NO. 07-02-0210-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL C JANUARY

16, 2004

______________________________ JIMMY MAY, APPELLANT

V. BARTON’S PUM P SERVICE, IN C., APPELLEE

_________________________________ FROM THE 72 ND DISTRIC T COURT O F LUBBOCK COUNTY; NO. 2000-510,319; HONORABLE J . BLAIR CHER RY, JUD GE

_______________________________ Before JOHNSON, C.J., and QUINN and REAV IS, JJ. OPINION Jimmy May appeal s from a judgment aga inst him for the a mount due on a contract for services and materials. By 11 iss ues he challeng es the (1) l egal and factual sufficiency of the evidenc e, (2) tri al court’s refusal to allow an exp ert wit ness to t esti fy and (3) tri al court ’s re fusal to submi t a pro posed j ury instr uctio n. We affirm.1 T EX . B US . & C OMM . C ODE A NN . § 17.45 et.seq . (Vernon 2 0 02). Reference to a

provisi on of

the Code hereafter will b e by referenceto “the deceptive trade practi ces act” or “TB&CC § _.” 2 BACKGROUND In 1999 and for some years prior to that time, appella nt Jimmy May owned approximately 68.49 acres of lan d southwest of the City of Lubbo ck. He formulated a plan to subdividethe acreage in to commercial a nd residential lots and sell them. As part of his development

plan, May

sought to convert an old irr igation w ell on the prop erty to a w ater source for a privately owned public water supply system (the water system) which would serve the subdivi sion lots. May was a professional engineer and developed aplan for the water system w hich he submitted to the Texas N atural Resou rce Con servation Commission (TNRCC) for approval. He also took a copy of his w ater system drawing to appellee Barton’s Pump Service, Inc. May and Dale Barton, one of the principa l owners of Barton’s, ag reed that

Barton’s would perform work on the irrigation well which Barton’s did. The result

was not to May’s s atisfaction and M ay did not pay Barton’s bi ll. Maysue d Barton’s al leging v arious theori es of liabili ty, incl uding vi olation of th e Texa s Dece ptive Trade Practices Act, 1 breach of contrac t, breach of impli ed warrant y of good workmanshi p, neglig ent misrepres entation and negl igence. The ba ses f or May’s claim s were that after Barton’s worked on the well, the well did not co mply wi th TNRCC requirements

for a public w

ater supply sy

stem, the wel l was damaged and the w ell’s water production was severel y decreased

. Barton’s denied liability and counterclaim ed to recover its unpaid bill.3

The evidence conflicted sharply as to what Ma y and Dale Barton agreed to. May contended that the agreement was for Barton ’s t o ( 1) modify the irrigation well in accordance with May’s schematic drawing, (2) bring the well into compliance with TNRCC regulations, and (3) concrete the outside of the 16" well casing from t he surface to the top of the water b earing f ormati on. IfBarton’ s had do ne so as a gr eed, May conten ded, the amount of water produced by the well woul d not have been reduced an d the well would have suppli ed May’s planned privately-ow ned public water system. Barton’s maintained that it prope rly performed the work itagreed to do and for which itbilled M ay . Bart on’s deni ed th at it agree d to p erf orm wo rk as c onte nde d by Ma y, including bringing the well into compliance with TNRCC regulations. Barton’s asserted that itagreed to do t he work des cribed in a w ritten esti mate dated December 27, 1999. That work only inc luded ins e rting an 8" PVC liner i nside the ex isting 16" well cas ing, placi ng gravel between the l iner and the 16" casing, and placing a concrete cap on the well site. May’s modi fication plan did not incl ude inserting a liner into the existing well casing, placing gravel inside the ex isting c asing, and mer ely placi ng a concrete cap on the well at the surface. The case was submitted to a ju ry by 18 questions. The jury effectiv ely found that May and Dale Barton agreed as B arton’s contend ed, and not as May conte nded. By its answers to JuryQuestions, the jury failed to find that Ba rton’s: (Q uestion 1) eng aged in a misl ead ing or dece ptive act or practice on which May rel ied to May ’s damage; ( Question 2) engaged in an unconscionable action or co urse of action which was a producing cause4

