AFFIRM; Opinion I’ tied .Januar 23, 2013.

in The 

### (Ltnirt 

## uf tipiah 

## .Fift1! Ji5trict 

## uf Icxa 

## at Ja11a No. 05-I 1-00715-CV
SMITH PROTECTIVE SERVICES, 

### INC., Appellant V. FEDEX NATIONAL LTL, INC., Appellee
On Appeal from the 

### 95th Judicial District Court Dallas County, Texas Trial Court Cause No. I)C-08-i3718-D



### MEMORANDUM OPINION Before Justices Bridges, Lang, and Richter 1 Opinion By Justice Lang Smith Protective Services, inc. appeals following abench trial based on partially stipulated facts. The trial court awarded Feclhx National LTL, inc. breach of contract damages for losses FedEx sustained as a result of the theft of cargo at a FedEx terminal guarded by Smith security officers. in two issues, Smith argues the trial court erred in concluding Smith breached the contract and failed to prove its mitigation defense. We affirm the trial court’s judgment. I. BACKGROUND Relevant stipulations established that in May 2005, FedEx’s corporate predecessor, Watkins

The Honorable Martin Richter. Retired Justwe. Fifth District Court oF Appeals. Dallas. Texas. sitting by assignment.Motor Lines, Inc., contracted with Smith br guard services. Approximately one year later, Watkins assigned the contract to FedEx. Under the contract, Smith was to provide security officers for FedEx ‘s I ort \\orth terminal. The theft occurred in the early morning hours ofJune 2, 2008. Thieves entered the terminal through a hole cut in the perimeter fence and stole merchandise from several trailers. The hole had been cut the previous night and was the second hole cut in three days. At the time ofthe theft, Smith guard Joshua Suwal was on duty. Less than a week after the theft, FedEx terminated the contract with Smith. The parties stipulated that during the term ofthe contract, Smith was paid a total of$832,075.36 lbr its services. Further, the parties stipulated that (a) the contract was valid; (b) FedEx performed its obligations; and. (c) FedEx sustained damages in the amount of$108.308.52 as a result ofthe theft. Based on the live pleadings and stipulations, the issues at trial were whether Smith breached the contract by fiuiling to perform its obligations under the contract, including conducting regular patrols and indemnifying Fedhx, and whether FedEx mitigated its damages. 2 Ben Sittig, a Watkins Terminal Manager at the time the contract was executed and a FedEx Service Center Manager at the time ofthe theft, testified that under the contract Smith guards were to (1) guard against fire, theft, damage, and trespass; (2) pen’nit only duly authorized persons to enter the premises; (3) make regularly scheduled tours of the premises, checking all gates, doors, windows, and lights; (4) report any unusual incidents or hazardous conditions as soon as practicable to FedEx-designated representatives: (5) submit a written report covering all incidents or hazardous conditions at the conclusion ofeach tour; and

2 Also tried were issues ofwhether Smith breached the contract by holing to carry property damage liability insurance naming Fedhx as an addiuonal named insured and Smith’s own breach ofcontract counterclaim against FedEx for terminating the contract without thirtydays’ notice and “good cause’ as required by the contract. The trial court concluded both these claims failed, and neither party challenges the judgment in that regard. .‘\ccordinglv. we limit our recitation of facts to those that apply to the issues before us.

### (6) comply with post orders which were attached to the contract.’ 

### Accordingto Sittig, the “unusual 

### incidents orhazardous conditions” thatthe guards wereto report included “[a]larms, break-ins, unauthorized 

### personnel, fires, [andi hazardous leaks,” and the designatedrepresentatives who 

### were to

### receivethesereports were FedEx operations managerLynn Moore, supervisorBrandon Bode, orhimself. AtthetimeWatkinsenteredintothecontractwithSmith,theterminalwasclosedonholidays only. Althoughthecontractprovided forregularpatrols or“tours ofthepremises,” the guards were expectedatthattimeto just operate

### thegate”and “logthetrucks”whentheterminalwasopen and to patrol when the terminal was closed. In 2006, around thetime FedEx succeededWatkins, the terminal operating hours changed to a “restricted schedule,” and guards were expected to patrol not only on holidays, but on weeknigbts and weekends as well. Sittig testified that the patrols were to occur every 

