank
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v. Beadle, 907 S.W.2d 465, 471 (Tex. 1995); Morris v. Tex. Parks & Wildlife Dep’t, 226

S.W.3d 720, 723 (Tex. App.–Corpus Christi 2007, no pet.).

B. Applicable Law

Section 15.035(a) provides that:

Except as provided by Subsection (b), if a person has contracted in writing

to perform an obligation in a particular county, expressly naming the county

or a definite place in that county by that writing, suit on or by reason of the

obligation may be brought against him either in that county or in the county

in which the defendant has his domicile.

TEX. CIV. PRAC. & REM. CODE ANN. § 15.035(a). Venue is proper under section 15.035(a)

of the civil practice and remedies code in the county where a contract specifies

performance, which includes payment for services rendered. See id; see also Roach v.

Schaefer, 214 S.W.2d 128, 130 (Tex. Civ. App.–Fort Worth 1948, no writ) (providing that

venue is proper in the county where insurance premiums were to be paid).

C. Analysis

In the instant case, the trial court did not issue factual findings regarding its decision

to deny Auto Excel’s venue motion. Nonetheless, there is probative evidence to support

the trial court’s order. See Wilson, 886 S.W.2d at 262. The contract required Auto Excel

to pay Midstate in Corpus Christi. Sturges and Hendrick testified that both parties abided

by the contract for approximately 21 months, then Auto Excel suddenly refused to allow

Midstate’s trucks onto its property. Auto Excel’s argument that the contract fixes Midstate’s

principal place of business in Waco is beside the point because performance occurred in

Nueces County. See Roach, 214 S.W.2d at 130. Moreover, we are not allowed to accept

Auto Excel’s invitation to engage in a factual sufficiency review of the evidence supporting

the trial court’s venue decision. See Ruiz v. Conoco, 868 S.W.2d 752, 758 (Tex. 1993).

Auto Excel’s first issue is overruled.

III. LEGAL AND FACTUAL SUFFICIENCY
 W e note that parts of Auto Excel’s brief argue that Midstate committed a prior material breach of

3

the contract, and therefore, mitigation was necessary. These arguments, however, are not supported by legal

authority or cogent analysis. See TEX. R. APP. P. 38.1(h). Therefore, they are not properly before us, and we

will address the only argument in issue two that complies with our basic briefing requirements.

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By its second issue, Auto Excel argues that the evidence is legally and factually

insufficient to support a finding that a valid contract existed between the parties because

there was no “mutual obligation.”3

A. Standard of Review

At the conclusion of the bench trial, the court issued findings of fact, which have the

same force and effect as a jury’s verdict. Gregory v. Sunbelt Sav., F.S.B., 835 S.W.2d

155, 158 (Tex. App.–Dallas 1992, writ denied). When we review for legal sufficiency, we

review the record to determine if there is evidence to support the finding, crediting

favorable evidence if reasonable jurors could and disregarding contrary evidence unless

reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 811 (Tex. 2005).

When the plaintiff bears the burden of proof at trial and receives a negative finding, we will

only reverse that finding for legal insufficiency if the plaintiff on appeal conclusively

establishes the opposite of the finding. Id. 

When reviewing factual sufficiency points, we do not merely substitute our opinion

with that of the trial court; rather, we “consider and weigh all of the evidence and will set

aside the verdict only if the evidence is so weak or the finding so against the great weight

and preponderance of the evidence that it is clearly wrong and unjust.” Id. at 826.

We review the conclusions of law de novo. State v. Heal, 917 S.W.2d 6, 9 (Tex.

1996). Under a de novo review, we exercise our own judgment and redetermine each legal

issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1999). A conclusion will be upheld

on appeal if the judgment can be sustained on any legal theory supported by the evidence.

BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).
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B. Applicable Law

A contract must be based upon a valid consideration, or in other words, mutuality

of obligation. See Tex. Gas Util. Co. v. Barrett, 460 S.W.2d 409, 412 (Tex. 1970); Langley

v. Norris, 173 S.W.2d 454, 458 (Tex. 1943); Tex. Farm Bureau Cotton Ass'n v. Stovall, 113

Tex. 273, 253 S.W. 1101, 1105 (Tex. 1923). Consideration is a bargained for exchange

of promises. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 496 (Tex. 1991).