of dam ages to May; (Question 3) failed to comply

with a w arranty w hich was a producing cause of damages to May; (Question 5) agreed with May that Barton’s would follow May’s drawing, bring the well into complianc e with TNR CC regul ations and concr ete the outside of the 16" well casing from t he surface to the top of the water bearing formation; (Question 15) made a neglige nt misreprese ntation on which M ay justi fiably rel ied; and (Quest ion 16) actions were negligence and a proxim ate cause of the damages. In response to othe r questions, t he jury found ( Question 10) Bar ton’s and May

agreed that Barton’swould do work on May’s

well as described in Barton’sestimate dated D ecember 27, 1999 and t hat May would pay

the reasonable c harges for suc h work; ( Question 11) M ay failed to comply with the agreement r

eferenced in Questi on 10; (Qu estion 13) Barton’s damages were $5,533.83; (Question 14) attorney’ s fees for Barton’s were $23,000 for pre paration and trial, $7,50 0 for appeal to the Cou rt of Appeals and $5, 000 for appeal to th e Supre m e Court of Texas; and (Qu estion 16) M ay’s neg ligence w as a proxi mate cause of the damages. The j ury als o fa iled to f ind t hat M ay’s f ailu re to comp ly w ith the agr ee ment between Barton’s and May was excused (Questi on 12). May challenges (1) the factual suf ficiency of the evidence to supp ort the jury’s answ ers aga inst him on his theories of li ability and contractual excuse ( Questions 1,2,3,5,12,15 ,16); (2) both the legal and factu al sufficiency of the evidence to support the jury’s answers in favor of Barton’s theor

y of liabil ity (Ques tions 10,11,16); (3) the legal a nd factual sufficiency of theevidence as to Barton’s a ttorney’s

fees for appeal to the Court of Appeals and the Supreme Court of Texas (Quest ion 14); (4) the trial court’s ex clusion of May’s expert w itness Tucker Rudder; and (5) the trial court’s refusal to submit a pro posed5

instruction as to exc use for May’s failure to comply with the agreement subm itted via Question 10. We will address the i ssues, in g eneral, as they are grouped by May

. ISSUES ONE, TW O AND THREE - FACTUAL INSUFFICIENCY Issu es on e, two and three assert that the jury ’s negative answersto certain of the Jury Qu estions on which May had the burden of proo f are against the great weig ht an d preponderance of the evidence. Issue one cha llenges the jury’s refusal to find, in respon se to Questions 1, 2 and 3 that Barton’s v iolated the decept ive tradeprac tice s act . Issu e two addresses the jury’s

negativ e answer to Question 12, w hich presented May’s pos ition that Barton’s made a false repres entation to induc e May toenter into an ag reement in the first instance. Issue three presents the s ame assertion tothe jury ’s failure to find, in response to Question 15, that Barton ’s made a neglig ent misrepres entation. Such challenges are factual sufficiency challenges to adverse jury answers to questions on which the challengin g party had t he burden of proof. See Chan g v. Nguyen , 76 S.W.3d 635, 637 n.1 (Tex.App.-- Houston (14 th Dist.) 200 2, no p e t.); W. W endell Hall , Standards of Review in Texas , 29 St. Mary’s L.J. 351, 487 (1998). Wh en considering factual suf ficiency challenges to a jury's verdic t, courts o f appeals must con sider an d weigh all of the evidenc e, not just ev idence whi ch supports the verdict. See Maritime Overseas Corp. v. Ellis , 971 S.W.2d 402, 406- 07 (T ex. 1998); Ortiz v. Jones , 917 S.W.2d 770, 772 (Tex. 1996); Lofton v. Texas Brine Corp ., 720 S.W.2d 804,6

