author: WILLIAM J. BOYCE, Justice.

text:
    Ronald C. HATFIELD, Appellant v. Glenn J. SOLOMON, Appellee.
    No. 14-08-00487-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 3, 2010.

      David M. Gunn, Michael 0. Connelly, Houston, for appellant.
    Paul J. Dobrowski, Jeffrey C. Alexander, Houston, for appellee.
    Panel consists of Chief Justice HEDGES and Justices YATES and BOYCE.
   OPINION ON REHEARING

WILLIAM J. BOYCE, Justice.

Appellant Ronald C. Hatfield challenges the trial court’s money judgment against him based on the jury’s breach-of-contract findings in favor of appellee Glenn J. Solomon. In six issues, Hatfield asserts that the trial court erred in several respects in charging the jury, and that the trial court erred in awarding Solomon certain costs in the judgment. We conclude that the trial court did not err as alleged by Hatfield in charging the jury as to one of the breach-of-contract theories upon which the trial court rendered judgment. We conclude that, even if the trial court erred as alleged in charging the jury as to the other theories of recovery, any such error was not harmful. However, we conclude that the trial court erred by awarding Solomon $109,150.22 in costs. We modify the trial court’s judgment to correct this error, and we affirm the trial court’s judgment as modified.

Background

Solomon works in the real estate business in Dallas, Texas. Solomon’s father and Hatfield’s wife are cousins, and Solomon and Hatfield have known each other for at least 25 years. Solomon and Hatfield met at a family gathering sometime during 1996 or 1997, where Hatfield mentioned that he had moved to Cabo San Lucas, Mexico to work on a real estate development there called “Villas del Mar.” In connection with the Villas del Mar development, Hatfield worked for a company controlled by a Houston real estate developer. Solomon later visited Hatfield in Cabo and explored various opportunities for investing in real estate there.

The Villas del Mar project included the construction of luxury resort homes called “casitas.” According to Solomon, Hatfield told him that Hatfield: (1) had an option to purchase a casita to be built on lot 11 (the “Casita”) at a price significantly below the Casita’s market value; and (2) wanted to sell the option to Solomon. Solomon testified that he paid Hatfield $150,000 for this option in late February or early March 1998. Hatfield never assigned an option to Solomon; Hatfield has asserted in this lawsuit that he did not have an option to buy the Casita during this time period.

Although Hatfield and Solomon dispute the statements they made to each other during this period and the basis of their business relationship, it is undisputed that (1) Hatfield received $150,000 from Solomon; and (2) Hatfield and Solomon did not enter into a written agreement with each other before April 16, 2001.

After Hatfield received the $150,000 from Solomon, the nature of the Villas del Mar development changed in various ways. The developers decided to make the casi-tas larger, and the company for which Hatfield worked decided that it wanted Hatfield to live in the Casita while Hatfield was overseeing and promoting the development. Solomon testified that Hatfield proposed in mid-1999 that Hatfield and Solomon acquire the Casita as partners. According to Solomon, Hatfield and Solomon discussed the possibility that significant tax savings could be realized under Mexican law when the Casita was sold to a third party if Hatfield lived in the Casita, worked in Mexico, and owned all of the beneficial interest in the Casita. After various communications and negotiations between Hatfield and Solomon in 2000 and early 2001, Hatfield and Solomon signed a written agreement on April 16, 2001 (the “Agreement”).

The Agreement consists of a promissory note signed by Hatfield (“Note”), with a letter agreement signed by Hatfield and Solomon attached as an exhibit to the Note and incorporated by reference into the Note (“Letter Agreement”). By the time the parties signed the Agreement, the Ca-sita had been constructed and Hatfield was living in it. Hatfield unconditionally promised to pay Solomon $537,500 under the Agreement in two portions: the $150,000 portion and the $387,500 portion.

The $150,000 portion was payable in three installments of $25,000 and a final installment of $75,000, which was due on the fifth anniversary of the date of the Note unless “Conversion” had occurred before this date. If “Conversion” occurred before this date, the $75,000 would be paid out of the proceeds of the Casita’s sale. Absent acceleration of the Note, the $387,500 portion was due on the fifth anniversary of the date of the Note unless “Conversion” had occurred before that date.

The parties defined “Conversion” to mean the conversion of the $387,500 portion into Solomon’s “Net Profits Partnership Interest in the Casita” (“Net Profits Interest”). Under the Agreement, Hatfield expressly agreed to use his best efforts, in good faith, to acquire 100 percent of the beneficial interest in the Casita through a fideicomiso trust under Mexican law (“Acquisition”) on or before October 13, 2001. If Hatfield achieved Acquisition, he also was required to (1) pledge 100 percent of the beneficial interest in the Casita through a fideicomiso trust under Mexican law (“Beneficial Interest”) to secure Hatfield’s performance under the Agreement and record this pledge in the public registry as a first and prior lien on the Beneficial Interest; and (2) take all necessary steps before a Mexican “notario” so that the parties’ rights and obligations under the Agreement are a part of the fideicomiso trust arrangement such that (a) the trustee of the fideicomiso trust and all third parties would be on notice thereof, and (b) any transfer of the Beneficial Interest would be conditioned on the performance by Hatfield of his obligations under the Agreement and Solomon’s release of the lien on Hatfield’s interest. In addition to taking the foregoing steps for perfecting the pledge of the Beneficial Interest (collectively referred to herein as “Lien Perfection”), Hatfield also was required to pay various costs, fees, and taxes associated with the Acquisition (“Closing Cost Payment”). Acquisition, Lien Perfection, and Closing Cost Payment all had to occur for the $387,500 portion to convert into Solomon’s Net Profits Interest (“Conversion”).

After Conversion, this Net Profits Interest would be paid to Solomon by distributing to him half of the amount remaining from the Casita’s sale proceeds after subtracting certain items, including stipulated construction costs of $1,479,066. The Agreement did not require the Casita to be sold at any particular time. With the approval of Hatfield and Solomon, the Agreement allowed the Casita to be sold at any time. Under the Agreement, neither party had the right to sell the Casita before April 16, 2006, without the other party’s approval. On or after April 16, 2006, the Agreement gave Solomon the ability, if he chose to do so, to compel Hatfield to put the Casita up for sale on the open market.

It is undisputed that Hatfield never achieved Acquisition. Solomon presented evidence that during the 180-day period from April 16, 2001 through October 13, 2001 (hereinafter “First Time Period”), Hatfield obtained an option to purchase the Beneficial Interest. Hatfield testified that he did not obtain such an option during the First Time Period. It is undisputed that Hatfield obtained such an option in July 2005, and that this option lasted through December 31, 2008. Hatfield obtained this option during the five-year period ending on April 16, 2006. It is undisputed that Hatfield had not exercised this option as of the time of trial in January 2008. Hatfield asserts that he had no duty after October 13, 2001, to make any effort to achieve Acquisition. Solomon asserts that Hatfield had a duty under the Agreement to use reasonable efforts to achieve Acquisition between October 13, 2001, and April 16, 2006 (hereinafter “Second Time Period”).

Hatfield maintains he never agreed to be partners with Solomon unless and until a Conversion occurred under the Agreement. Because no Conversion occurred, Hatfield contends that no partnership was created. Solomon asserts that Hatfield owed a fiduciary duty to him because they were partners before they signed the Agreement and under the Agreement.

Hatfield tendered a check for $462,500 to Solomon in 2006, representing $387,500 plus $75,000. This is the amount Hatfield would owe under the Agreement five years after the date of the Note, absent a breach by Hatfield or Conversion of the $387,500 portion into Solomon’s Net Profits Interest. Hatfield tendered this check in full satisfaction of all Hatfield’s obligations under the Agreement. Solomon rejected the tender, and litigation ensued.

Solomon asserted claims against Hatfield for breach of contract, breach of fiduciary duty, and fraudulent inducement. Hatfield asserted claims against Solomon for breach of contract and declaratory judgment. The case went to trial; after ten trial days, the parties rested and the trial court prepared the jury charge. The trial court did not ask the jury to determine whether the parties formed a partnership or joint venture; instead, the trial court instructed the jury that the parties formed a type of partnership called a joint venture. The trial court also instructed the jury that a partner in a joint venture owes a fiduciary duty to its members and must fully and fairly disclose to them all material information concerning the joint venture’s affairs.

The trial court submitted liability and damages questions on two different theories of recovery for breach of contract, and on breach of fiduciary duty and fraudulent inducement.

