Nadir N. Ali and Mumtaz Ali v. Flessner Enterprises, Inc.
13-15-00095-CV
| Tex. App. | Jul 30, 2015Background
- Flessner Enterprises, an electrical contractor, was hired by Nadir and Mumtaz Ali after August 2008 to remove and completely redo the electrical in the Alis’ Fast Trak convenience store in Cuero, Texas.
- The parties did not set a total price or written contract; Flessner billed labor weekly, kept daily logs, and issued a final invoice dated March 30, 2009 for $145,543.37 (less $20,000 paid).
- Flessner testified he continued working after the last billed date (March 16, 2009), completing punch-list and warranty work through June 2009; the Alis sold the store in September 2009.
- The Alis disputed the billed amount, claimed they believed the job would cost $40–45K, and raised affirmative defenses of the four‑year statute of limitations and the statute of frauds (oral contract alleged).
- Suit was filed March 28, 2013. At trial the court found for Flessner, awarded damages and $4,500 in attorney’s fees; the Alis appealed contesting limitations, statute of frauds, attorneys’ fees, and the trial court’s failure to enter certain additional findings.
Issues
| Issue | Plaintiff's Argument (Ali) | Defendant's Argument (Flessner) | Held |
|---|---|---|---|
| 1. Did the suit fall outside the four‑year limitations period? | Contract was completed by March 16, 2009 so claim accrued before March 28, 2009. | The contract was continuing and not finally completed until June 2009; limitations did not begin before completion. | Trial court reasonably found completion occurred after March 28, 2009; limitations defense failed. |
| 2. Is the oral services contract barred by the statute of frauds (writing required)? | Article 2 or statute of frauds requires a writing for price/contract; oral agreement unenforceable. | Contract was primarily for services (not sale of goods), so §2.201 does not apply; even if it did, the contract was fully performed, removing it from the statute. | Court accepted that the contract was essentially services and/or fully performed; statute of frauds defense failed. |
| 3. Were attorney’s fees supported by the record? | No evidence supported the $4,500 fee award. | Flessner’s counsel testified that $4,500 was a reasonable and necessary fee for the case. | Trial court’s attorney‑fee award was supported by counsel’s testimony and upheld. |
| 4. Was the trial court required to file additional findings requested by Ali? | Failure to file requested findings deprived Ali of appellate relief on limitations and statute of frauds. | Requested findings were unsupported by the evidence, contradicted existing findings, and no harm resulted. | Court held trial court was not required to make the requested additional findings; no reversible harm shown. |
Key Cases Cited
- Alexander & Polley Constr. Co. v. Spain, 477 S.W.2d 301 (Tex. Civ. App. — Tyler 1972) (limitations accrual tied to final completion of continuous construction contract)
- Godde v. Wood, 509 S.W.2d 435 (Tex. Civ. App. — Corpus Christi 1974) (work that is part of a continuous contract makes accrual await conclusion of contract)
- Intermedics, Inc. v. Grady, 683 S.W.2d 842 (Tex. App. — Houston [1st Dist.] 1984) (continuing performance delays commencement of limitations period)
- Dynergy, Inc. v. Yates, 422 S.W.3d 638 (Tex. 2013) (party pleading statute of frauds must establish its applicability)
- Westergren v. Nat. Prop. Holding, L.P., 409 S.W.3d 110 (Tex. App. — Houston [14th Dist.] 2013) (complete performance takes agreement outside statute of frauds)
- G‑W‑L, Inc. v. Robichaux, 643 S.W.2d 392 (Tex. 1982) (dominant factor test: contracts principally for services are not governed by Article 2 sale‑of‑goods rules)
- Metal Structures Corp. v. Plains Textiles, Inc., 470 S.W.2d 93 (Tex. Civ. App. — Amarillo 1971) (burden to prove limitations accrual on party asserting defense)
- Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768 (Tex. 1989) (remedy for failure to enter findings is abatement and remand, not rendition)