805 (Tex. 1986). A court of appea ls can set aside the verdict only if it is so contraryto the overw helming weight

of the evidence that the ver dict is cl ear ly w rong and unjus t. See Mari time O verseas Corp. , 971 S.W.2d at 407; Cain v. Bain , 709 S.W .2d 1 75, 1 76 (T ex. 1986). The factfinder is the sole judge of the credibil ity of the witnes ses and the weight to be given their t estimon y. See Leyva v. Pacheco , 163 Tex. 638, 358 S.W.2d 547, 549 (1962). The fac tfinder may believe one witnes s and disbeli eve another, and resolves inconsistenc ies in testimony

. See McGalliar d v. Kuhlmann , 722 S.W.2d 694, 697 (Te x. 1986). W here en ough evidence i s before the factfinder t hat reasonable mi nds could differ on the meaning of the evide nce, or the infe renc es an d con clus ions to be drawn from the evidence, we ma y not substi tute our judg ment for that of the factfinder. See Herb ert v. Herbert , 754 S.W .2d 141, 144 (Tex. 1988 ). Wh en the jury did not find a fact based upon a preponderance of the evidence, we may not reverse mere ly bec ause we conclude that the evidence preponderates tow ard a different answ

er. Id

. In arguing hi s issues, May recites s ubstantial dir ect and circ umstantial ev idence both affir mat ively

supporting his positi on and impeaching Barton’s posi tion. Barton’ s references similar types of evidence that support Barto n’s position that Dale Barton did not make the misrepresentat ions alleg ed by May

. In order to rea ch a verdi ct, the jury had to reconcile the numerous significant direct conflicts in evidence. Assumin g, arguendo , that May’ s contentions an d conclusionsseem more probable t han those a dvanced by Barton’s and found by the jury, we are7

unauthorized to overturn a jury verdict so dependent on the jur y’s res olution of credi bility of the wit nesses a nd conflicting evidence as is this v erdict. See id . W e overrule May’s issues one, tw

o and three. ISSUES FOUR, FIVE AND SIX: EVIDENTIARY

SUPPORT FOR THE CONTRACTUA L FINDINGS Issue five urg es a factu al suff iciency cha llenge to the jury ’s negative finding on the question subm itt ing May ’s vers ion of th e agreement reached by May and Barton’s (Question 5). Issue four challenges

the legal a nd factual evidentiary support for the jury’s finding that the agr

eement reached between May and Bar ton’s wasthe agreement t estified to by Dal e Barton (Question 10). Issue six asserts both legal and f actual sufficiency challengesto the jury’s finding that May failed to comply with the agreement the j ury found had been reached be tween May and Barton’s (Question 11). When both legal and factual suf ficiency issues are rais ed, we rev iew the l egal sufficiency point first to determine whether there is any probati ve evi dence to support the jury's verdict

. See Glover v . Texas Gen. In dem. Co. , 619 S.W.2d 400, 40 1 (Tex. 1981). In conducting a review

for legal sufficiency, we consider the evidence in a light t hat tends to support the findi ng of the disputed facts and disreg ard all ev idence and inferenc es to the cont rary. See Lee Lewis C onst., Inc. v . Harris on , 70 S.W.3d 778, 782 (Tex. 20 01) ; Bradfor d v. Vento , 48 S.W .3d 749, 754 (Tex. 2001 ). If more than a scintilla of evidence exists, the evidenc e is legal ly sufficient. Lee Lewis Constr., Inc. , 70 S.W.3d at 782 . More8

than a scintil la of evidence exists i f the evidence furn ishes some reas onab le basis for differing concl usions by reasonable mindsabout a vital fact's ex istence. Id . at 782-83. We have set out the standard of review for f actual suf

ficiency i ssues in our consideration of May’s i ssues one, tw o and three. In advancing issue five, May ci tes evidenc e that his v ersion of the ag reement, as submitted in Jury