As to the first contract theory, the jury found that Hatfield failed to use his best efforts, in good faith, to achieve Acquisition during the First Time Period (“First Contract Theory”). As to the second contract theory, the jury found that Solomon and Hatfield intended that Hatfield would use “reasonable efforts” under the Agreement to achieve Acquisition during the Second Time Period, and that Hatfield did not do so (“Second Contract Theory”). In response to identical damage questions, the jury found the same damages for both contract theories of recovery. The jury also found liability and damages regarding Solomon’s breach of fiduciary duty and fraudulent inducement claims. The jury assessed $462,500 in exemplary damages based on a finding the Hatfield engaged in malice, fraud, or gross negligence.

Solomon filed a motion for entry of judgment based on the jury’s breach of contract findings. The parties agreed to try the attorney’s fees issues to the bench; however, they stipulated to the amount of reasonable and necessary attorney’s fees incurred by Solomon through trial. The trial court rendered judgment for Solomon as follows: $1,244,656 in actual damages for breach of contract; $167,691.56 in prejudgment interest on this amount from April 16, 2006 to the date of judgment; $515,000 in reasonable and necessary attorney’s fees though trial, along with conditional awards of appellate attorney’s fees; $109,150.22 for recovery of costs; and postjudgment interest.

Analysis

In six appellate issues, Hatfield asserts that the trial court erred by: (1) instructing the jury that a partnership existed as a matter of law; (2) using the wrong date in the damages question for the First Contract Theory and by unfairly hiding the causation element in that question; (3) asking the jury to interpret the Agreement because the Agreement is unambiguous, and even if the Agreement were ambiguous, by wording the ambiguity question improperly; (4) defining the duties of a fiduciary in Question 5; (5) charging the jury on malice, fraud, and gross negligence because there was no evidence of malice, fraud, or gross negligence; and (6) awarding certain litigation costs in the judgment because there is no evidence or jury finding to support recovery of these costs.

A trial court must submit in its charge to the jury all questions, instructions, and definitions raised by the pleadings and evidence. See Tex.R. Civ. P. 278; Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 663-64 (Tex.1999). A proper jury instruction (1) assists the jury, (2) is legally correct, and (3) finds support in the pleadings and evidence. See Texas Workers’ Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex.2000). The goal is to submit to the jury the issues for decision logically, simply, clearly, fairly, correctly, and completely. See Rodriguez, 995 S.W.2d at 664. Toward that end, the trial court enjoys broad discretion so long as the charge is legally correct. See id. Appellate courts determine whether a challenged portion of the charge is legally correct using a de novo standard of review. See St. Joseph Hasp. v. Wolff, 94 S.W.3d 513, 525 (Tex.2003).

I. The Theories of Recovery Upon Which the Trial Court Rendered Judgment

Hatfield asserts on appeal that Solomon elected the First Contract Theory as the sole basis for the trial court’s judgment, relying on the statements of Solomon’s counsel at the February 21, 2008 hearing. Solomon contradicts this assertion in his appellate brief by asserting that he “elected to recover upon the breach of contract findings.... ” The jury made two findings that Hatfield breached his contract, one finding as to the First Contract Theory and one finding as to the Second Contract Theory. By asserting that he elected to recover on the jury’s two breach-of-contract findings, Solomon has contradicted Hatfield’s assertion that Solomon only elected to recover upon the First Contract Theory. See Tex.R.App. P. 38.1(g). Before analyzing Hatfield’s issues, we first identify the theories of recovery that served as the basis of the trial court’s judgment in favor of Solomon.

In its judgment, the trial court did not unambiguously limit the basis of the judgment to the First Contract Theory. See Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.Sd 417, 422 (Tex.2000) (holding that language of unambiguous judgment must be enforced without consideration of extrinsic evidence as to its meaning). We presume for the sake of argument that the judgment is ambiguous as to whether it is based on the Second Contract Theory. Therefore, we focus on the judgment’s language and consider the record and the context in which the trial court rendered the judgment. See Lone Star Cement Corp. v. J. Roll Fair, District Judge, 467 S.W.2d 402, 404-05 (Tex.1971).

In his motion for entry of judgment, Solomon stated that “[i]n this case, the judgment that the Court should enter should be based on the jury’s breach of contract findings.” Solomon did not seek judgment based on his tort claims. Solomon outlined the contract damages that he argued should be awarded in the judgment; however, the damages recoverable under Solomon’s two contract theories of recovery are the same. Solomon provided the trial court with a proposed judgment under which Solomon would recover these damages. In his motion and proposed judgment, Solomon did not limit the basis for his requested judgment to the First Contract Theory.

On February 21, 2008, the trial court held a hearing on various post-verdict motions. At this hearing, the trial court denied Hatfield’s motion for judgment notwithstanding the verdict and heard argument regarding various issues relating to rendition of judgment. At one point, Solomon’s counsel stated that Solomon was electing to recover under breach of contract, which would indicate recovery under both theories; however, Solomon’s counsel made other statements that seemed to limit Solomon’s election to only the First Contract Theory. The trial court rejected Hatfield’s contention that, in calculating Solomon’s actual damages, a deduction should be made for Mexican taxes, and counsel discussed how they had otherwise stipulated to the amount of the deductions to be made in calculating the amount of Solomon’s actual damages as well as the amount of reasonable attorney’s fees to be awarded Solomon through trial. The trial court also determined that it would calculate prejudgment interest based on a 7.25 percent interest rate rather than an 18 percent interest rate. The trial court further concluded that Solomon was entitled to recover $109,150.22 in costs under the Agreement. The trial court did not render judgment on February 21, 2008.

On February 28, 2008, the parties submitted a proposed judgment to the trial court, the form of which was approved by the parties. There was a brief hearing before the trial court signed this judgment; however, no mention was made during this hearing regarding the theories upon which the judgment was based. The trial court then signed its final judgment. In this judgment, the trial court incorporates the jury’s verdict, renders judgment on the verdict, and grants Solomon a contract recovery against Hatfield. In the judgment, the trial court does not limit Solomon’s recovery to the First Contract Theory, nor does the court state that judgment is based on both contract theories.

In response to Hatfield’s motion for new trial, Solomon indicated that the trial court’s judgment was based on both contract theories. Solomon stated that “Solomon elected to recover his damages under the breach of contract findings and the Court entered judgment accordingly. Hence, the jury’s findings regarding breach of fiduciary duty and fraud are moot.”

When a party receives favorable jury findings on two or more theories of recovery that yield different damage amounts, that party may elect the measure of damage upon which the party wishes to recover. See Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361, 367 (Tex.1987). Double recovery for a single injury is not permitted; if the prevailing party fails to make such an election, then the trial court should utilize the findings affording the prevailing party the greater recovery and render judgment accordingly. See id. However, if a party receives favorable findings on two or more theories of recovery that are consistent with each other and result in the same damages, then the trial court may render judgment awarding a single recovery of these damages and this judgment may be based on all of these theories. See Texas & N. O. R.R. Co. v. McGinnis, 130 Tex. 338, 109 S.W.2d 160, 162-63 (1937) (rejecting defendant’s contention that trial court’s judgment was based on only common-law negligence and affirming judgment based on plaintiffs claim under Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60 (“FELA”), in case in which jury made findings favorable to plaintiff on his common-law negligence claim and on his FELA claim, and in which damages were the same under both claims); Owens-Corning Fiberglas Corp. v. Martin, 942 S.W.2d 712, 715, 722-23 (Tex.App.-Dallas 1997, no writ) (affirming trial court’s judgment based on products-liability claim despite error in the charge as to the negligence claim, in case in which the judgment was based on both claims and the damage awards were the same for both claims).

While the colloquy among the trial court and the parties one week before rendition of judgment may have indicated that Solomon was electing to recover only under the First Contract Theory, this is not disposi-tive of the meaning of the language in the judgment rendered by the trial court one week later. See Gulf States Utilities Co. v. Low, 79 S.W.3d 561, 564-65 (Tex.2002).

In Gulf States Utilities Co., the Supreme Court of Texas sought to determine the basis for the trial court’s judgment when the judgment did not specify the theory on which it was based. See id. The Supreme Court indicated that, if the judgment awarded the amount of damages corresponding to a theory of recovery, then the court would construe the judgment as being based on that theory of recovery. See id. at 565. Here, the trial court awarded Solomon the exact amount of damages that he would recover under either contract theory of recovery, and the trial court did not exclude the Second Contract Theory as a basis for the judgment. Because the damages recoverable under the two contract theories are identical and because the trial court awarded a single recovery of these damages, Solomon was not required to elect between these two theories of recovery. See Birchfield, 747 S.W.2d at 367; McGinnis, 109 S.W.2d at 162-63; Owens-Corning Fiberglas Corp., 942 S.W.2d at 722-23. After reviewing the language of the judgment and the record, we conclude that the trial court rendered judgment based on both contract theories of recovery.