### two hours. This was communicatedorallyand inwritingto Smith managers, andtheyagreedto the schedule. Sittigfurthertestifiedhemetquarterlywith Smithmanagerstodiscusstheguards’ performanceand “make sure everything was secure,” and he did not remember any manager disputing thatpatrols wererequired. Dailyofficerreports (“DOW’), requiredbythepostorders,reflectedthatmostguards wereregularlypatrollingthe tenninal, and Sittighadpersonallyobservedthempatrolling, Althoughthe terminalwas protected by aperimeterfence alarm system, the firstcut inthe fence didnottriggerthe alarm, butwas discoveredbythe lawn maintenancecrewmid-morning on May 30. Sittig was advised that same day. He did not inform any FedEx supervisors or Smith managers ofthehole, but, beforeleavingtheterminal fortheweekend, instructedthe guardonduty

‘mepoetorders contained additional “niandatc.y”wccktales and regulations such atherequirennitto monitorall activityat thefrontgate andtheiwnesoftheFedflx representatives tocontactincaseofan sumrgmoy.


### -3-to monitor the area and to inform the other guards working that weekend of the need to monitor that spec c area. On Sunday, June 1, at around 5;0( a.m., an alarm company operator called Sittig to inlbrm him that the fence alarm had been triggered. The operator had already contacted Suwal, the guard
on duty at the time. Because the operator did not express any concern, and other thlse alarms had occurred in recent weeks. Sittig assumed this alarm was false. Sittig directed the operator to place the system on “test mode” so that ifthe alarm was triggered again, it could be disregarded. The following morning, Sittig learned from dock supervisor Johnny Pruitt that a second hole had been cut in the fence and the theft at issue here had occurred. Sitting testitied he went to the terminal after receiving the phone call and found that the thieves had stolen cargo from trucks parked along the fence. Sittig later learned that Suwal had discovered the second hole during his overnight shift on May 3 1 and informed Pruitt about it during his overnight shift on June 1. In Sittig’s opinion, stronger security measures, including moving the trailers from the fence, could have been taken had Suwal and Pruitt reported the second hole to him or Moore, the operations manager. Sittig acknowledged that stronger security measures could also have been taken ifhe had reported the first hole to Smith management or FedEx superiors. He acknowledged, too, that he was aware that not all guards were patrolling regularly, but he did not report this to Smith managers. Sittig’s testimony that he met with Smith managers quarterly to discuss the guards’ performance and that the guards did not make scheduled tours ofthe premisses prior to 2006 was corroborated by Paul Atwell, a Smith operations managerfrom 1995 to 2005. Also corroboratedwas Sittig’s testimonythat Smith guards were requiredto regularlypatrolthe premises oncethe operating hours of the terminal changed. Smith’s “post supervisor” Santos Gracia and FedEx operations manager Moore agreed that Smith guards were required to conduct patrols when the terminal wasclosed, although Gracia believed they were to patrol the dock area only and Moore believed they
were to patrol univ the tence line. Fedhx regional securit managerNolan Burns testified he investigated the theft and prepared

a report. Sittig, Pruitt. Suwal. and two other Smith guards who were on duty the weekend the theft occurred were interviewed as part ofthe investigation. Burns learned from the interviews that none ofthe guards was aware of the requirement offence patrols. He also learned that Pruitt and Suwal found several trailers from which locks were removed the night ofJune I. No merchandise was missing, however, and neither Pruitt nor Suwal reported their findings to Sittig or Moore. Burns testified thathe inspected the area where the theft occurred and found no evidence that any “devices” such as a forklift or dofly were used. Based on that. he believed the stolen cargo was removed by hand over a period ofat least three hours. He concluded the theft occurred between midnight and 4:30 a.m. and that several people were involved. He further concluded that the “security failure” resulted fi-om several factors including the failure ofthe guards to regularly patrol the premises and the failure to promptly notify proper personnel about the second cut in the fence and the trailers that had been tampered with. In his opinion, the thieves knew the guards were not patrolling, and the theft could have been pievented ifregular patrols had occurred. Jeffrey Greer, FedEx National’s vice president and general counsel, testified he met with Smith personnel on June 3, 2008 and learned from them for the first time that they did not believe the security guards were requiredto conduct patrols. He made the decision to terminate the contract with Smith after a third cut in the fence was discovered June 4, 2008. F-Ic looked at the contract 

### “to
see whatwe’d have to do to get paid for our losses,” and on October 1, 2008, made a written demand to Smith for payment for the losses. Although the contract provided that Smith was to “indemnify, defend and hold harmless [FedEx) from all losses arising out of... property damages, claims, suit,damages. expenses or liabilities arising out otor connected in any with [Smith’s] operations. Smith did not tender payment. 