Question five, was supported by a detailed dra wing, was speci fic as to terms, and was mor

e in agreement with the physical evidence at the well site than was th e agreement

Barton’s claimed. May points out

that the agr

eement Barton’s c laimed exis ted, as submitted in Jury

Question ten, was based on a written estimate which did not contain all the terms Dal e Barton testified to, but which merely set out prices for gravel, pipe and concrete. May also directs our attention to Dale Barton’s testimon y to the effect thatMay reputedly told Dale Barton to “Just do the best you can.”, an d “W ell, let’s try it.”, in response to Dale Barton’s statement that rew orking an o ld irrig ation well such as the one in question was a difficult proposition, an d that Dale Barton proposed reworking the well by a process of ins erting an 8" pipe into the 16" casing and putt ing gra vel between the 8" pipe and the 1 6" casin g. May further urges that whether he received a copy of Barton’s written estimate, and if so, when, was a hotly disputed matter. Barton’s asserts that

the above-r

eferenced statements by May were in the c onte xt of respons es to Dale Barton’ s having t old May t hat the design pr esented by M ay was flawed, and that Dale Barton’s alternative as represen ted by the written estimate was a counter-offe r. Barton’s posits t hat Ma y’s stat ements were actually the acceptance of9

Barton’s counter-o ffer and thus eviden ced the necessar y “meeting of the minds” for an agreement. As we ha ve referenced in our disc ussion of May ’s first thr ee issues, the jury had before it testimony

and other ev idence of

communications be tween the par ties and actions of the parties i n connection with those communication s. The jury was instructed that such evidence cou ld be consider ed in deciding if the parties reached an agreement. The jury was further instr ucted that in order for the par ties to form a bin ding contra ct, the parti es must have had a mutua l assent or “meet ing o f the minds” on the essential ter ms of the contract. See Cope land v. Alsobrook , 3 S.W.3d 598, 604 (Tex.App.- -San Antonio 1999, pet. denied). D ale Barton ’s testimony and the December 27 th writte n estimate are l egally and factually sufficient evidence to sup port the jury ’s find ing i n response to Que stion 10 that the agreement bet

wee n May and Bar

ton’s wasas urged by Barton’s. See Lee Lewis Const., Inc. , 70 S.W.3d at 782 -83; Herbert , 754 S.W.2d at 144. Moreover, although Dale Barton’s testimony as to his rejection of M ay’s prop osed mann e r of reworki ng the wel l and Barton’s counteroffer as ex pressed in the written estimate may not hav e been a s detailed, clear and free f rom inconsistencies as May’s test imon y, the jury ’s refusal to fin d that Barton’sagreed to the contractual t erms advanced by May and presented in Q uestion 5 was not so agai nst the great weight and preponderance of the evidence as to war rant rever sal. See Maritime Overseas Corp. , 971 S.W.2d at 407

.10

Last ly, May does n ot dispute that hedid not pay Barton’s for the work on the well; his position was and is that h e did not ow e for t he work because the work Barton’s performed was not thework M ay agreed on. The jury’s finding that May failed to comply with Barton’s version of the ag reement, whi ch the jury found May

agreed to, w

as consistent with its othe r answers i n favor of Barton’ s position and adverse to May’s pos ition. The evidence, part of whic h we hav e previous ly noted, is both legally and factually sufficient to support the jur

y’s answ er to Question 11. We overrule issues four, five and six

.