II. Ambiguity of the Agreement

Hatfield asserts in his third issue that, under the unambiguous language of the Agreement, he had no duty to make any effort to achieve Acquisition after October 13, 2001. If Hatfield is correct, then the trial court erred in determining that the Agreement was ambiguous and in asking the jury to determine whether the parties intended that Hatfield had a duty under the Agreement to use reasonable efforts to achieve Acquisition during the Second Time Period.

Whether a contract is ambiguous is itself a question of law. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996). If a written instrument is so worded that it can be given a certain or definite legal meaning or interpretation, it is not ambiguous and it can be construed as a matter of law. Lenape Res. Corp. v. Tenn. Gas Pipeline Co., 925 S.W.2d 565, 574 (Tex.1996). If its meaning is uncertain and doubtful or it is reasonably susceptible to more than one meaning, taking into consideration circumstances present when the particular writing was executed, then it is ambiguous and its meaning must be resolved by the finder of fact. See id. In construing a written contract, our primary concern is to ascertain the true intentions of the parties as expressed in the written instrument. See id. This court need not embrace strained rules of construction that would avoid ambiguity at all costs. See id.

The issue here is not whether a court may imply a covenant by Hatfield to use reasonable efforts to achieve Acquisition during the Second Time Period. See HECI Exploration Co. v. Neel, 982 S.W.2d 881, 888-89 (Tex.1998) (stating that courts can imply a covenant if “it appears from the express terms of the contract that it was so clearly within the contemplation of the parties that they deemed it unnecessary to express it, and therefore they omitted to do so, or it must appear that it is necessary to infer such a covenant in order to effectuate the full pui-pose of the contract as a whole as gathered from the written instrument”) (quotations omitted). Instead, the issue is whether the Agreement is ambiguous as to whether the parties agreed that Hatfield had a contractual duty to use reasonable efforts to achieve Acquisition during the Second Time Period.

Hatfield expressly agreed under the Agreement to use his best efforts, in good faith, to achieve Acquisition on or before October 13, 2001. If he acquired the Beneficial Interest, Hatfield also agreed to obtain Lien Perfection and Closing Cost Payment. After Acquisition, Lien Perfection, and Closing Cost Payment, the $387,500 portion of the Note would convert into a Net Profits Interest. If this Conversion did not occur prior to April 16, 2006, Solomon agreed he would have no Net Profits Interest, and Hatfield would instead owe Solomon $537,500 under the Note — $387,500 plus the final $75,000 installment from the $150,000 portion. Hatfield did not agree to use his best efforts to achieve Lien Perfection and Closing Cost Payment; rather, if Hatfield achieved Acquisition, he agreed to achieve Lien Perfection and Closing Cost Payment.

Hatfield asserts that the only reasonable interpretation of the Agreement is that Hatfield had no duty to make any effort to achieve Acquisition after October 18, 2001. Hatfield argues that stating such a duty in the Agreement would have been easy, yet the parties did not expressly address in the Agreement what efforts, if any, Hatfield was required to make to achieve Acquisition during the Second Time Period. Hatfield notes that at no point in the Agreement does Hatfield expressly agree to use reasonable efforts to do anything.

Solomon argues that, while the Agreement does not contain an express covenant obligating Hatfield to pursue Acquisition during the Second Time Period, the Agreement also lacks language stating that Hatfield has no duty to pursue Acquisition during the Second Time Period. In support of his interpretation, Solomon notes that the parties state in several parts of the Agreement that Conversion can occur up until the end of the Second Time Period. In response, Hatfield asserts that, though the parties agreed that Conversion could occur up until the end of the Second Time Period, this Agreement does not show that Hatfield had any duty to seek Acquisition during the Second Time Period. Instead, Hatfield asserts that the Agreement allowed him to achieve Lien Perfection at any time during the Second Time Period.

We conclude that Hatfield’s alternative interpretation of the Agreement is reasonable. Conversion occurs upon the satisfaction of three conditions — Acquisition, Lien Perfection, and Closing Cost Payment. The Agreement expressly states that Conversion can occur up until the end of the Second Time Period. Therefore, under the express language of the Agreement, Acquisition can occur during the Second Time Period, after the expiration of Hatfield’s duty to use his best efforts, in good faith, to achieve Acquisition. It might be reasonable to construe the Agreement as contemplating only the possibility that Hatfield would achieve Acquisition during the Second Time Period even though he had no contractual duty to do so. However, it is also reasonable to construe the Agreement as imposing on Hatfield a duty to use reasonable efforts to achieve Acquisition during the Second Time Period, because the parties would not expect Hatfield to achieve Acquisition during this period absent a contractual duty to do so. We conclude it is reasonable to interpret the Agreement to impose on Hatfield a duty to use reasonable efforts to achieve Acquisition during the Second Time Period. Because there are two reasonable interpretations, the Agreement is ambiguous. See Lenape Res. Corp., 925 S.W.2d at 574 (contract provision was ambiguous); Exxon Corp. v. West Texas Gathering Co., 868 S.W.2d 299, 302 (Tex.1993) (contract was ambiguous based on two reasonable interpretations of an issue not specifically addressed in the contract); Coker v. Coker, 650 S.W.2d 391, 393-94 (Tex.1983) (contract language was unclear and ambiguous). Therefore, the trial court did not err in concluding that the Agreement was ambiguous and in asking the jury to determine whether the parties intended that, during the Second Time Period, Hatfield had a duty under the Agreement to use reasonable efforts to achieve Acquisition.

III. The Form of Question 2 in the Jury Charge

Hatfield also asserts in his third issue that, even if the Agreement were ambiguous, the trial court erred by wording the ambiguity question improperly. Specifically, Hatfield asserts that the trial court erred by overruling his objection that Question 2 should be structured in accordance with Texas Pattern Jury Charge 101.8 (“PJC 101.8”). See Comm, on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Business, Consumer, Insurance, Employment 42-43 (2008 ed.). Unlike the format suggested in PJC 101.8, Question 2 does not quote any ambiguous language from the Agreement and does not instruct the jury to interpret this language. See id.

The trial court enjoys wide discretion in framing a jury charge and is given broad latitude to determine the propriety of explanatory instructions and definitions. See H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22, 23 (Tex.1998). The trial court asked the jury to determine whether the parties intended that Hatfield would use “reasonable efforts” under the Agreement to achieve Acquisition during the Second Time Period. The trial court instructed the jury that it had to determine the parties’ intent at the time of the Agreement, considering all of the facts and circumstances surrounding the making of the Agreement, the interpretation placed on the Agreement by the parties, and the parties’ conduct. Though the trial court does not have discretion to submit a legally incorrect charge, we conclude that the trial court’s failure to include an instruction similar to PJC 101.8 does not make Question 2 legally incorrect. See Rodriguez, 995 S.W.2d at 663-64 (trial court enjoys broad discretion in framing the jury charge so long as the charge is legally correct); Exxon Corp., 868 S.W.2d at 302, n. 3 (ordinarily, the better method for submitting a question of ambiguity in a contract to the jury is to follow PJC 101.8; but following PJC 101.8 is not mandatory as a matter of law). We conclude that the trial court did not abuse its discretion by failing to include the instruction from PJC 101.8 in Question 2. See H.E. Butt Grocery Co., 985 S.W.2d at 23-25 (trial court did not abuse its discretion in formulating the jury charge).

Having found that both of Hatfield’s complaints in his third issue lack merit, we overrule Hatfield’s third issue.

IY. Harm Analysis Regarding Alleged Error in Instructing Jury on Partnership

In his first issue, Hatfield asserts that the trial court erred by instructing the jury as a matter of law that a partnership existed between the parties rather than asking the jury to determine whether a partnership existed. We presume for the sake of argument that the trial court erred in instructing the jury that Hatfield and Solomon had formed a partnership and owed fiduciary duties to one another. We presume that the trial court should have submitted the issue of partnership formation to the jury. In determining whether this charge error was harmful, we examine the entire record and determine whether the charge error probably caused the rendition of an improper judgment. See Tex.R.App. P. 44.1(a); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex.2001).

Hatfield asserts that the parties hotly contested whether there was a partnership between Hatfield and Solomon; Hatfield and his counsel told the jury there was no partnership, and Solomon and his counsel told the jury there was. By instructing the jury as a matter of law that there was a partnership, Hatfield asserts that the trial court effectively told the jury that Hatfield was a liar. Hatfield notes that the parties emphasized the partnership issues during the trial. Hatfield asserts that Solomon’s counsel emphasized the erroneous partnership instruction by telling the jury at the beginning of his closing argument that, though Hatfield testified he did not have a partnership with Solomon and did not owe him a fiduciary duty, the trial court instructed the jury to the contrary in the charge.