### After the i-eeord was closed, the trial court rendered iudgrnent for l-’edEx. specifically finding Smith breached its obligation to provide patrol services and indemnify FedEx, 

### and signed findings offact and conclusions of

### law. 4

[he findmgs offact md conclusions oflass nelude, in relevant part, the Ibilowing: FINDINGS OF FA(”F

0 etistire the protection 01 property at the I erntinal against thell. the Contract states and Smtth anteed that Smith’s ‘1 tiard pcrsorttei shall itt lake regularly scltediileil tours ofthe prentises,’’ Sttnth agreed to reqnire its secnrttv ntiartl ott dots to ‘‘j rleport sits- nnuisual incidents or hta,ardotis conditions as soon as practicable to represcni.itis es desiuttated by FedExI.” Stntth also agreed to “j plermit only dnly authorized persons to enter the prentises.” 5, Diirmg rcOttlar antI irregular meetings with Smiths niattagers, Fedtx designated represetttatives that should be contacted b’ Stntth to report utitusual incidents. In May and June 2005, those representatives were Terminal N l,tnager lIen Sitttg, Operations Manager Lynn Ni oore. and Dock Manager Brandon Bode. 6 Duritti, mc ttnys ss tth Smith nt ttsagcrs FedLx s mitt ncrs also tnstructcd Smith s man tgcrs th it Smith 4t trd ssere to conduct tours ofthe premises hChourly when the Terminal was closed and to remain at the gate logging trucks duritig hours when the Terminal Wits open. 8. Based on the observations of its ettsployecs and ott documents it received from Smith, Fedfix reasonably believed that Smith’s guards were pertdrming regular patrols ofthe Terminal pt’is’ durittg hours that the Terminal was closed. .\t 4:47 ,-\\h on Stutidas Jutue I. the ‘l’ertninal’s alariut ssstem sounded. 3. .-\ result itug call from the alarm mon it ritig contpans. r\l II’. to the guard shack prompted Smith security guard Josh Sins al to look behind the trailers parked along the tiorth Idnee fr the first time. Suwal discovered durittg that ituspect ott utt approximately 5:111.1 AM Suttdav June. I that a second hole had been cut itt the fence, lie also obsers cil that one rteat’bv trailer had a door ajar and a shippittu pallet wtts disturbed. hut no merchandise was ittissiig. 14. Su\val did not inform his supervisors, arty ofFedEx’s designated representatives, or the police ofhis findings at tins pus mum during or at the eotnplettott of his shift. Nor did tiny other Smith agent or employee inform atmy of FedEx’s designated represetutatives ofSuwal’s findittgs. 15. Sun-al’s atid Smith’s failure to inform anyofFedEx’s designated representatives ofthe unusual incident constituted a breach ofthe Cotutract by Smith. 17. Susval went off duty at 7:011 Sumiday moming, June 1 1 8. Sun al returned late itt the same evetti tug, Sundutv, June 1 for another overnight shift. 19. Suwah dtd not inspect the fetuce. patrol the dock or perimeter fetuce. or leave the guard shack at any time during his eight—hour shift ututiI 7:00 .\M ott Monday. June 2. 20. Stuwth’s failure to patrol the terminal’s premtses during his overnight shift from 11:00 PM on June ito 7:00 AM ott Juuie 7 cottstututcd a breach ofthe Contract by Smith. 21. Between midnight atud 4.30 on the morning ofMonday, June 2, thieves entered the Terminal yard undetected anti broke into fotir trtilers by cutting the locks with bolt cutters. While in the Terminal yard, the thieves were able to steal a large quatutity ofelectrottics undetected. 22. Smith’s fiulure to prevent unauthorized persons from entering the ‘i’enatinal’s premises duritug Josh Suwal’s overnight shift from 11:00 PM on June 1 to 7:00 AM on June 2 constituted a breach ofthe Contract. 24. Smith failed to conduct regulutrly scheduled patrols ofthe Terminal premises as reqtnred under the Cotutraet.