ISSUES SEVEN AND EIGHT: NEGLIGENCE May’s issues seven a nd eight challenge the jury’s answer to Question 16 which asked if the neglig ence of May or Barton’s pr

oximately

caused “the d amage s.” The jury answered “Yes” as toMay and “ No” as to Barton’s. May arg ues via i ssue seven t hat the “Yes” answer w

as based on legally

and factually

insufficient

evidence, a nd via is sue eight that the “No”answer w as based on factuall y insufficient evidence. Barton’s responds, in part, to iss ue seven, that regardless of the evidentiary support for the finding that

May was neglig ent, the finding was not material becaus e the jury fail ed to find Barton’s neg ligent, and becaus e ev en i f t he jury had found that May w as not negligent , the j udgm ent wo uld n ot ha ve been different. As to issue eight, Barton’s urges, in part, that B arton’s did n ot breach a duty to May.11

We first address

issue eig ht. May bases his argument on Barton’s lack of familiarity with TNRCC reg ulations and ev idence that the w ell as rew

orked by Barton’s failed to meet TNRCC regulati ons for use as a publ ic water supply. He urgesthat the failure of Barton’s to bring the well i nto compliance w ith TNRCC r egulations w

as failure to meet the standard of care for “an ordinary prudent o perator [sic] such as himself.” The elements of a negl igence causeof action are: (1) a legal duty ; (2) breac h of that d uty; and (3)

damages prox imately r esulting from the breach. See Van H orn v. Chambers , 970 S.W .2d 542, 544 (Tex. 1998 ). Because of May’s claim that Barton’swas negligent , it was incumbent on May to prove t he existence and violati on of a duty owed to him by Barton’ s. See El Chico Corp. v. Poole , 732 S.W.2d 306, 311 (Tex. 1987). If no duty exi sted, there coul d be no neglig ence. See Van Horn , 970 S.W.2d at 544. May does not claim that Barton’s owed a duty to him other

than a duty which arose from the agreement bet ween them. By

its answer to Question 5, the jury fail ed to find that Barton’s agreed to br ing the well into compl iance wi th TNRCC r egulations. The agreement which the jury

found in response to Question 10 (Barton’s version of the agreement) did not in clude an undertaking by Barton’s to bring the well into compliance wit h TNRC C regulations. W e have determined that t he jury’ s answers to both questi ons were s upported by sufficient ev idence. The jury’s

answers do not e s tablish that Ba rton’s owed a duty to M ay to bri ng the well into complianc e w ith T NRCC regulations. Thus, we agree with Barton’s that it breached no duty

to May. See id

.2 Further reference to a r ule of

appellate procedure shall beby reference to “TRAP ____.” 12 We overrul e issue eig ht. Our conclusionsas to issue eight and M ay’s other issues pre ter mits any ne cess ity fo r us to cons ider May’s is sue s even beca use e ven if we sustained the i ssue, the judg ment would not be affected. See T EX . R. A PP . P. 47.1. 2 ISSUE NINE: ATTORNEY’S F EES May’s ninth i ssue c hallenges th e legal and fact ual sufficiency of the evidence to support the jury ’s finding of appel late attorney ’s fees for Barton’ s. In presenting the issue, May references test imony of Barto n’s attorney w hich included an opinion only as to a ttor ney’s fees for preparati on and trial. Barton’s, how ever, counters by r

eferring to testimony

of May’s at

torney w hich included opinions that (1) $7,500 would be a reasonable and necessary

attorney’ s fee for an appeal to theCourt of Appeals, and (2) $5, 000 would be reasonable and necessary attorney’ s fees for

an appeal to the Suprem e Court of Texas. May does not urg e that the tria l court wa s requested to, or did, in any manner limit the jury’s considerati on of his attorney ’s testimony

. See T EX . R. E VID . 105 (a). A ccord ingly, the evidence w

as before the jury

for all purpos es. See Birchfield v

. Texarkana Mem’l. Hosp ., 747 S. W.2d 361, 365, 366 (Tex. 1 987); In re K.S. , 76 S.W .3d 36, 39 (Tex.App.-- Amarillo 2002, no pet.). And, under this record, the testim ony is sufficient evidentiary basis, both legall y and factuall y, to suppor t a finding of appel late attorney’ s fees for either party for an appeal from the t rial court ’s judgment. See Lee Lewis Const., Inc. , 70 S.W.3d at 782 -83; Herbert , 754 S.W.2d at 144. Issue nine is overrul ed.13 ISSUE TEN: EXCLUSION OF EXPERT