The issue of whether a partnership existed may have been a hotly contested issue at trial; however, that issue did not impact Solomon’s Second Contract Theory. As to that theory, the jury was asked only to determine (1) whether the parties intended Hatfield to have a duty to use reasonable efforts to achieve Acquisition during the Second Time Period, (2) whether Hatfield breached this duty, and (3) the fair market value of the Casita to be used to determine Solomon’s damages resulting from this breach. These questions and any answers to them were not affected by the existence of a partnership or the existence of a fiduciary duty owed by Hatfield to Solomon.

Error in the submission of an issue generally is deemed to be harmless when the findings of the jury in answer to other issues are sufficient to support the judgment. See Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 750 (Tex.1980); McGinnis, 109 S.W.2d at 162-63. An exception to this rule exists when the charge error confuses or misleads the jury as to all of the issues or theories that are sufficient to support the judgment. See Boat-land of Houston, Inc., 609 S.W.2d at 750.

Presuming that the partnership instruction was erroneous, it would affect the questions regarding the breach of fiduciary duty claim and perhaps the fraudulent inducement claim; however, Solomon did not elect recovery on these claims, and they are not the basis for the trial court’s judgment. We conclude that this error would not confuse or mislead the jury regarding the Second Contract Theory, which was a basis for the trial court’s judgment. After carefully reviewing the entire record, we conclude that, even if the partnership instruction was erroneous, this error did not probably cause the rendition of an improper judgment. See Boatland of Houston, Inc., 609 S.W.2d at 750 (even if the trial court erred in submitting three products liability defenses, these errors would not affect the determination of whether the product was defective, and the jury’s negative answer to this question rendered any error regarding the defenses harmless); McGinnis, 109 S.W.2d at 162-63 (any charge error regarding plaintiffs common-law negligence claim was harmless because judgment was also based on plaintiffs FELA claim and the alleged error did not affect the questions regarding the FELA claim); Owens-Coming Fiberglas Corp., 942 S.W.2d at 715, 722-23 (charge error regarding plaintiffs negligence claim was harmless because judgment was also based on a products-liability claim that was not affected by the error in the charge regarding the negligence claim).

Hatfield contends that the erroneous partnership instruction tainted the entire jury charge, causing the jury to find in favor of Solomon on all of his theories of recovery. Hatfield argues that the main issue at trial was whether the jury would find Solomon or Hatfield more credible and that the trial court’s erroneous instruction destroyed Hatfield’s credibility with the jury. Hatfield cites no precedent that supports such a harm analysis. Hatfield cites various cases involving harmful charge error, but in those cases, the error in the charge affected the theory or theories of recovery that were the basis of the trial court’s judgment. Hatfield also relies on a statement from a concurring opinion in the Supreme Court of Texas. See Ford Motor Co. v. Miles, 967 S.W.2d 377, 378, 387 (Tex.1998) (Owen, J., concurring) (“The instruction tainted all the findings of the jury in what was a closely contested ease.”). In that case, the error was in the charge’s definitions of “proximate cause” and “producing cause,” resulting in an erroneous definition of an essential element of all six liability theories submitted to the jury. See id. at 385. Therefore, the taint of which Justice Owen spoke resulted from error in a definition used in all of the liability theories; Justice Owen did not conclude that error in an instruction as to one theory infected all of the other theories, even though the erroneous instruction did not pertain to those theories. See id. at 385-87.

For the reasons stated above, we conclude that, even if the trial court erred in instructing the jury as a matter of law that a partnership existed rather than asking the jury to determine whether a partnership existed, this error did not probably cause the rendition of an improper judgment. See Tex.R.App. P. 44.1(a); See Boatland of Houston, Inc., 609 S.W.2d at 750; McGinnis, 109 S.W.2d at 162-63; Owens-Corning Fiberglas Corp., 942 S.W.2d at 715, 722-23. Accordingly, we overrule Hatfield’s first issue.

V. Alleged Charge Error in Damage Question for the Second Contract Theory

The damage question for the Second Contract Theory (Question 4) was the same as the damage question for the First Contract Theory (Question 1A). On appeal, Hatfield argues that both of these questions have the same errors. Hatfield argues that the damage questions are confusing and unfairly hide the causation element. Hatfield asserts that the damage questions appear to ask the jury to determine the market value of the Casita without requiring a finding that damages resulted from Hatfield’s breach of contract. Hatfield preserved this complaint during the charge conference.

If the jury found that Hatfield failed to use reasonable efforts to acquire the Beneficial Interest during the Second Time Period, then the trial court instructed the jury to answer the following question:

JURY QUESTION Í
Find the market value of the Casita on the following dates, which, when applied to calculate Mr. Solomon’s 50% net profits interest, would fairly and reasonably compensate Mr. Solomon for his damages, if any, that resulted from Mr. Hatfield’s failure to comply?
You are instructed that, at the time of any judgment, the Court will deduct from the market value found by the jury, the construction costs, sales commission, and fixed amount [sic] to repay Mr. Solomon, in order to calculate the amount, if any, of the 50% net profits interest.
In arriving at the fair market value, you are instructed to not consider Mexican taxes which might be payable at the time of any sale, if any, or which might be owed by either party in Mexico or the United States.
Answer in dollars and cents, if any, for each the [sic] following dates.
A. April 16, 2006 ________

Presuming that Hatfield breached a contractual duty to use reasonable efforts to seek Acquisition during the Second Time Period, the only damages Solomon can recover under the Second Contract Theory are those caused by this breach. See Clearview Properties, L.P. v. Property Texas SC One Corp., 287 S.W.3d 132, 139-40 (Tex.App.-Houston [14th Dist.] 2009, pet. denied). We presume for the purposes of our analysis that the evidence raised a fact issue as to whether this alleged breach caused Solomon not to obtain a Net Profits Interest that he otherwise would have received. While Question 4 could have been worded more clearly, we conclude that Question 4 sufficiently submitted the causation issue to the jury. This is reflected by the fact that Hatfield’s counsel argued during closing that the jury could answer “zero” to the damages questions if the jury determined that any breach by Hatfield did not deprive Solomon of a Net Profits Interest. Therefore, we conclude that the trial court’s charge did not unfairly hide the causation issue.

Hatfield also asserts that the damage question for the Second Contract Theory measures market value on the wrong date. He asserts that damages should be measured on the date of breach, which he asserts is the last date of the relevant time period for the contractual duty that was breached. Presuming that Hatfield’s argument is correct, damages under the First Contract Theory should have been measured on October 13, 2001, at the end of the First Time Period, and damages under the Second Contract Theory should have been measured on April 16, 2006, at the end of the Second Time Period. We presume for the sake of argument that Hatfield preserved error regarding his wrong date argument. The wrong date argument, if correct, would mean that there is charge error as to the First Contract Theory because the date submitted in the damage question was April 16, 2006, rather than October 13, 2001. However, the -wrong date argument, even if correct, does not show error as to the Second Contract Theory because the trial court measured damages as of April 16, 2006 in Question 4, which is the date yielded under Hatfield’s argument.

For the reasons stated above, we find no merit in Hatfield’s arguments as to why the trial court allegedly erred in charging the jury regarding the damage question for the Second Contract Theory.

YI. Harm Analysis Regarding Alleged Error as to Other Claims

Hatfield asserts charge error in his second issue regarding Question 1A, the damage question for the First Contract Theory. In his fourth issue, Hatfield asserts charge error regarding the questions for the breach of fiduciary duty claim. In his fifth issue, Hatfield asserts that the trial court erred in submitting the punitive damage liability question based on the breach of fiduciary duty finding. Hatfield also asserts charge error regarding the questions for the fraudulent inducement claim. We already have rejected all of Hatfield’s arguments regarding the Second Contract Theory.

We presume for the sake of argument that the trial court erred as asserted by Hatfield. However, even if the trial court erred in these matters, these errors do not relate to the Second Contract Theory and they would not confuse or mislead the jury regarding this theory, which was a basis for the trial court’s judgment. After carefully reviewing the entire record, we conclude that, even if the jury charge contained these errors, they did not probably cause the rendition of an improper judgment. See Tex.R.App. P. 44.1(a); See Boatland, of Houston, Inc., 609 S.W.2d at 750; McGinnis, 109 S.W.2d at 162-63; Owens-Corning Fiberglas Corp., 942 S.W.2d at 715, 722-23. Accordingly, we overrule Hatfield’s second, fourth, and fifth issues.

VII. The Trial Court’s Award of Costs

In his sixth issue, Hatfield challenges the trial court’s award of $109,150.22 in costs to Solomon in the judgment. Although these costs are not taxable court costs, Solomon asserts that he is entitled to recover these types of costs under the terms of the Agreement, and we presume for the sake of argument that Solomon is correct. Nonetheless, there was no order or agreement between the parties that the issue regarding Solomon’s entitlement to recover these costs would be tried separately. At trial, there was no evidence of the amount of these costs. Solomon did not seek any finding as to the amount of these costs, and this issue was not submitted in the jury charge.