Consideration consists of benefits and detriments to the contracting parties. Id. The

detriments must induce the parties to make the promises and the promises must induce

the parties to incur the detriments. Id. A contract that lacks consideration lacks mutuality

of obligation and is unenforceable. See Tex. Farm Bureau, 253 S.W. at 1105.

C. Analysis

The trial court’s first finding states: ”[Midstate] and [Auto Excel] entered into a valid

contract on January 6, 2003 . . . .” As consideration for its part of the bargain, Midstate

provided Auto Excel with two tanks, each of which cost $2,434 to construct, and promised

to pick up used motor oil from Auto Excel’s facility. Auto Excel, in return, got free disposal

of its used motor oil, a commodity that, at the time, it chose not to sell. Thus, there is

legally and factually sufficient evidence to support benefits and detriments to both parties.

See Roark, 813 S.W.2d at 496. Auto Excel’s second issue is overruled.

IV. ATTORNEY’S FEES

By its third issue, Auto Excel contends that the evidence is legally and factual

insufficient to support an award of attorney’s fees. Reasonable attorney's fees are

recoverable in a suit for breach of contract. See TEX. CIV. PRAC. & REM. CODE ANN. §

38.001(8) (Vernon 1997). The determination of reasonable attorney’s fees is a question

for the trier of fact. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 12 (Tex. 1991). The

amount of a fee award rests in the sound discretion of the trial court, and its judgment will
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not be reversed on appeal absent a clear abuse of discretion. Alford v. Johnston, 224

S.W.3d 291, 298 (Tex. App.–El Paso 2005, pet. denied). 

Courts are to consider the following factors when determining the amount of

reasonable attorney's fees: (1) the time and labor required, novelty, and difficulty of the

question presented and the skill required to properly perform the legal service; (2) the

likelihood that the acceptance of employment precluded other employment by the lawyer;

(3) the fee customarily charged in the locality for similar services; (4) the amount involved

and the results obtained; (5) the time limitations imposed by the client or by the

circumstances; (6) the nature and length of the professional relationship with the client; (7)

the experience, reputation, and ability of the lawyer performing the services; and (8)

whether the fee is fixed or contingent. See Arthur Andersen & Co. v. Perry Equip. Corp.,

945 S.W.2d 812, 818 (Tex. 1997). When making this inquiry, courts are free to look at the

entire record, the evidence presented on reasonableness, the amount in controversy, the

common knowledge of the participants as lawyers and judges, and the relative success of

the parties. Garrod Invs., Inc. v. Schlegel, 139 S.W.3d 759, 767 (Tex. App.–Corpus Christi

2004, no pet.). 

In the instant case, the invoices that the trial court admitted reveal that Van

Huseman, a Midstate attorney, was the primary attorney responsible for Midstate’s

prosecution of the underlying suit and that he charged $300 per hour for his services. The

monthly invoices show that Huseman’s firm billed the following amounts to Midstate:

Month Amount Billed

July 2005 $706.04

August 2005 $799.81

September 2005 $492.11

November 2005 $633.67

January 2006 $159.91

February 2006 $357.19

March 2006 $307.41

June 2006 $503.19
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July 2006 $433.80

August 2006 $772.87

September 2006 $1,439.75

October 2006 $2,051.00

November 2006 $719.75

December 2006 $1,835.00

January 2007 $434.10

The invoice bill included paralegal time and expenses, which amounted to $11,645.60.

Dodson testified that Midstate had already paid the firm $10,947.50 for pre-trial legal

services, and he estimated that the total bill for a full trial would been approximately

$15,747.50. Dodson also provided estimates for future legal services, should they be

required. Based upon the extensive record before us, we cannot say that Auto Excel’s

third issue has any merit because there is factually and legally sufficient evidence

supporting the judgment. Accordingly, Auto Excel’s third issue is overruled.

V. CONCLUSION

The trial court’s judgment is affirmed.

_______________________

ROGELIO VALDEZ

Chief Justice

Memorandum Opinion delivered and

filed this the 25 day of August, 2008. th