TESTIMONY Issue ten asserts error

by the trial court’s exclusion of testimony by Tucker Rudder, a witnessMay cal led. May ’s attorney advised thetrial cour

t t hat Rudder w

ould testify to TNRCC requirement

s, Rudder’sfamiliarity

with suc h requi reme nts, what Rudder would have done had he been contacte d as a driller to rework the well in question, why the well produced the way it had, a nd the feasibili ty of drill ing other w ells in the area. Barton’s objected on the bas is that Rudder was not q ualified to gi ve an opinio n on bringing old irri gation wells up to T NRCC s tandards or the proper method for doi ng so. See Gammill v. Jack W illiams Chevrolet, Inc. , 972 S.W.2d 713 (Tex. 1998). The trial court held a hearing ou tside the jur y’s pres ence to determine the obj ection. Dur ing the hearing, Rudder testified to having considerable experience as a licensed w ater well driller . He was familiar with TNR CC regul ations, but not w ith standards of the American Wat er W orks Association, which were referenced by the TNRCC regulations. He had not reworked an “old” irrigation well to convert it to a well complying with TNRCC regulations for use as a public water supply

. The court sustai ned Barton’s obj ection. May urges that

Rudd er was qu alif ied t o give testimony

on several facets of the m atters at issue, but attributes har m to the excl usion of Rudder’s testimony on ly because the ruling prevented th e jury from h earing q ua lif ied expert testimony

that Barton’s failed to use ordinary care in attem pting to br ing the well into compliance with TNRCC regulations.14

Reversal of a judgment for an error in the exclusion of evidence is war ranted if the error probably caused the renditi on of an improper j udgment, or probably pr evented the appellant from pro perly pr esenting the case to the court of appeals. TRAP 44.1 . A successful challen ge to evidentiaryrulingsusually requiresthe complaining party to s how tha t the judgment turns on the particu lar evi dence exclud ed or admitted. See City of Brownsv il le v. Alvarado , 897 S.W.2d 750, 754 (Tex. 1995). The entire record must be reviewed to determine whether the case turns on the excluded evidence

. Id

. W e must uphold the trial court's evidentiary ruling if there is any legitim ate bas is for th e ruling. See Owens-C orning Fi berglas C orp. v. M alone , 972 S.W.2d 35, 43 (Tex. 1998). We have previously

determined, in considering May’s issue eigh t, that the evidence and jury answers to Questions 5 and 10 failed to establ ish Barton’s undertook to br ing the we ll into co mpliance with TNRCC regulations, and that May did not conten d Barton’s otherwise owed a duty to bring the well into compliance with such regulations. Because Barton’s did not owea duty to br ing the well into compl iance w ith TNRC C regulations, Rudder’s opinion that Barton’s fa ile d to use o rdin ary ca re to do so would not h ave supported a finding that Barton’swas neg ligent. Assumi ng, arguendo , that the trial court erred in excluding Rudder’s testimony, the error was not har mful and did not cause rendi tion of an imp roper judg ment. See TRAP 44.1. Because w

e conclude that ex

clusion of Rudder

’s opinionswas not harmful, we do not address the questions of whether er ror

was pres erved as to

such opinions , see T EX . R. E VID . 103(a)(2) , (b); Fletcher v . Minnesota M in. and Mfg. C o. , 57 S.W.3d 6 02, 60 715

(Te x.App.-- Hous. [1 st Dist.] 2001, pet. denied); or whether th e trial cour t abused its discretion in excludi ng the opinion s. See Gammill , 972 S.W.2d at 718-19. Issue ten is o verruled