In a post-trial motion seeking judgment on the jury verdict, Solomon raised the issue of his entitlement to these costs. At a hearing on February 21, 2008, Solomon proffered exhibits purporting to prove the amounts of these costs, which the trial court “admitted for the purposes of this post-verdict proceeding.” The trial court did not re-open the evidence to make these exhibits part of the trial evidence. Hatfield contested Solomon’s right to recover these costs, arguing that Solomon was seeking to recover these non-taxable costs under the Agreement; that the parties did not agree to try this issue separately; and that Solomon had not proved up these costs in the jury trial. The trial court ruled that Solomon could recover these costs under the Agreement and awarded them in its judgment.

On appeal, Solomon asserts that the trial court had the authority to award these non-taxable costs to Solomon under Rules 131 and 141 of the Texas Rules of Civil Procedure. See Tex.R. Civ. P. 131, 141. Solomon asserts that, under Rule 141, a trial court may award non-taxable costs to a party for good cause. Before addressing this argument, it is helpful to look at the rules regarding taxable court costs.

Texas statutes and common law delineate which items the court may and may not include as taxable costs. Sterling Bank v. Willard M, L.L.C., 221 S.W.3d 121, 124 (Tex.App.-Houston [1st Dist.] 2006, no pet.). Rule 131 provides that “[t]he successful party to a suit shall recover of his adversary all costs incurred therein, except when otherwise provided.” Tex.R. Civ. P. 131. “Costs” usually refers to fees and charges required by law to be paid to the courts or some of their officers, the amount of which is fixed by statute or the court’s rules, for example filing and service fees. See Sterling Bank, 221 S.W.3d at 125. Costs within the meaning of Rules 125 through 149 are those items in the clerk’s bill of costs. See id.; see also Tex.R. Civ. P. 125-49. The allocation of costs is a matter for the trial court’s discretion and cannot be overturned on appeal absent an abuse of discretion. See Sterling Bank, 221 S.W.3d at 125.

Under Rule 141, the trial court has discretion, for good cause stated on the record, to allocate costs otherwise than as provided by law or the Texas Rules of Civil Procedure. See Tex.R. Civ. P. 141. Therefore, the trial court has the power to tax costs contrary to the applicable default rule — for example, to a party who is not the “successful party” under Rule 131. See Sterling Bank, 221 S.W.3d at 125. However, this power to allocate costs in a manner different from the norm does not encompass the power to tax as costs items that are not normally allowed as taxable court costs. See id. Generally, expenses incurred in prosecuting or defending a lawsuit are not recoverable as costs in Texas, unless permitted by a statute or equitable principle. See id. Under the Texas Civil Practice and Remedies Code, a party may recover fees of the clerk and service fees due to the court, court reporter fees for the original of stenographic transcripts, and such other costs and fees permitted to be awarded by other rules and statutes. See Tex. Civ. Prac. & Rem. Code Ann. § 31.007(b) (Vernon 2008).

The trial court did not award Solomon taxable court costs based on the district clerk’s bill of costs. Rather than awarding Solomon taxable court costs under Texas Rules of Civil Procedure 125 through 149, the trial court awarded Solomon the costs in question under the Agreement. In this context, the trial court’s assessment of these costs cannot be justified based on the trial court’s discretion under Rule 141 to allocate taxable costs in a manner different from the norm. See Sterling Bank, 221 S.W.3d at 125. Contrary to Solomon’s argument, Rule 141 does not give the trial court discretion to assess as costs items that are not within the scope of taxable court costs under Texas statutes, rules, and common law. See id. Although Solomon can seek recovery of the costs in question as damages under the Agreement, Solomon cannot recover these items as taxable court costs. See id.; Flint & Associates v. Intercontinental Pipe & Steel, Inc., 739 S.W.2d 622, 626-27 (Tex.App.-Dallas 1987, writ denied).

The parties did not agree to try the issue of Solomon’s recovery of these costs under the Agreement separately. Solomon presented no proof of these costs during the jury trial, and the jury made no findings in this regard. On this record, the trial court erred in awarding Solomon these costs because, as Hatfield asserted, the trial evidence provided no evidence to support such a recovery. See Varner v. Cardenas, 218 S.W.3d 68, 69-70 (Tex.2007) (successful plaintiffs could not recover appellate or foreclosure attorney’s fees under Chapter 38 of the Texas Civil Practice and Remedies Code, because plaintiffs did not present any evidence at trial to prove up these fees); University of Texas at Austin v. Abies, 914 S.W.2d 712, 718 (Tex.App.Austin 1996, no writ) (trial court abused its discretion by awarding attorney’s fees as to which no evidence was presented at the jury trial; trial court could not award fees based on evidence presented after trial because the parties did not agree to try this issue to the bench and the opposing party objected); Flint & Associates, 739 S.W.2d at 626-27 (trial court erred in awarding non-taxable court costs because, even if these costs were recoverable under the parties’ contract, the parties seeking these costs did not prove their entitlement to recover them during the jury trial and did not obtain a stipulation to try this issue separately). Accordingly, we sustain Hatfield’s sixth issue.

Conclusion

We modify the trial court’s judgment to delete the award of $109,150.22 in costs, and as modified, we affirm the trial court’s judgment.

       We deny appellee’s motion for rehearing. The opinion issued in this case on March 11, 2010 is withdrawn, and this opinion on rehearing is issued in its place.

      . There was testimony at trial that individuals who are not Mexican citizens cannot hold title to coastal real estate under Mexican law but can own beneficial title through a “fideicomi-so trust,” under which a Mexican bank holds legal title.

      . This date is 180 days after April 16, 2001. Under the Agreement, “Hatfield agrees to use his best efforts, in good faith, to acquire 100% beneficial interest in the Casita, on or before 180 days after the date of this letter agreement, pursuant to a fideicomiso trust arrangement under Mexican law.” (emphasis added). Although Hatfield signed the Agreement on April 16, 2001, the top of the Letter Agreement bears the date "March 16, 2001.” The jury charge and the parties designate April 16, 2001 as “the date of this letter agreement.” Therefore, we do the same.

      . Even if the Second Contract Theory did not provide a basis for the trial court's judgment, this court would still be able to address this theory as a basis for affirming the trial court's judgment on original submission because the parties have briefed this theory on appeal. See Beal Bank, S.S.B. v. Schleider, 124 S.W.3d 640, 650, n. 4 (Tex.App.-Houston [14th Dist.] 2003, pet. denied).

      . Hatfield has not challenged the sufficiency of the evidence supporting the jury's finding that the parties to the Agreement intended to impose on Hatfield a duty to use reasonable efforts to achieve Acquisition during the Second Time Period.

      . Question 4 also asked the jury to determine the market value of the Casita as of January 2008, the time of trial. At oral argument, Solomon’s counsel stated that this date was inadvertently included in Question 4, and that the valuation date on which Solomon bases his damage model for his contract claims is April 16, 2006.

      . In his response in opposition to Solomon's motion for entry of judgment, Hatfield also asserted two arguments as to why these costs are not recoverable under the Agreement. At the February 21, 2008 hearing, Hatfield's counsel agreed with the trial court's statement that Hatfield was not contesting the amount of these costs. In light of Hatfield's objections to Solomon’s recovery of these costs, this statement means that Hatfield was not asserting that Solomon should recover some other amount of non-taxable costs; Hatfield nonetheless asserted that Solomon could not recover these costs at all, either because the Agreement does not afford this recovery or because of Solomon's failure to prove up his right to recover these costs during the jury trial.

      . For this reason, Solomon's reliance on Rogers v. Walmart Stores, Inc., 686 S.W.2d 599, 600 (Tex. 1985), is misplaced. Rogers addressed the trial court’s discretion under Rule 141 to allocate normal, taxable court costs to the unsuccessful party; it did not deal with any purported power under Rule 141 to assess as taxable court costs items that are not within the scope of taxable court costs under Texas statutes, rules, and common law. See Rogers, 686 S.W.2d at 600-601.