--6--

### The findings and conclusions concerning Smiths failure to (a) patrol regularly, (b) report

25. Smith’s failure to perkirm these patrols was a breach ofthe Contract by Smith, 26. lad Smith guards performed the patrols required under the Contract, the theft would have been prevented. 27. No acts or omissions by Fcdbx or tts employees or agents caused the theft to be successful, 29. Fcdfix first learned of Smith’s contractual breach of flu hog to conduct patrols on or about June 4. 2008. Smith informed its on—site supervisorand guards that they were toconduct fourpatrolsduringeach eight—hourshiftdnring hours that the ‘I’crminal was closed. 30 Dui in,, the overni,,ht shift from June 4 2008 the Smith ,,u std did not conduct ins p ittols md l’cdh x experienced another break-in at the Terminal, 31. Smiths failure to cortduct patrols on the night ofJune 4—5 svas a breach ofthe Contract by Smith. 32. On October I, 2008, Fedbx’s general counsel

... prescnt[edl Fedfix’s claim to Smith and demandFcdj p:iylfleist for FedEx’s losses, Smith did not tender the just amount owed withirt thirty (30) days. 33. Smith’s refusal to indemnify FedEx for its losses, despite notice and demand, constituted a breach ofthe Contract nit the part of Smith. 34. Fcdfix suffered damages in the amount of$108,398.52 that were caused by Smith’s contractual breaches, 36. The Court does not find thtat FedEx failed to act reasonably to avoid the damages it incurred asa result of Smiths breaches: instead, the Court finds FedEx acted reasonably. CONCLUSIONS OF LAW 4.

. . . Smith’s fiulure to conduct [regularly scheduled tours ofthe premisesi constitutes a breach ofthe Contract, 5. After discovering that a hole had been cut in the fence and a nearby trailer had beets opened on the morning ofJune .2008, Smith’s security guard Josh Suwal did not notify a Fedbx designated representative oftlte fence cut, which constituted an unusual incident, Such failure constitutes a breach ofthe Contract, 6. Smith’s conduct permitted unauthorized persons to enter the Terminal and thereby breached the Contract. 7. Smith agreed, under the terms ofthe Contract, to “indemnify, defend and hold harmless [FedEx] from all losses irisine out of propelty dsnssges clunis sutts dim c’, expenses or Ii ibulthes unsung out ofor connected tn any way with [Smith’sI operations performed on behalfofFedEx1.” Smith’s refusal to indetnnify FedEs,after notice and demand, constituted a breach ofthe Contract. 8. As a result ofStiith’s breaches, FedEx did not receive the benefit ofits bargain with Smith, and Smith’s breaches ofthe Contract were the legal causes ofFedEx’s damages. 18. The doctrine ofmitigation ofdamages prevents a party from recovering for damages resulting from a breach of contract that could be avoided by reasonable efforts on the part ofthe plaintiff. Where a party is entitled to benefits ofa contract and can save itselffrom the damages resulting from the contract’s breach with reasonable exertions, it is that party’s duty to make such exertions. E.G., Walkers. Salt Flat WaterCo., 96 S.W.2d 231,232 (Tex. 1936). However. whcrc the party in default was in duty bound to prevent damages, and had equal opportunity with the person injured for performance. and equal knowledge ofthe consequences ofnonperformance. he cannot, while the contract is in force and effect, be heard to say that the plaintiffmight have performed for him, and thus avoided such damages. Id. 19. “The mitigation-of-damages doctrine requires an injured party, following a breach, to exercise reasonable care to minimize his damages ifit can be done svith slight expense and reasonable effort.” Montgomery v. Byrd. No. 14- 07-010l5-CV, 2009 Tex, App. LEXIS 6635, at 26 (Tea. App—Houston [14th Dist.1 Aug. 25, 2009) (not designated for publication). Because an injured party does not incur damages that can be mitigated until after the breach has occurred, it is onlyrequired to undertake its mitigation efforts “following a breach,” Montgomery, 2009 Tex, App. LEXIS 6635, at 26: Allen v. American Gen. Fin, Inc., 251 S.W.3d 676, 686 (Tex. App—San Antonio 2007, pet. granted). 21. FedEx did not fail to exercise reasonable care to minimize its damages. Smith was duty bound to prevent damages to FedEx, and it had equal opportunity with FedEx for performance and equal knowledge ofthe consequences of nonperformance. Smith has not established its affirmative defense offailure to mitigate damages.