. ISSUE ELEVEN: FAILURE TO GIVE JURY INSTRUCTIO N ON EX CUSE F OR BR EACH O F CON TRACT Issue 11 assertserror in the trial court’s refusal to instruct the jury in conjuncti on with JuryQuestion 12 that May’s fail ure to comply w ith the agr eement was excused by Barton’s previousfailure to compl y wi th a material ob ligation o f the same agreement. Question 12, together with an ac companying instruction which M ay does not c hallenge, asked if May’s failure to comply with the agreement between May and Barton’s was excused. The ch arge was str uctured so that the jury was to answ er Question 12 only if

it previ ously found that the parties ag reed to Barton’s version of the ag reement, and that M ay failed to comply w ith that agreement. Atrial co urt's d ecision to s ubmit or refuse a p articular instruction is rev iewed for a buse of discretion. See In re V.L.K. , 2 4 S

. W. 3 d 3 3 8 , 3 4 1 ( Te x . 2 0 0 0 )

. Wh ether a tria l court abuses its discretion by acting without r eference to any g uiding rules and principles, see Craddock v. Sunshine Bus Lines, Inc. , 134 Tex. 388, 133 S.W.2d 124, 126 (1939), is measured by the rul es of procedure, t he substantiv e law and t he require m ent that the parties and the appellate courts be able to tell what the jury answered a nd the bases for its answers. See Crown Life Ins. Co. v . Casteel , 22 S.W.3d 378, 388 (Tex. 2000). When the trial cour

t refuses to submi t a requested instructi on, one question on appeal is whether16

the instructi on was suppor ted by pleading s and evidence. See T EX . R. C IV . P. 278; Elbaor v. Smith , 845 S.W.2d 240, 243 (Tex. 1992). We review the evidenc e under a leg al sufficiency standard to deter mine whether evidence s upported the req ueste d ques tion. See id

. We must revi ew

the entire r

ecord to determi ne whether i t contains leg ally suffici ent evidence to support a c laim that Barto n’s mater iall y breached the agreement which Barton’s claimed was made and whi ch was ev idenced by Ba rton’s Dece mber 27, 1999, written estimate. That was the agreement the jury found was reached between the parties. Dale Barton testifie d thatwhen May came in to discuss reworking the well, he told May that he did not believe the well could be reworked in accordance with May’s drawings; butthat he could pul l the pump from the well, instal l an 8" liner and screen with factory-mill perforations, and try togravel -pack and concrete the well. According to Dale Barton , May responded “Let’s tr

y it.” Dale Barton testified that he explaine d what Barton’s woul d do to the well; w rote the estimate dated December 27, 1999, and gave a cop y to May; M ay agreed to Barton’s p roposal; and Bar ton’s performed the work the two men agreed would be done. May did not claim Barton’s materially breached Barton’ s versi on of the agreement; May clai med the a greem e nt terms advanced by Barton’ s simply never were the agre ement. The jury di sagreed w ith May. May urges, without explanation, that the jury “could have found ” a material breach by Ba rton ’s (1) pl acing an 8" l iner in the w ell, (2) g ravel pac king the w ell, (3) fai ling to3 See, also , our anal ysis of the re cord in rega rd to May’s is sues one t hrou gh six. 17 cementoutside of the 16" casi ng, or (4) usi ng an inadeq uate screen. O ur review

3 of the entire record, however, reveals no evidence that Barton’s did not perform the material parts of the agreement as testified to by Dale Barton a nd found by the jury. The e vidence w as leg all y insu ff icien t to s upp ort su bmis sion of t he in stru ctio n May re ques ted. Accor dingl y, the trial cour

t did not abuse i ts discreti on in ref using to g ive the in struction. See T EX . R. C IV . P. 278; Elbaor , 845 S.W.2d at 243. Issue 11 is overruled. CONCLUSION Having overrul ed May’s 11 issues, w e affirm the judgment o f the trial cour t.

Phil Johnson Chief Justice