      . In his motion for rehearing, Solomon asserts that, even if the trial court erred in awarding these costs, the proper remedy is for this court to (1) order that Solomon recover only taxable costs or (2) remand this case to the trial court for re-taxation of costs. However, as stated above, the trial court did not award the $109,150.22 as taxable court costs; rather, the trial court awarded these costs under the Agreement. For the reasons stated above, the trial court erred in awarding any of these costs under the Agreement. In its judgment, the trial court did not award taxable court costs to Solomon or to Hatfield. Solomon did not perfect an appeal from this judgment, and therefore, Solomon cannot obtain greater relief on appeal than the relief granted him in the trial court's judgment. See Pounds v. Jurgens, 296 S.W.3d 100, 110, n. 14 (Tex.App.-Houston [14th Dist.] 2009, pet. filed). Because this court cannot grant the relief Solomon seeks in his motion for rehearing, we deny this motion.


source: Caselaw Access Project

author: LESLIE YATES, Justice.

license: Public Domain

text:
    PARKER DRILLING COMPANY & Parker Drilling Company (Bolivia) S.A., Appellants v. ROMFOR SUPPLY COMPANY & Romfor West Africa Ltd., Appellees.
    No. 14-08-00875-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 8, 2010.
    Rehearing Overruled Aug. 12, 2010.

      Jeffrey L. Oldham, Andrew F. Spalding, Nell Frances Connally, Houston, for appellants.
    Larry D. Harvey, Houston, for appel-lees.
    Panel consists of Justices YATES, FROST, and BROWN.
   OPINION

LESLIE YATES, Justice.

Appellants Parker Drilling Company and Parker Drilling Company (Bolivia) S.A. (collectively “Parker”) appeal from a judgment entered in favor of appellees Romfor Supply Company and Romfor West Africa Ltd. (collectively “Romfor”) in a breach of contract case. In three issues, Parker argues the evidence is legally insufficient to support the jury’s finding of a contract between Parker and Romfor, the trial court erred as a matter of law in awarding damages against Parker, and the trial court’s award of attorney’s fees in favor of Romfor is erroneous. Because we find the evidence is legally insufficient to support the jury’s finding of a contract between Parker and Romfor, we reverse the trial court’s judgment and render judgment that Romfor take nothing.

I. Background

Parker and Romfor are companies engaged in drilling for oil in various locations throughout the world. In early 2003, Romfor learned that Parker was selling equipment out of its worldwide fleet. Romfor expressed interest in purchasing one of Parker’s oil rigs located in Nigeria (“Rig 220”) because it was planning to begin drilling operations in the Congo along with Caroil S.A., Romfor’s French venture partner. Romfor and Parker signed a letter of intent for Romfor to purchase Rig 220 for $800,000. Before a contract was finalized, Parker informed Romfor that it was withdrawing its offer to sell Rig 220 because it had accepted a third party’s offer. Parker subsequently provided Romfor with a list of other rigs available for sale, and Romfor decided to pursue an agreement to purchase a rig located in Bolivia (“Rig 118”) for $1,745,000. Romfor’s president, Stuart Breckon, travelled to Bolivia in May 2003 to inspect Rig 118 and determined the rig needed certain repairs before being transported to the Congo. Following Breckon’s visit to Bolivia, Parker and Romfor entered into an agreement (the “Service Agreement”) under which Parker would repair Rig 118 and Romfor would pay Parker for the repairs. A contract for the sale of Rig 118 was finalized in June 2003, and Parker shipped Rig 118 to the Congo during the last week of June 2003 after completing the repairs requested by Rom-for.

While in Bolivia, Breckon learned that Parker was winding down drilling operations in that country and was looking to sell much of its equipment located there. Breckon signed a document offering to purchase eleven pieces of equipment from Parker for $84,000 (“Romfor’s Offer”). Included in these eleven pieces of equipment were three Gardner Denver PZ-9 mud pumps (the “Mud Pumps”), which Romfor offered to purchase for $6,000 each. Parker did not officially respond to Romfor’s Offer; however, Parker shipped the eight items other than the Mud Pumps to Africa along with Rig 118, and Romfor later paid Parker for these eight items. After Rig 118 left Bolivia, Patricia Carreras, Parker’s financial administrator, informed Breckon that Parker intended to sell the Mud Pumps to SOCO Bolivia S.R.L. (“SOCO”) for $21,429, and that SOCO would be responsible for refurbishing and exporting the pumps.

Parker subsequently invoiced the pumps to SOCO (the “Parker/SOCO Invoice”) and SOCO finished repairing the pumps. Over the next several months, SOCO repeatedly asked Romfor to pay the pumps’ purchase price and repair costs, and continually informed Parker that it could not pay for the pumps because Romfor had not yet paid SOCO for them. In January 2004, Parker notified SOCO that it was cancelling the sale of the Mud Pumps because SOCO had not paid the purchase price. SOCO can-celled the Parker/SOCO Invoice in February 2004 and Parker regained possession of the pumps. In April 2004, Parker invoiced the Mud Pumps to SOCO again after SOCO informed Parker that it had received an offer from a third party to purchase the pumps for $90,000. Parker re-sold the pumps to SOCO for $21,429. SOCO kept all of the profit from the subsequent sale to the third party.

After being notified that Parker had regained possession of the pumps, Romfor demanded that Parker refund Romfor $68,680, the total amount SOCO had invoiced Romfor for repairing and storing the Mud Pumps. Parker refused to refund any amount, claiming there was no contract for the sale of the Mud Pumps between itself and Romfor. Romfor filed suit against Parker in March 2006, alleging that Parker and Romfor contracted for the sale of the Mud Pumps and that Parker breached this contract. The jury found that Parker agreed to sell the Mud Pumps to Romfor and that Parker failed to comply with the agreement. The jury then awarded Romfor $68,571 in damages. The trial court entered final judgment in Rom-for’s favor, awarding Romfor $90,000 in damages and $100,000 in attorney’s fees, along with additional contingent attorney’s fees for appeal.

Parker raises three issues on appeal. In its first issue, Parker argues the evidence is legally insufficient to show the formation of a contract between Parker and Romfor for the sale of the Mud Pumps. Next, Parker asserts there is legally insufficient evidence to support the jury’s damage award of $68,571 and the trial court’s final damage award of $90,000. Finally, Parker contends the trial court’s award of $100,000 in attorney’s fees should be reversed because it is legally unsupportable.

II. Analysis

A. Standard of Review

In its first issue, Parker alleges there is no evidence of a contract between Parker and Romfor for the sale of the Mud Pumps. In a legal sufficiency or no-evidence review, we determine whether the evidence would enable reasonable and fair-minded individuals to reach the verdict under review. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). While conducting this review, we credit favorable evidence if reasonable jurors could and disregard contrary evidence unless reasonable jurors could not. See id. Jurors are the sole judges of the credibility of the witnesses and the weight to give their testimony, and we cannot impose our own opinions to the contrary. Id. at 819. We must consider the evidence in the light most favorable to the finding under review and indulge every reasonable inference that would support it. See id. at 822. We must, and may only, sustain no-evidence points when either (1) the record reveals a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of 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 conclusively establishes the opposite of the vital fact. See id. at 810.

B. Elements of Contract Formation

To recover for breach of contract, a plaintiff must show (1) the existence of a valid contract, (2) the plaintiff performed or tendered performance, (3) the defendant breached the contract, and (4) the plaintiff suffered damages as a result of defendant’s breach. Aguiar v. Segal, 167 S.W.3d 443, 450 (Tex.App.Houston [14th Dist.] 2005, pet. denied). A legally enforceable contract consists of (1) an offer, (2) acceptance in strict compliance with the terms of the offer, (3) a meeting of the minds, (4) each party’s consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding. Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555-56 (Tex.App.-Houston [14th Dist.] 2002, no pet.); see also AKIB Constr., Inc. v. Neff Rental, Inc., No. 14-07-00063-CV, 2008 WL 878935, at ⅜3 (Tex.App.-Houston [14th Dist.] Apr. 3, 2008, no pet.) (mem. op.). Whether the parties reached an agreement is a question of fact. Advantage Physical Therapy, Inc. v. Cruse, 165 S.W.3d 21, 24 (Tex.App.-Houston [14th Dist.] 2005, no pet.). Whether an agreement is legally enforceable, however, is a question of law. See id.; Gaede v. SK Invs., Inc., 38 S.W.3d 753, 757 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).

In this case, there is no writing signed by Parker acknowledging its acceptance of Romfor’s Offer. However, the jury could properly imply the formation of a contract between Parker and Romfor from any conduct by both parties recognizing the existence of a contract. See Tex. Bus. & Com.Code Ann. § 2.204(a) (Vernon 2009); Adams v. H & H Meat Prods., Inc., 41 S.W.3d 762, 771 (Tex.App.-Corpus Christi 2001, no pet.); see also Wal-Mart, 93 S.W.3d at 557 (describing implied contracts as those inferred from the acts and conduct of the parties when the facts and circumstances show a mutual intent to contract). The existence of an implied contract involves inferences drawn from circumstantial evidence and is therefore a question of fact. See Domingo v. Mitchell, 257 S.W.3d 34, 40 (Tex.App.-Amarillo 2008, pet. denied); Ishin Speed Sport, Inc. v. Rutherford, 933 S.W.2d 343, 348 (Tex. App.-Fort Worth 1996, no writ). Questions of contract formation must be resolved on objective standards, based upon the meaning reasonably conveyed by the parties’ actions and words rather than their uncommunicated subjective intentions. Harrison v. Williams Dental Group, P.C., 140 S.W.3d 912, 916 (Tex. App.-Dallas 2004, no pet.); Angelon v. African Overseas Union, 33 S.W.3d 269, 278 (Tex.App.-Houston [14th Dist.] 2000, no pet.). We view the conduct and circumstances surrounding the transaction from a reasonable person’s interpretation at that particular point in time. Wal-Mart, 93 S.W.3d at 557-58.