—7—unusual incidents to dcsinated Eedhx representatives. (c) prevent unauthorized persons from entering the premises. and (d) establish its atlirmative defense ofmitigation ofdamages form the basis of this appeaL Specifically, Smith challenges findings 5, 6. 8. 15. 20. 22, 24, 25, 26, 27. 29, 31, 32, 34,36 and conclusions 4, 5, 6, 8. 9, 18, 19, and 21. Smith asserts the evidence is legally and factually insufficient to support these findings and the conclusions are incorrect. II. STANDARD OF REVIEW A. Findings of Fact In an appeal from a bench trial, the trial court’s findings offact have the same weight asjury findings. Walker v. -1iu1ei’son, 232 S.W.3d 899. 907 (Tex. App. DaHas 2007, no pet.). Unchallenged findings are binding on the parties and appellate court. Rich v. Olah, 274 S.W.3d 878, 884 (Tex. App.--Dallas 2008, no pet.). Challenged findings are reviewed under the same legal and factual sufficiency standards used in reviewing jury findings. Walker, 232 S.W.3d at 907. Because the trial court, like the jury, is the sole fudge ofthe credibility ofthe witnesses and the weight to be given to the testimony, the trial court’s factual determinations are given deference. Rich. 274 S.W.3d at 884. In determining whether the evidence is legally sufficient, the appellate court views the evidence in the light most favorable to the finding, crediting favorable evidence ifa reasonable factfinder could and disregarding contrary evidence unless a reasonable fact-finder could not. Aland
v. Martin. 271 S.W.3d 424, 429 (Tex. App.—Dallas 2008, no pet.). Ifthe challenged finding is on
an issue for which the appellant did not have the burden ofproof the appellant must demonstrate
no evidence exists to support the adverse finding. Id. Ifthe challenged finding is on an issue for which the appellant had the burden of proof the appellant must demonstrate that the evidence conclusively establishes the opposite finding. R.i Suarez Enters. Inc. v. PNYXL.P., 380 S.W.3d

### 238,245 

### (rex. App.—Dallas 2012, no pet.). Indeterminingwhethertheevidenceis factuallysufficient,theappellatecourt

### considersand weighs alltheevidence, bothforandagainstthe finding. kit In challengingthe factual sufficiency ofthe evidence to support a finding on which the 

### appellant had the 

### burden, the 

### appellant must 

### demonstrateon

### appealthatthe adverse

### finding is 

### againstthe

### greatweightand

### preponderanceofthe 

### evidence. ii 

### Inchallengingthe factual 

### sufficiency ofthe evidenceto supportafindingon 

### which the appellant did not have the

### burden, the 

### appellantmustdemonstrate the evidence supportingthe finding is so 

### weak as to be clearlywrong and

### unjust. THiofTa atLubbock!, LLCv. Perea, 329 S.W.3d 548, 572 (rex. App.—Amarillo 2010, pet. 

### denied). Under both the legal and factual sufficiency standards, when the trial court finds a single cause ofaction is supported by multiple bases, an appellate courtwill affirm ifthe evidence supports any ofthe 

### findings. SeeMain Place CustomHomes, Inc. i’. 

### Honaker, 192 S.W.3d604,623 (rex. App.—FortWorth, 2006, pet. denied). B. Stipulated Facts Stipulated facts are 

### binding on the parties, the trial court, and the reviewing court. Wells FargoBankNw., N.A. v. RPKCapitalXvL LLC, 

### 360 S.W.3d691,698 (rex. App.—Dallas2012,
no pet). An appellate court does not review the legal or factual sufficiency ofthe evidence of stipulated facts. Id. 

### C. Conclusions ofLaw 

### An appellate courtreviews a trial court’s conclusions oflaw de novo, evaluating them to 

### determine whether the trial 

### court correctly drew the 

### legal conclusions from the 

### stipulated or contested facts. Suarez, 380 S.W.3d at 245; RPK Capital, 360 S.W.3d 698. The 

### trial court’s conclusions oflaw will be upheld ifany legal 

### theory supported by the evidence can sustain the 

### judgment. Fulgham v. Fischer, 349 S.W.3d 153, 158 (rex. App.—Dallas 2011, no pet).



### -9-HI. APPLICABLE LAW A. Breach of Contract A breach ot contract occurs when a party tnls to perform an act it has expressly or impliedly promised to perform. Ifark/wide Asset Pzin/usiiig, L. L. C v. ReniA-( ‘enter L. Inc. 290 S.W.3d 554. 561 (Tex. App—-Dallas 2009. no pet.). The elements ota breach of contract claim are: (a) the existence of a valid contract; (b) the plaintiffs performance or tentative performance; (c) the defendant’s breach: and, (d) damage to the plaintiffresulting from the breach. Id. When construing
a written contract, the appellate court’s primary duty is to ascertain and give effect to the intentions the parties have objectively expressed in the instrument. Lexis v. Foxn’orili, 170 S.W.3d 900, 903 (Tex. App.—Dallas 2005, no pet.). The appellate court may neither rewrite the contract nor add to its language. but must enforce it as written. Id. B. Mitigation of I)aniagcs The doctrine of mitigation ofdamages generally prevents an in)ured party from recovering breach of contract damages that could he avoided by the injured party’s reasonable efforts upon learning ofthe breach. GreatAm. ins. Co. v. N. Austin Mun. Util. Dist. No. 1, 908 S.W.2d 415, 426 (Tex. 1995); Pulaski Bank & Trust Co. v. Tex. Am. Bank/Fort Worth, I’/A., 759 S.W.2d 723, 735 (Tex. App.—-Dallas 1988, writ denied). However, when the defaulting party is duty bound to prevent damages. and has the same opportunity to mitigate as the injured party and equal knowledge ofthe consequences of not doing so, the defaulting party cannot complain of the injured party’s failure to mitigate. Walker v. Salt Flat Water Co., 96 S.W.2d 231, 232 (Tex. 1936); Trinity Universal ins. (‘o. v. Fuller, 524 S.W.2d 335, 338 (Tex. Civ. App.—Dallas 1975, writ refdn.r.e.). Mitigation ofdamages is an affirmative defense the breachingpartymust plead andprove. GreatAm. ins., 908 S.W.2d at 426; S & G Associated Developers, LLC v. Covington Oaks Condo. Owners

10—

### .4ss’n. Inc. 361 S.W.3d 210. 2l7(Tex. App.-•--EI Paso 2012. no pet.). 

### IV. APPL1CATION OF THE LAW TO THE FACTS 

### A. Breach ofContract Becauseoftheparties’ stipulations, the

### onlyelementofFedEx’sbreach ofcontractclaimat issue is Smith’s breach. See Worldwide Assel. 

### 209 S.W.3d at 561. FedEx alleged at trial, and the 

### trial court found and concluded, that Smith breached the contractby failing to (a) conduct regular 

### patrols ofthe 

### premises, (b) notifyadesignated FedEx representative oftheJune 1, 2008 knee cut, (c) prevent unauthorized 

### persons from entering the 

### tenninal, and (d) 

### indemnify FedEx. Smith challengesthe firstthreeofthesebreaches foundbythetrialcourtandalso asserts thecontract “was 

### only for the protection ofthe 

### property ofFedEx” and thus Smith is not responsible fir FedEx’s losses. However, Smithdoesnotchallengethefindingandconclusion pertainingtoindemnification 

### (finding 33 andconclusion7). Becausean

### unchallengedfinding isbindingonthe

### parties andcourt, and a finding that Smith failedto

### perform at least one obligation underthe contractis sufficientto supportthefindingthat Smithbreachedthe contract. Smith’s contentionthatthe trial court

### erredin concluding abreach 

### occurred cannotbe sustained on thisbasis alone. SeeiS: Rich, 

### 274 S.W.3d at 884; Main Place, 

### 192 S.W.3d at 623. Additionally, as FedEx points out, Smith presents no 

### argumentorauthorityin

### supportofitschallengetothe

### findingandconclusion

### concerningitsfailure to notify FedEx 

### representatives of the fence cut 

### (findings 5, 14 and 15 and conclusion 5). Accordingly, Smithhas waived any 

### errorwith

### respecttothis portion ofthe

### trial court’s

### judgment, and thejudgment canbe 

### affirmed on this basis also. See Thx. R. An. P. 38.1(i) (“Thebriefmust 

### contain a clear and concise argument for the 

### contentions made, with appropriate citations to authorities and to the record.”); Fuigham, 

### 349 S.W.3d at 158 (“failure to cite legal authority 

### or provide substantive analysis 

### results in waiver 

### ofthe 

### complaint”). Nonetheless, we address the

—11—-

### merits ofSmith’s remaining arguments. Toprevail on its complaintthatthe trial courterred in concludingabreach occurred. Smith mustdemonstratetheevidenceis legallyandfactuallyinsufficienttosupportthecourt’s findingsthat itfailedtoconductregularpatrols andpreventunauthorizedpersons fromenteringtheterminal, and the trial court erred in concluding these failures constitute a breach. Because Smith challenges