According to Parker, the only contract for the sale of the Mud Pumps shown by the evidence is between Parker and SOCO. Romfor argues a contract between itself and Parker is clearly shown by the Sales and Service Agreements, Romfor’s Offer, and the parties’ actions. After reviewing the record, we conclude there was no contract between Parker and Romfor for the sale of the Mud Pumps. There was no meeting of the minds between Parker and Romfor regarding the pumps, and the parties’ conduct shows that Parker contracted to sell the pumps to SOCO.

1. No Evidence of Acceptance of Romfor’s Offer

Parker contends the evidence shows it did not accept Romfor’s Offer in accordance with its terms and that “a different plan for the [Mud Pumps] was understood and followed by both Parker and Romfor.” To create an enforceable contract, there must be a clear and definite offer followed by a clear and definite acceptance in accordance with the offer’s terms. See Levin Law Group, P.C. v. Sigmon, No. 14-08-01165-CV, 2010 WL 183525, at *3 (Tex.App.-Houston [14th Dist.] Jan. 21, 2010, pet. denied) (mem. op.); Angelon, 33 S.W.3d at 278. A purported acceptance that changes or qualifies an offer’s material terms constitutes a rejection and counteroffer rather than an acceptance. See Lewis v. Adams, 979 S.W.2d 831, 834 (Tex.App.-Houston [14th Dist.] 1998, no pet.); see also Knowles v. Wright, 288 S.W.3d 136, 143 (Tex.App.Houston [1st Dist.] 2009, pet. denied) (recognizing the material terms of a contract must be agreed upon before a contract may be enforced).

The question of whether a contract contains all the essential terms for it to be enforceable is a question of law. See Beal Bank, S.S.B. v. Schleider, 124 S.W.3d 640, 653 n. 8 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). Contracts should be examined on a case-by-case basis to determine which terms are material or essential. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992); see also John Wood Group USA Inc. v. ICO, Inc., 26 S.W.3d 12, 20 (Tex.App.Houston [1st Dist.] 2000, pet. denied) (listing the essential elements for a contract for sale as (1) the object of the contract or thing sold, (2) the consideration to be paid, and (3) the parties’ consent to the exchange); cf. Black’s Law Dictionary 1510 (8th ed. 2004) (defining “material terms” as “contractual provisions] dealing with a significant issue such as subject matter, price, payment, quantity, quality, duration, or the work to be done”). Here, Romfor’s Offer contains the following material terms: (1) Romfor will purchase eleven items of equipment from Parker, including the Mud Pumps, (2) Romfor will pay Parker $84,000 for all eleven items, and (3) the Mud Pumps will be exported out of Bolivia while the remaining eight items are to be shipped along with Rig 118 to the Congo.

The record does not reflect a written response by Parker to Romfor’s Offer until July 10, 2003, when Carreras sent an email changing several of the offer’s terms to Breckon. The e-mail states, in relevant part:

As you will see [the Mud Pumps] are still in [Bolivia] for repairs. Due to local regulations, we will need to bill these with a local invoice, subject to VAT and Transaction Tax. The plan is for SOCO to be the buyer so they can finish the repairs and take care of the exportation whenever that happens. By doing this we can release Parker from the operations related to this sale, and hopefully wrap up everything in July.

Carreras’s e-mail also includes a document that further modifies Romfor’s Offer by separating the Mud Pumps from the other eight items Romfor wanted to purchase and breaking the $84,000 Romfor was willing to pay for all eleven items into two groups: $21,429 for the pumps and $66,000 for the remaining eight items.

It is clear that Carreras’s e-mail changed several of the material terms of Romfor’s Offer, including (1) the total number of items Romfor would purchase from Parker, (2) the total price Romfor would pay Parker for these items, (3) the price for the Mud Pumps, and (4) the party who would ultimately purchase the Mud Pumps from Parker. See John Wood Group USA, 26 S.W.3d at 20. By changing the material terms of the offer, Carrer-as’s e-mail constitutes a rejection of Rom-for’s Offer and a counteroffer. See Knowles, 288 S.W.3d at 143; Lewis, 979 S.W.2d at 834. Breckon acknowledged receiving this notification and stated he did not object because the sale of Mud Pumps was a relatively small portion of the Rig 118 project. This shows that Romfor was aware Parker planned to sell the pumps to SOCO and the parties acted according to this understanding. Romfor had ample notice that Parker did not accept its offer to purchase all eleven pieces of equipment in strict compliance with the offer’s terms, thus negating an essential element of contract formation. See, e.g., Wal-Mart, 93 S.W.3d at 555-56.

2. No Evidence of a Meeting of the Minds or Mutual Assent

Romfor argues Carreras’s e-mail does not show a rejection of Parker’s Offer because it was not sent until after Parker transported Rig 118 and the other eight items included in Romfor’s Offer to Africa. According to Romfor, Parker’s shipment of the eight additional items shows that Parker accepted Romfor’s Offer, thereby creating a contract for the sale of the Mud Pumps. In response, Parker argues the actions and communications of the parties show no meeting of the minds or mutual intent to contract for the sale of the Mud Pumps. We conclude that the acts of the parties related to the Mud Pumps do not show the existence of a contract between Parker and Romfor.

Regardless of whether a contract is based on express or implied promises, mutual assent must be present. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 850 (Tex.2009). In cases involving implied con-tráete, mutual intent is inferred from the circumstances. Id. In determining whether mutual assent is present, courts consider the communications between the parties, the acts and circumstances surrounding the communications, and any course of dealing between the parties. See Haws & Garrett Gen. Contractors, Inc. v. Gorbett Bros. Welding Co., 480 S.W.2d 607, 609 (Tex.1972); Angelon, 33 S.W.3d at 278. The minds of the parties must also meet with respect to the agreement’s subject matter and essential terms. See Wal-Mart, 93 S.W.3d at 556. The determination of a meeting of the minds is based on the objective standard of what the parties said and did, not on their subjective states of mind. Angelón, 33 S.W.3d at 278. This determination is a question of fact, and the factfinder’s decision that one party reason ably drew the inference of a promise from the other party’s conduct will be given legal effect. Id.; see also Fraud-Tech, Inc. v. Choicepoint, Inc., 102 S.W.3d 366, 386 (Tex.App.-Fort Worth 2003, pet. denied). The parties’ conduct determines the terms of the contract on which the parties’ minds met. See Wal-Mart, 93 S.W.3d at 557.

According to Breckon, Parker indicated it would provide Romfor additional equipment related to Rig 118 at a discount because Parker withdrew its offer to sell Rig 220 to Romfor. Breckon testified he “offered very low prices” in Romfor’s Offer to “make back some of this bait and switch that [Parker] had done” with the price difference between Rig 220 and Rig 118. Romfor argues that these facts, considered with the parties’ actions and communications surrounding the Sales Agreement and the Service Agreement, show a meeting of the minds between Parker and Romfor. The evidence, however, proves the contrary.

Neither the Sales Agreement nor the Service Agreement mentions any of the items included in Romfor’s Offer. The Service Agreement simply states that Parker will be responsible for “performing] certain services in connection with Rig 118.” Romfor argues these “certain services” included refurbishing and exporting the Mud Pumps according to the terms of Romfor’s Offer. There is, however, no evidence that Parker was involved in repairing the Mud Pumps. Instead, Parker released the pumps to SOCO, who then informed Romfor that it was repairing the pumps. Carreras subsequently notified Romfor that Parker would sell the pumps to SOCO. Breckon acknowledged receiving this notification, and Romfor voiced no objection. All of the communications regarding repairs performed on the Mud Pumps were between Romfor and SOCO. This course of dealing is different than Parker’s involvement in the repairing of Rig 118. The Rig 118 repairs were overseen by Mike Alborta, Parker’s operations manager, and performed by ex-Parker employees selected by Romfor and hired by SOCO. Alborta, along with many of the individuals hired by SOCO, obtained employment with Romfor and went to the Congo with Rig 118 at the end of June 2003. This left Parker with no representatives involved in repairing the Mud Pumps. Breckon acknowledged at trial that SOCO was involved in repairing the Mud Pumps in exactly the same way as Parker was involved in the Rig 118 project, thus differentiating Parker’s obligations under the Service Agreement and its activities related to the pumps.