issues 

### which FedEx bore the burden of proving at trial, to establish the evidence is legally insufficient. Smith mustdemonstrate no evidence exists to supportthese findings. SeeAland, 271 S.W.3d at 429. To establish the evidence is factually insufficient. Smith must demonstrate the evidence supporting the findings are soweakastobe clearlywrong andunjust. Perea, 329 S.W.3d at 572. Smithcontendstheevidenceisinsufficientto supportthefindingsregardingpatrols(findings 6,8,20,24,25,26,31) becausenoevidenceexiststhatSmithagreedtobi-hourlypatrols “being part 

### ofthe original contract” orthat the parties modified the guards’ duties. In making this argument, Smithdoes notchallengethetrial court’s findingthatthecontractprovides forregularly scheduled patrols (finding 2). Instead, Smith argues that because, at the time the contract was 

### executed, its guards were 

### expected to ‘just man 

### the gate,” FedEx was required top1 that the contract was 

### modifiedanddemonstratethemodification. Smithcontendstheonlyevidenceofamodificationwas Sittig’s testimony that the guards were expected to patrol every two 

### hours once the tenninal’s operating hours were 

### reduced, that he communicated this to Smith managers at the time ofthe change and at quarterlymeetings, and that Smith managers agreed to perform the patrols. Smith contends Sittig’s testimony is not credible because he did not testify at his deposition about the quarterlymeetings andhe didnot identifythe Smithmanagers withwhomhe communicated. Because Smith does notchallengethetrial court’s findingthat Smith specificallyagreedto

—12—

### “[mjake regularly scheduled tours ofthe premises,” it is binding on the parties and court and makes pleading and evidence of modification unnecessary. See Rich, 

### 274 S.W.3d at 884. Moreover, although Smith discounts Sittig’s testimony, the trial court assigns the weight to be given to Sittig’s testimony. See 

### id, By finding Smith failed to conduct regular patrols, the trial court necessarily believed Sittig’s testimony, a determination we will not disturb on appeal. See id. 

### Additionally, the record includes evidence otherthan Sittig’s testimony concerning thepatrols andthe communication with Smith. Both Santos Gracia, a Smith “post supervisor,” and FedEx operations managerLindsay Moore agreed thatthe guards were requiredto conductregularpatrols when the terminal was closed, and documentary evidence reflected bihourly patrols were conducted. Viewed under the appropriate standards, we conclude the evidence is legally and factually sufficient to support the findings concerning the patrols. Because those findings include a finding that Smith did not patrol the premises regularly, we conclude the trial court correctly determined Smith breached the contract by failing to conduct regularpatrols. See Suarez, 380 S.W,3d at 245; Worldwide Asset, 

### 290 S.W.3d at 561. 

### We next address Smith’s contention that the trial court erred in concluding Smith breached the contract by allowing unauthorized persons to enter the property. Smith argues the evidence is legally and factually insufficient to support the findings regarding entry ofthe property because the provision in the contractthat Smith was to “[pjermit only authorized persons to enterthe premises” required only that Smith “insure[] that the access to the premises by visitors and employees was monitored and restricted.” Smith further argues that the term “permit” requires an element of knowledge on the part ofthe actor, and FedEx failed to present any evidence that any ofSmith’s guards knowingly permitted any unauthorized person to access the premises. However, the term “knowingly” is not in the contract. “We may neither rewrite the contract nor add to its language.”

1 i—,Sec I ()xworth, I 70 SW.3d at 903, Additionally. Smith does not challenge the findings that its tuard. Joshua Suwal. worked an overnight shi It Jtine 1 and that thieves entered the terminal and broke into four trailers between midnight and 4:30 the morning ofJune 2 (findings 18 and 21). These Ondings are binding and support the trial court’s conclusion that Smith breached the contract by allowing unauthorized persons to enter the property. Finally, we address Smith’s contention that the contract was only for the protection of Fedhx’s property. In making this contention, Smith relies on the fact that FedEx had an alarm system on the perimeter fence, but Smith was not responsible for monitoring it. Smith argues that ifit had “been hired to protect’ property other than that ofFedEx, 

### [iti would presumably have had
an active role in monitoring the fence alarm from the beginning.” ‘This challenge to causation and damages cannot he sustained because Smith does not challenge the findings and conclusions regarding indemnification. According to the language ofthe indemnity provision, it encompassed “all losses arising out of... claims,

... damages, expenses or liabilities arising out ofor connected in any way with 

### I Smith’s] operations performed on behalfof [FedEx].” There is no limitation to FedEx’s property. Further, Smith stipulated that FedEx’s damages were caused bythe theft, and the theft occurred while a Smith guard was on duty. This stipulation is binding. RFK Capital, 360 S.W.3d at 698. We conclude the trial court did not err in finding a material breach occurred. Accordingly,
we resolve Smith’s first issue against it. B. Mitigation of Damages In its second issue, Smith asserts the evidence is legally and factually insufficient to support the trial court’s finding and conclusions that FedEx did not fail to exercise reasonable care to minimize its damages, Smith was duty bound to prevent damages to FedEx, Smith had the same

14—opportunity with FedEx to minimize the damages, Smith had equal knowledge ofthe consequences of failing to do so, and Smith failed to establish its defense ofmitigation (finding 27 and 36 and conclusions 18, 19, 21). Because it bore the burden of establishing this affirmative defense, to establish the evidence is legally insufficient, Smith must demonstrate the evidence conclusively establishes the opposite finding. See Aland, 271 SW.3d at 429. To establish the evidence is factually insufficient, Smith must demonstrate thatthe court’s finding is against the great weight and preponderance ofthe evidence. See Suarez, 380 S.W.3d at 245. Smith asserts the evidence reflects that, at the latest, FedEx became aware ofSmith’s failure to regularly patrol on May 30 when FedEx learned ofthe first cut in the fence. Smith contends FedEx should have informed Smith managers ofthe first cut “such that Smith could have taken any action to insure that fence patrols were conducted the evening ofthe actual theft.” Smith asserts further that Sittig’s and Burn’s testimony about “what could, and should have been done upon theY discovery of both the first cut

... [and] second cut” demonstrates FedEx was obligated to take reasonable steps to mitigate its damages. Finally, Smith argues that the trial court erroneouslyrelied
on the holding in Walker v. Salt Flat Water C’o. that the defaulting party is barred from relying on the doctrine of mitigation ofdamages when it could have prevented the harm. See Walker, 96 S.W.2d at 232. We disagree with Smith’s contentions. FedEx’s duty to mitigate did not arise until it became aware that Smith guards were not patrolling regularly. Pulaski, 759 S.W.3d at 735. Although Smith contends FedEx became aware ofthis failure, atthe latest, when FedEx learned ofthe first cut in the fence, the trial court found, and Smith does not challenge, that FedEx first learned ofthe lack ofregular patrols “on or about June 4, 2008.” This finding is binding. Rich, 274 S.W.3d at 884. Moreover, the record reflects Smith
was contractually obligatedto guard againstdamage to property: had, as aproviderofguard services,

—15—the same opportunity as, ifnot greater than, FedEx to minimize damages resulting from a theft; and had the same knowledge as FedEx ofthe consequences offailing to minimize damages, as evidenced by the indemnificationprovision. Smith has cited to us no evidence to the contrary and wecould find
none. Given the applicable legal standards, we conclude that Smith could not complain that FedEx
was required to minimize its damages. and the trial court did not err in concluding Smith failed to establish its defense ofmitigation. See Fulgham, 349 S.W.3d at 158, We resolve Smith’s second issue against it. V. CONCLUSION Having resolved both ofSmith’s issues against it, weffirm the trial court’sjudgment.

QôLAS.&G’7 JUSTICE/ 1 10715F.P05

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## Qniirt uf Apprahi FiftI! Jitrirt nf .Eixa at JaI1a JUDGMENT SMITH PROTECTIVE SERVICES. INC., Appellant No. 05-1 l-00715-CV V Appeal from the 95th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. DC-08- 13718-D). Opinion delivered by Justice Lang, Justices Bridges and Richter participating. FEDEX NATIONAL LTL, INC., Appellee In accordance with this Court’s opinion ofthis date, we AFFIRI’I the trial court’s judgment. We ORDFR that appellee Fedex National LTL, Inc. recover its costs ofthis appeal from appellant Smith Protective Services, Inc.
Judgment entered January 23, 2013


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