Additionally, none of the documentary evidence in the record points to a contract for the Mud Pumps between Parker and Romfor. Parker’s communications to Romfor plainly state that SOCO would purchase the pumps from Parker, and the Parker/SOCO Invoice does not mention Romfor. Carreras testified the Parker/SOCO Invoice constituted a transfer of ownership and that Parker removed the pumps from its asset records after issuing the invoice. Carreras and Breckon both testified that Parker, Romfor, and SOCO understood that Parker would not be paid the pumps’ $21,429 purchase price until Romfor first paid SOCO. Parker continuously looked to SOCO for payment of the purchase price and only SOCO attempted to recover funds related to the Mud Pumps directly from Romfor. Additionally, none of Parker’s documentation related to the Service Agreement reference the Mud Pumps. In September 2003, Parker invoiced Romfor $230,537.61 for Service Agreement obligations. This amount included $66,000 for the eight items from Romfor’s Offer shipped with Rig 118 but does not include any amount for the Mud Pumps. Romfor paid the $230,537.61 directly to Parker, and Breckon acknowledged the $66,000 charge for additional assets sent with Rig 118 did not include the Mud Pumps.

This evidence clearly shows that each of the parties acted as though Parker sold the Mud Pumps to SOCO, not to Romfor. Parker invoiced the Mud Pumps to SOCO, only SOCO was involved in repairing and seeking payment for the pumps, and the pumps were not included in any of Parker’s requests for payment under the Sales or Service Agreements. After objectively reviewing the parties’ communications, acts, and circumstances surrounding the communications, we find there was no meeting of the minds or mutual intent to contract for the sale of the Mud Pumps between Parker and Romfor. See Haws & Garrett, 480 S.W.2d at 609; Angelou, 33 S.W.Sd at 278. Also, based on the evidence showing that Romfor did not object to Parker’s proposal to sell the pumps to SOCO, we conclude the jury could not determine that Romfor could reasonably infer a promise by Parker to sell the Mud Pumps to Romfor. See Fraud-Tech, 102 S.W.3d at 386; Angelou, 33 S.W.3d at 278. Therefore, the evidence shows there was no meeting of the minds or mutual assent to contract between Parker and Romfor. See Levin Law Group, 2010 WL 183525, at ⅜4-5 (concluding no contract to mediate existed where the “communications between the parties and the acts and circumstances surrounding those communications” did not indicate a meeting of the minds regarding the essential terms of an alleged contract to mediate); see also Wal-Mart, 93 S.W.3d at 557 (stating a meeting of the minds regarding contract terms is determined by the parties’ conduct).

Although Texas law favors validating transactions rather than voiding them, a reviewing court may not create a contract where none exists. See Knoivles, 288 S.W.3d at 143. After reviewing the evidence in the light most favorable to the verdict, we find that Romfor failed to prove each of the elements necessary to establish the existence of a legally enforceable contract. See Advantage Physical Therapy, 165 S.W.3d at 24 (recognizing the existence of a legally enforceable agreement is a question of law); Wal-Mart, 93 S.W.3d at 555-56 (stating there must be a meeting of the minds and acceptance in strict compliance with an offer’s terms to form a valid contract). This renders the evidence legally insufficient to support the jury’s verdict. See City of Keller, 168 S.W.3d at 810 (stating evidence is legally insufficient when record reveals a complete absence of a vital fact). Accordingly, we sustain Parker’s first issue.

C. Parker’s Remaining Issues

Because there is legally insufficient evidence of a contract between Parker and Romfor, Romfor is not entitled to recover breach-of-contract damages. See Peterson v. Jansen, No. 14-07-00535-CV, 2009 WL 334915, at *6 (Tex.App.-Houston [14th Dist.] Feb. 12, 2009, no pet.) (mem. op.) (listing the existence of a valid contract as a prerequisite to recovery for breach of contract); Aguiar, 167 S.W.3d at 450 (same). Additionally, an award of attorney’s fees in a breach of contract claim is appropriate only if a party prevails and recovers damages. See Tex. Civ. Prac. & Rem.Code Ann. § 38.001(8) (Vernon 2008) (allowing recovery of attorney’s fees in valid claims involving oral or written contracts); State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 437 (Tex.1995); Peterson, 2009 WL 334915, at ⅜6. Thus, there is no legal basis for the recovery of either damages or attorney’s fees and the awards in the judgment for damages and attorney’s fees fail on this basis. Thus, we do not reach Parker’s second issue challenging the sufficiency of the evidence to support the damages award or Parker’s third issue challenging the reasonableness of the attorney’s fees awarded.

III. Conclusion

After reviewing the evidence in the light most favorable to the verdict, we find the evidence is legally insufficient to show the existence of a contract for the sale of the Mud Pumps between Parker and Romfor. Because no legally enforceable contract was formed in this case, Romfor is not entitled to recover breach-of-contract damages or attorney’s fees. Accordingly, we reverse the trial court’s judgment and render judgment that Romfor take nothing.

      . Mud pumps act as the "circulatory system” for the drilling rig by circulating drilling fluid down drilling holes.

      . SOCO is a Bolivian company that assisted in Rig 118's repairs by coordinating catering and transportation services and by hiring ex-Parker employees selected by Romfor to repair the rig.

      . The trial court added $21,429 — the amount SOCO ultimately paid Parker for the Mud Pumps — to the jury's damage award.

      . Romfor contends Parker raises a statute of frauds defense on appeal and that Parker waived this argument by failing to raise the issue before the trial court. See Tex.R. Civ. P. 94 (listing statute of frauds as an affirmative defense); Swinehart v. Stubbeman, McRae, Sealy, Laughlin & Browder, Inc., 48 S.W.3d 865, 875 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (stating statute of frauds defense is waived if it is not pleaded). We agree with Parker that this contention lacks merit, as Parker is simply challenging the legal sufficiency of the evidence to prove the existence of any contract, written or otherwise, to sell the Mud Pumps between itself and Romfor.

      . We note that each of these documents were executed at different times and do not expressly refer to one another. However, we may consider them together to ascertain the parties’ intent. See City of Keller, 168 S.W.3d at 811; Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex.2000). Additionally, although Parker and Caroil are the Service Agreement’s only signatories, Romfor was heavily involved in negotiating the Sales Agreement, the Sales Agreement provides for written notices to be copied to Romfor and names Romfor as Rig 118’s purchaser, and Caroil’s payment of the rig’s purchase price was coordinated by Romfor.

      . This total includes $6,000 for each individual Mud Pump plus an additional $3,428.57 in taxes.

      . See also Potcinske v. McDonald Prop. Invs., Ltd., 245 S.W.3d 526, 530-31 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (upholding trial court’s determination that no contract was formed between parties where offeree changed offer’s financing option, a material term, and offeror failed to accept the requested change); Gasmark, Ltd. v. Kimball Energy Corp., 868 S.W.2d 925, 928 (Tex.App.-Fort Worth 1994, no writ) (determining offeree significantly altered terms of natural gas purchase and sales contract offer by sending an amended purchase agreement changing billing and payment provisions); cf. Adams, 41 S.W.3d at 768-73 (finding buyer liable for breach of contract damages where seller was not paid for three shipments of meat products delivered by seller to intermediary, despite non-existence of signed writing by buyer guaranteeing payment for delivery to intermediary, where buyer instructed seller to send product to intermediary for permit purposes and unpaid shipments directly matched buyer’s orders).

      . In one internal e-mail discussing SOCO’s interest in purchasing equipment from Parker, Carreras states “as a reference[,] we sold RomFor [sic] PZ-9's at USD 6,000 each.” Romfor argues this evidence shows die pumps were, in fact, sold by Parker to Rom-for. This statement is conclusively negated by the undisputed documentary and testimonial evidence showing the only party ever invoiced or billed for the pumps by Parker was SOCO. This e-mail does not constitute legally sufficient evidence to show the formation of a contract between Parker and Romfor. See City of Keller, 168 S.W.3d at 820 (stating jury may not credit evidence that is conclusively negated by undisputed facts).

      . Romfor points to a September 19, 2003 email from Carreras to Breckon referencing several "SocoRomfor” invoices — including the Parker/SOCO Invoice — as evidence that Parker sought payment for the pumps directly from Romfor. However, the e-mail clearly asks Breckon to “coordinate with SOCO to make the payment so [Parker! can collect the money that is pending.” This message does not show that Parker sought payment of the purchase price from Romfor.